Archive for the ‘Family Law’ Category
Personhood Amendments: Be Careful What You Wish For
posted by Gilbert Holmes
In the last election, the voters of the State of Mississippi failed to pass a referendum that would have declared a fetus a “person” under the Mississippi Constitution. Specifically, Article III of the constitution of the state of Mississippi would have been amended by adding a new Section 33. Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” Since the defeat of the Mississippi referendum, movements for a similar amendment have arisen in close to a dozen other states and Members of Congress have introduced three bills that would likewise declare a zygote to be a person from conception. Much of the debate about the defeated Mississippi amendment and the subsequent proposals involved the question of the impact of the laws on abortion and other reproductive issues such as birth control. However, one potential aspect of these proposals appears to have been ignored in the discussions; what other legal rights would attach to the zygote/fetus once “personhood” is conferred.
The American legal system has wrestled with the legal status of minors for more than a Century. At one time, parents and guardians had total control over the lives of the children under their charge. Parents, primarily fathers were entitled to the services of their children and could under certain circumstances kill their children with the approval of the government. Moreover, parents could “lease” their children out to others for the payment of debts, the generation of income, or merely because they could not afford to support and maintain their children. In essence, the law viewed children as property.
Beginning in the latter part of the 19th Century, reformation movements began to challenge the status and treatment of children and undermined the legal concept of children as property. Child labor laws, compulsory education laws, and eventually laws prohibiting child abuse and neglect created a new perception of children as entity worthy of protection from their parent, guardians and even employers. Children were no longer property, but were people. However, once the law determined that children were not the property of their parents or guardians, the question of what status children hold under the law has been a challenging proposition. Several cases developed a jurisprudence involving parents’ responsibilities related to the actions involving their children. In Meyers v. Nebraska (teaching a foreign language before 8th grade), Pierce v. Society of Sisters (children attending private school), Prince v. Massachusetts (child distributing religious literature at night), and West Virginia v. Barnette (children forced to say the pledge of allegiance), the U.S. Supreme Court examined the liberty interest of parents with barely a mention of the children’s legal status.
Starting in the mid-1960s (In Re Gault [juvenile justice case] and Tinker v. Des Moines Independent School District [free speech in public school]) and through 2007 (Morse v. Frederick [free speech outside of the school building]), the Court has declared children to be “persons” under the Constitution and wrestled with the implications of that declaration. One of the major challenges that the Court and legal scholars have faced is the oxymoron of children as legal persons. One of the significant underpinnings of our Constitutional jurisprudence regarding individual rights is the concept of choice. The Bill of Rights fundamentally protects individual freedom to make choices – the choice to speak publically, worship according to individual beliefs, the choice to remain silent when charged with a crime and to refuse to be searched without prior government authorization. At the same time, the law declares children to be incompetent to make choices because of their purported lack of capacity, particularly when they are very young, including the time when they cannot speak for themselves. How does a minor operate as a person whose choices in certain areas are constitutionally protected when the law says that the same minor lacks the capacity to make enforceable choices?
Taking this dilemma to the current movement to enact Personhood Amendments, the dilemma becomes even more challenging. The legal system has difficulty determining how to recognize, manifest and protect the choices of minors who can articulate a choice, or infants who possibly could demonstrate a choice. How could it determine how to recognize, manifest or protect the choice of a zygote or a fetus, as arguably be required if the status of personhood is granted under the Personhood Amendments? It would seem that even the strongest advocate for children’s rights would be at a loss in articulating a method to answer this question. It almost comes down to this. Children as persons under the Constitution – whether federal or state – are a legal oxymoron that present significant legal dilemmas. A zygote or fetus as a legal person is an oxymoron on steroids, defying solutions to a larger than life legal dilemma.
November 26, 2011 at 8:23 am
Posted in: Constitutional Law, Family Law
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Pregnancy and Disability
posted by Jennifer Hendricks
Yesterday I posted about a dilemma in parental leave policies: The desire for formal sex equality leads to equal “caretaking” leave for men and women; when this leave is paid by the employer, it is typically quite short. The reality of biological differences is dealt with by providing separately for “disability” leave for pregnant and birthing women, often for a much longer period. In practice, that means that a woman who gives birth has an extended opportunity to bond with and care for a new child, while people who become parents in other ways do not. This creates an early discrepancy in caretaking between birthing and non-birthing parents. When children are adopted, the family as a whole suffers from not having that extra leeway for caretaking.
A woman in New York has filed a suit challenging these inequities in a novel way: Kara Krill received 13 weeks of paid maternity leave when she gave birth to her first child. Krill was unable to bear another child, and she and her husband hired a gestational surrogate, who gave birth to twins. This time, Krill was allowed only 5 days of leave, under the company’s policy for adoptive parents. Her suit alleges disability discrimination, saying that if it weren’t for her disability, which required her to have her children through a surrogate, she would have given birth and been entitled to the full 13 weeks of leave.
Krill faces an uphill battle under current law. I’m drawn, however, to the idea of designing parental leave policy around the idea that the inability to give birth is a disability that should be accommodated—and not just for women. Read the rest of this post »
October 5, 2011 at 4:31 pm
Posted in: Employment Law, Family Law, Feminism and Gender
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Sex Equity in Parental Leave
posted by Jennifer Hendricks
Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:
U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.
The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Read the rest of this post »
October 4, 2011 at 6:10 pm
Posted in: Employment Law, Family Law, Feminism and Gender, Uncategorized
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Book Review: Banks’s Is Marriage for White People? How African American Marriage Decline Affects Everone
posted by June Carbone and Naomi Cahn
Richard Banks,Is Marriage for White People? How African American Marriage Decline Affects Everyone (Dutton 2011).
A half century ago, high rates of marriage were close to universal. The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising. Today, marriage has emerged as a marker of class for the country as a whole. For the first time ever, fewer than half of all households consist of married couples. Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair. According to the National Marriage Project, the likelihood of marrying, staying married and raising children within marriage correlates strongly with education. Compared to twenty years ago, the likelihood that a fourteen-year old girl will be in a family with both parents has risen for the children of college graduates and fallen substantially for everyone else. In the midst of cries of alarms about family decay, marital stability has increased for college graduates with declining divorce rates and non-marital birth rates that have stayed below ten percent. As in 1965, however, the notable exception to the rosy picture for family stability, at least for the elite, comes from African-Americans. While the white non-marital birth rate for college graduates has stayed at 2%; for African-American college graduates, the numbers are rising and now approach the 25% level that caused such alarm at the time of the Moynihan report. National Marriage Project, fig. S.2, p. 56.
Stanford Law Professor Richard Banks, in a book that has already triggered fireworks, courageously addresses the issue. In Is Marriage for White People? How the African American Marriage Decline Affects Everyone, he points out the enormous disparity between the marriage rates of black men and black women and the fact that the issue is no longer one limited to the black underclass. While marriage has effectively disappeared from the poorest communities (the non-marital birth rates for black high school dropouts is 96%), Banks’ concern is successful African-American women. Their marriage rates have been dropping, and their dissatisfaction with the behavior of black men is the subject of plays, movies and Banks’ book. Banks’ explanation is straightforward: black women have been so disproportionately successful that they outnumber the men. So, too, is his solution. He writes the book to argue that the only realistic choice for African-American women is to marry outside the race and as a prominent African-American male, he is effectively giving them permission.
While Banks does an exceptional job describing the plight of the most talented African-American women (the book has good stories in addition to its good statistics), he punts on a number of issues. He treats the behavior of the men as a consequence of the numbers game and, rather than exhort black men to do better by their women, he addresses the book to the women – give up, if you can, on racial exclusivity and the men, facing a more competitive market, will have to come around. He also does not question the importance of marriage. Some would celebrate the freedom to create a variety of family relationships and associate higher rates of marriage with male dominance. On this issue, Banks gets a pass. He does not take on the larger issue of family organization. Instead, he addresses the pain of well-educated African-American women who want a committed partner in their lives and are frustrated in their inability to find one.
August 28, 2011 at 3:21 pm
Posted in: Book Reviews, Family Law, Race
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Same-Sex Couples and Divorce
posted by Courtney Joslin
Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.
As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”
Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.
My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.
In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.
July 12, 2011 at 11:30 am
Posted in: Civil Procedure, Constitutional Law, Family Law, Feminism and Gender, LGBT
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Sidebar Publishes Response to “Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality”
posted by Columbia Law Review
Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Adrienne Davis’s article Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, by Professor Elizabeth M. Glazer of the Hoftra University School of Law.
In “Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality” Professor Davis rejects the analogy between gay marriage and polygamy and instead “turns to commercial partnership law to propose some tentative default rules that might accommodate marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered.” In her response, Professor Glazer “uses Davis’s examination of the same-sex marriage analogy to polygamy in order to examine why a better analogy—namely, that between sodomy and polygamy—has not been quite as frequently invoked.” Professor Glazer argues that those favoring legalization of polygamous marriage should analogize it to sodomy, rather than same-sex marriage for two reasons: (1) the effort to lift sodomy bans has been much more successful than the effort to win legal recognition for same-sex marriages and (2) sodomy and polygamy share in common a history of criminalization which same-sex marriage does not.
June 23, 2011 at 9:00 pm
Posted in: Family Law, Law Rev (Columbia)
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Divorce Law Beats Fraud, Maybe Contract
posted by Lawrence Cunningham
We’ve debated whether mutual mistake is a ground to rescind divorce settlements dividing marital property based on an account held with Madoff. The New York Court of Appeals will soon decide in the case of Simkin v. Blank.
As a matter of contract law, in my opinion, they should be rescindable, when people cannot reasonably be supposed to have allocated the risk that an account was fraudulent.
As I noted in Peter Lattman’s N.Y. Times story on the pending Simkin case, the real policy debate pits principles of contract law, about protecting party risk allocation, against principles of domestic relations law, where the finality of divorce settlements might warrant upholding even such mutually mistaken contracts.
The New York Court of Appeals today issued an opinion, CFTC v. Walsh, with clues about this balance. Today’s divorce settlement case involves an innocent spouse who received millions of dollars from an ex who allegedly committed a spectacular securities fraud (amounting to some $550 million).
Federal agencies want to recover the property from the innocent spouse. The defense: the millions counted as marital property and the settlement agreement makes it hers, even if fraudulently obtained and once belonging to innocent victims.
The Court thus weighed whether to privilege the public policy intended to restore stolen property to rightful owners or the one favoring finality of divorce settlement agreements. Read the rest of this post »
June 23, 2011 at 6:12 pm
Posted in: Contract Law & Beyond, Family Law
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Same-Sex Marriage in New York
posted by Courtney Joslin
2009 was a big year for same-sex marriage. In 2009, the Iowa Supreme Court became the first state high court to issue a unanimous opinion in favor of marriage equality for same-sex couples. 2009 was also the year in which a U.S. jurisdiction (well, it turned out to be jurisdictions) achieved marriage equality legislatively. Vermont was the first such jurisdiction, followed by New Hampshire, Maine, and then DC. (Ultimately, however, the Maine legislation was repealed by voter referendum.) Although a number of states — including Delaware, Hawaii, and Illinois — have enacted civil union legislation since then, no additional states have been added to the marriage equality list.
But that might change soon; New York might join the list in the near future. Many expected New York to approve same-sex marriage legislation in 2009, but that did not come to pass. This time around, the legislation has support from a broad range of sources. Last week, the New York Times reported that the same-sex marriage campaign in New York is receiving “the bulk of their money” from “a group of conservative financiers and wealthy donors to the Republican Party.” There is also support from New York political leaders, including New York City Mayor Michael Bloomberg, and Governor Andrew Cuomo.
Another source of support is the organized Bar. A press conference was held today in New York by various bar associations that support marriage equality. The groups include the New York State Bar Association and the Association of the Bar of the City of New York, along with a number of other New York state and local bar associations. The list of supporters also comprises a wide array of minority bar associations, including the Asian American Bar Association of New York, the Dominican Bar Association, the Hispanic National Bar Association, the Muslim Bar Association of New York, the Puerto Rican Bar Association, the South Asian Bar Association of New York, and the Women’s Bar Association of the State of New York.
Last year, in August 2010, the American Bar Association likewise took a position in support of marriage equality. The resolution, which was approved overwhelmingly by the ABA House of Delegates, provides that the ABA urges states to “eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”
A recent poll reported that 58% percent of New Yorkers support marriage equality for same-sex couples.
May 17, 2011 at 1:06 pm
Posted in: Civil Rights, Current Events, Family Law, LGBT, Politics, Uncategorized
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The Old Illegitimacy Part II: Facilitating Societal Discrimination
posted by Solangel Maldonado
In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts. The harms resulting from the law’s continued distinctions on the basis of birth status are significant. For example, these distinctions impair nonmarital children’s ability to acquire property and wealth. While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.
These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support. It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital. Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.
These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise) to make negative assumptions about unmarried parents and their children. Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children. Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child. Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse. They also expect nonmarital children to underachieve academically, economically, and socially.
March 15, 2011 at 10:27 pm
Posted in: Constitutional Law, Estates and Trusts, Family Law, Immigration
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The Old Illegitimacy: Legal Discrimination Against Nonmarital Children
posted by Solangel Maldonado
Professor Nancy Polikoff is organizing a conference titled The New “Illegitimacy”: Revisiting Why Parentage Should Not Depend on Marriage, at American University, Washington College of Law, March 25-26. Many of the speakers will be focusing on the law’s discrimination against children of same-sex couples whose parents are not married or in a civil union. Some scholars believe that “illegitimacy-based discrimination has largely faded from the legal (and social) landscape” and that the children of same-sex couples are the only group that still experience discrimination on the basis of birth status. In reality, however, children of married couples (both opposite and same-sex) continue to reap legal and societal privileges that are denied to their nonmarital counterparts (regardless of their parents’ sexual orientation).
For most of U.S. history, “illegitimate” children, as they were referred to historically (and even now by some courts), suffered significant legal and societal discrimination. They had no legal right to parental support, intestate succession, or government benefits available to marital children. They were stigmatized as “bastards” and frequently denied access to social, professional, and civic organizations. Lawmakers and society justified their abhorrent treatment of nonmarital children on the ground that it would deter men and women from having children out of wedlock.
March 13, 2011 at 6:00 pm
Posted in: Constitutional Law, Family Law
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Money Matters in Ongoing Marriage Law
posted by Alicia Kelly
Married life is characterized by a sharing norm. As I described in an earlier post, spouses commit to and in fact engage deeply in sharing behavior, including a shared family economy. Overwhelmingly, spouses pool economic resources, including labor, and decide together how to allocate them to benefit the family as a whole.
In addition to its affects in the paid labor market (see my last post), sharing money matters inside a functioning marriage. It shapes the couple relationship as well as each partner individually. Research shows that in an ongoing marriage, money is a relational tool. For example, making money a communal asset is a way to demonstrate intimacy and commitment, and that can nurture a couple’s bond. Yet, in some circumstances, an assignment of resources to just one spouse can also be understood (by both partners) to be appropriate and deserved—a recognition of the individual within a sharing framework. Conversely, it is also possible that spouses’ monetary dealings can undermine individual autonomy and the relationship as well. For example, one person might exercise authority over money in a way that disregards the other. Accordingly, power to influence financial resource allocation within the family is important for individual spouses and for togetherness.
It becomes a special concern then, that sharing patterns in marriage are gendered. As highlighted in my previous post, role specialization remains a part of modern intimate partner relations. Particularly true for married couples, men continue to perform more as breadwinners, and women more as caregivers. As a result, women tend to have reduced earning power in the market. How does this market asymmetry translate into economic power at home? Happily, in a significant departure from the past, a majority of couples report that they share financial decisionmaking power roughly equally. Indeed, most married couples today endorse gender equality as an important value in their relationship. However, in a significant minority of marriages, spouses agree that husbands have more economic power. For some couples then, a husband’s breadwinning role and/or perhaps his gender, confers authority in contentious money matters.
How should law governing an ongoing marriage respond to these sharing dynamics? Consider this hypothetical fact situation. A husband has a stock account from which he plans to make a gift to his sister who he feels really needs the money. The husband suspects that his wife would not approve of the gift. Even though the wife too loves the sister, she believes the sister is irresponsible with money. Let’s assume that the money in that stock account was acquired while the parties were married, and that it came from the market wages of one or both of the spouses earned during marriage. It was a product of the couple’s shared life. Does contemporary law allow the husband to give his sister the gift without her consent? Without even telling her? How should legal power over the money be allocated?
October 1, 2010 at 1:04 pm
Posted in: Family Law, Feminism and Gender, Law and Inequality, Law and Psychology, Legal Theory, Property Law, Psychology and Behavior, Uncategorized
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Book Review: Gender Pressures (Reviewing Williams’s Reshaping the Work-Family Debate)
posted by June Carbone
This book review is co-authored by Naomi Cahn.
Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter (Harvard 2010), 304 pp.
As the unemployment rate increases, as we chart the rise of the Tea Party and the Republican Party’s ability to express disdain for the unemployed without significant political cost, Americans lack a roadmap for the role of class and gender in the new American landscape. Joan Williams’ book, Reshaping the Work-Family Debate: Why Men and Class Matter (Harvard 2010), supplies that roadmap. The book creates an innovative critical framework for examining the relationship between law, work and family in the post-industrial economy and for ensuring that both men and women are included in any revisioning of this relationship.
The book builds on Williams’ earlier research exploring the maleness of the workplace and expands it dramatically. Williams starts with the caustic observation that “we still have a workplace perfectly designed for the workforce of the 1960’s.” That workplace depended on the availability of “ideal workers,” who could meet employer expectations premised on the availability of someone else to tend to the children, run the necessary household errands, and make the work-family relationship work. While today’s workplaces successfully assimilate women who participate on the same terms as men, they remain remarkably resistant to creating more supportive environments that would assist parents – male or female – in balancing the competing demands between work and family. The curious question is why. Williams makes the case that more flexible workplaces would benefit employers and that the U.S. is so far from the norm that it can boast “the most family-hostile public policy in the developed world.” She argues that the key to changing it, as her subtitle suggests, requires bringing class and the construction of gender into the debate. She shows how the hidden injuries of class fuel gender traditionalism and the culture wars associated with a conservative resurgence.
Where the book moves most significantly beyond Williams’ earlier work is placing the debate over the workplace at the intersection of class and gender. The first part of the book thus retells the story of work-family conflict. The initial chapter takes on the story that while well-educated women are not more likely tot drop out of the work place, they may face the most intense choices between the remade ideal of super- mothering (the new helicopter parents) and workplace norms that prize total dedication. The second chapter then tells the often heartbreaking stories of the dilemmas working class parents face; these dilemmas are often not so much about time as flexibility – the inability to make a personal phone call can affect children’s lives.
The middle part of the book links these developments to the remaking of workplace norms of masculinity. In 1965, class had little to do with leisure; executives and union members worked about the same hours. Today, the American elite works longer hours than most of the rest of the world while working class men put in fewer hours than they did in 1965. The new “macho” norm for law firm associates or Silicon Valley engineers is total dedication; for the working class men on an oil rig, it continues to be physical bluster. Williams argues, however, that both competitive norms not only drive women away, they are also bad for business. Industry productivity goes up when the company takes into account the costs of attrition and the lack of cooperation. Workplaces with mixed rather than macho gender norms outproduce the competition.
September 27, 2010 at 11:54 pm
Posted in: Book Reviews, Civil Rights, Family Law, Feminism and Gender, Law and Inequality
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Intimate Partner Sharing and Commitment Today
posted by Alicia Kelly
My thanks to Angel Maldonado and the rest of the Concurring Opinions team for inviting me to blog this month. During my guest stint I will highlight the law’s involvement in the everyday lives of couples, exploring the intersections of law, sharing and economic behavior and gender relations.
Is longstanding connection and commitment falling out favor? Does solitary individualism rule our times, even in our personal relationships? It is easy to see the disconnects around us. Pick the celebrity divorce of your choice as an example. After forty years of marriage, even Al and Tipper called it quits. So do a lot of ordinary couples. Although declining a bit in recent decades, divorce rates remain high and cohabitants break up rates are even higher. Some even suggest that marriage itself should be on the chopping block—get the state out of intimate relationships, don’t privilege one kind of relationship over another, and leave adults to choose, define and resolve their own relationships.
But failures and worries of relationship failures notwithstanding, the vast majority of American’s today still desire and in fact pursue deep long lasting relations with an intimate partner, and for many, marriage is still seen as the ideal. Although marriage rates have decreased and vary, especially by race and socioeconomics, most people in the U.S. still get married. Lifetime marriage rates from the 2000 census show that overall 86% of men and 88% of women have married at least once by the time they are 49. Interestingly, many unmarried folks are also enthusiastic about marriage. For example, Pew Research Center data from a 2007 survey found that most unmarried adults say they want to marry. Both the never-married parents as well as the cohabiters in the survey were more skeptical than all others that a person can lead a complete and fulfilled life if he or she remains single. No doubt then, committed coupling is still very much in vogue. Something remains powerfully attractive about being part of an intimate partner relationship more generally and for many, about marriage in particular.
What so many people are after is a committed sharing relationship—a protected arena to build and enjoy a web of interdependent connections that bridge the gap between individuals. For many, marriage is the vehicle of choice for this kind of relationship, although surely, cohabiting relationships recurrently serve these goals as well. Because cohabitation is more variable, I will focus on marriage for now, as marriage clearly includes a strong sharing norm. Research demonstrates that extensive sharing is viewed as a centrally important goal for marriage. And behavior reflects this. Although not in every way, and certainly not always perfectly accomplished, spouses regularly engage in an interdependent sharing of their lives, socially and economically.
How should law regard sharing commitments and behavior among couples? Should sharing be supported and nurtured? For any couple who desires it? In what form? Should law funnel intimate partner sharing into a particular relationship structure such as marriage or perhaps civil unions? Or should law seek to reduce interdependence and maximize independence for partners? Alternatively, perhaps law should withdraw altogether and leave it to couples to govern themselves?
September 2, 2010 at 4:09 pm
Posted in: Family Law, Feminism and Gender, Property Law, Uncategorized
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Is There a Constitutionally Protected Right to Use Reproductive Technologies?
posted by Glenn Cohen
A few months back Jessie Hill had a blog post entitled “My so-called right to procreate” asking about the scope of procreative liberty protected by the Constitution. I wrote about this issue in passing in a paper devoted to the opposite question, whether the constitution protect a right NOT to procreate (or what I prefer to think of as rights not to procreate, separable sticks in a bundle encompassing the right not to be a legal, gestational, or genetic parent – indeed as I pointed out there, I think the right to procreate should be similarly unbundled). In a new paper entitled Well, What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction, as part of a larger project on the justifications for the regulation of reproduction I briefly address a slightly narrower issue than the one in Jessie’s post, whether there is a negative liberty fundamental right to non-interference with reproductive technology use. I thought I would set out and expand on that discussion here and see what other readers thought.
My own view is that the constitutional status of state interventions preventing access to reproductive technologies (either directly, e.g., prohibitions on access to reproductive technology for women over age 50 or through regulation, or indirectly, e.g., parental fitness screening for surrogacy users) is deeply under-determined by the existing doctrine. The only U.S. Supreme Court decision to consider whether there is a fundamental right to become a genetic parent, Skinner v. Oklahoma, 316 U.S. 535, 536-39 (1942) (finding a fundamental right that was violated by physical sterilization of individuals convicted three or more times of crimes of moral turpitude but not embezzlement) is subject to a myriad of possible interpretations especially as applied to reproductive technologies.
Here are a few:
Skinner protects as a fundamental right any use of reproductive technologies that simulates that which would be achievable by coital reproduction in the fertile individual (not, therefore, something like genetic engineering). John Robertson is the person I most closely associate with this view (although his view has considerably more nuance that I can get across here).
On the other extreme, one might argue that because Skinner itself was premised on an Equal Protection claim not a substantive Due Process one and thus there is no substantive Due Process right to Procreate at all. Cf. VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-TRIUMPH OF AMERICAN EUGENICS 165 (2008) (concluding that “both liberals and conservatives have made a mistake” in their reading of Skinner because the case was “neither argued nor decided as a case about rights in the sense that we use the term ‘fundamental right’ today).” That said, over the years the Court has lumped Skinner in with its substantive Due Process jurisprudence so often that the time may have passed for hewing to this distinction.
In between there are several other positions:
August 24, 2010 at 9:38 am
Posted in: Bioethics, Civil Rights, Constitutional Law, Family Law, Health Law, Jurisprudence, Uncategorized
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A Tale of Two Gay Marriage Litigations: To Stay or Not to Stay?
posted by Glenn Cohen
While Perry and the Prop 8 litigation has been getting most of the attention in the media and blogosphere, the Massachusetts District court decisions in Gill v OPM and Massachusetts v. Dep’t of Health & Human Services striking down parts of the Defense of Marriage Act are in some ways the more interesting (and if upheld more meaningful) decisions. Today, though, I noticed reporting that Gay & Lesbian Advocates & Defenders (GLAD) the Massachusetts-based gay rights group that ligated Gill among many other major LGBT rights cases (including the MA gay marriage case, Goodrich) had agreed to stay the ruling while the DOJ decided whether to take an appeal. I thought this was an interesting contrast to Boies and Olson’s decision to fight the stay of Perry at each stage. Of course there are a number of legal differences between the cases — in the press release GLAD points to not wanting to have to pay back benefits if the decision is overturned and there is a possibility that the Obama administration may relent in its opposition to the suit — but I find the strategic/political perspective even more intriguing here. Would Olson and Boies have been perceived to have let down their backers if they did not fight the stay, whereas as more institutional repeat player like GLAD has already built up significant goodwill? Are there good strategic reasons why the Perry litigators want to try and accelerate their litigation while the Gill ones want to maintain the typical pace, or is this instead a matter of the litigators’ own interests? Are Boies and Olson more confident of a good reception than the Gill lawyers at the Supreme Court now, and are they right to be? Which case is the one someone supportive of these efforts should want to see get to the cert stage first? How does the standing to appeal issue in Perry fit in to the calculation? Part of it may also just be a reflection of the slowness of the 9th Circuit’s typical docket as compared to the lithe 1st Circuit, such that even with the stay acceleration in Perry the Gill case gets resolved first. Lots of questions and few answers, but I thought others might have interesting thoughts…
August 20, 2010 at 12:00 pm
Posted in: Civil Procedure, Constitutional Law, Family Law, Law Practice
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Clarifying Commodification
posted by Glenn Cohen
I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.
I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy. It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.
At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.
(1) Coercion:
(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent. It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern. It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns. Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted. It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly. While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.
(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market. For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.
Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population. It is only a partial solution because it usually results in shortages. One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).
(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality. Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.” Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997). More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way. For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.
As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate. For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.
August 17, 2010 at 8:53 am
Posted in: Bioethics, Culture, Family Law, Feminism and Gender, Health Law, Jurisprudence, Law and Humanities, Law and Inequality, Legal Theory, Uncategorized
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Cause and Effect in Contracting Trends
posted by Dave Hoffman
The Moscow Times reports:
“According to official state data, of the nearly 1.2 million Russian couples who registered marriages in 2009, only about 25,000 — or about 2 percent — sealed contracts stipulating the terms of a divorce.
And that’s with roughly 58 percent of the country’s marriages eventually falling apart.
In the United States, most estimates show that about 4 percent of couples now sign a prenuptial contract, although the divorce rate there is about 43 percent.”
What explains the difference? Is it:
(1) A culturally-based view of love and contract? That’s what the reporter concluded: “A prenuptial agreement treats the wife and husband as equal parties . . . is unacceptable for Russia’s traditional patriarchal view of the family . . .’Russians believe that love and a marriage contract are incompatible,’ [said Alexander Tesler, a Moscow-based psychotherapist.]”
(2) Russians’ distrust of courts and private contractual instruments, given the courts’ dubious history of nonbiased adjudication?
My money is on #2. How could we test the theory? The best approach would be to find a society with a better score on court performance than Russia’s, but which shares its “traditional patriarchal view of the family.” I’ll take nominations.
June 28, 2010 at 9:44 pm
Posted in: Contract Law & Beyond, Family Law, Feminism and Gender
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Commodifying Caring
posted by Frank Pasquale
Roger Scruton has complained that, in our society, “too many goods have a price.” He makes a Walzerian argument that certain experiences cannot be bought and sold without doing violence to their ultimate social meaning:
A century and a half ago John Muir in America and John Ruskin in England initiated the movement to save our world from spoliation. They rightly understood that nothing would be saved if we simply defend it on economic grounds. A valley might be useful as farmland, but it might be even more useful as a reservoir or an opencast mine. Only if we recognize the intrinsic value of nature will it be proof against our predations; hence we should esteem landscapes and forests for their beauty, for their sacred quality, for the part they play in defining us and ennobling our settlements, rather than for their use. Only this will keep the market at bay and prevent us from consuming our world. . . .
Love is priceless, not because its price is higher than we can pay, but because it cannot be purchased but only earned. Of course, you can purchase the simulacrum of love, and there are people who are accomplished providers. But love that is purchased is only a pretense. Goods like love, beauty, consolation, and the sacred are spiritual goods: they have a value, but no price.
Economists don’t like spiritual goods. Such goods are connected to us not as things to be used, consumed, and exchanged but as parts of what we are. To lose them is to lose ourselves.
Perhaps the ultimate revenge of the economic mindset on commitments like Scruton’s is the rise of the caring industry, which Ronald W. Dworkin incisively examines in a recent article:
June 16, 2010 at 1:37 pm
Posted in: Culture, Current Events, Family Law, Feminism and Gender, Health Law, Religion, Uncategorized
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Intensive Parenting Enforced: Parents Criminal Liability for Children Skipping School
posted by Gaia Bernstein
I have written here about the trend of intensive parenting. Parents today are more involved in their children’s lives than ever before, constantly cultivating and monitoring their children’s progress. In our article, Over-Parenting, Zvi Triger and I caution against legal enforcement of intensive parenting norms. One area in which states have been most active recently in enforcing intensive parenting norms is parental involvement in schools.
Earlier this month California’s Senate adopted a bill that authorizes prosecutors to charge a parent with a misdemeanor, punishable by up to one year in jail and a $2,000 fine, if her child skips school on a regular basis. This law enforces intensive parenting. Parents engaging in intensive parenting are extremely involved in their children’s school activities. Volunteering in school activities, whether as a class trip chaperon or in school events has become the norm among both working and non-working parents. Schools provide parents with access to the school website to monitor children’s grades, class attendance and even lunch menus. Parents regularly attend family mornings at their children’s schools and are required to participate in children’s homework preparation through questions targeted specifically at them. Given this background, the California Bill, as extreme as it may sound to some, is not surprising. This Bill merely seeks to enforce what has already become a dominant social norm of intensive parental involvement in children’s school lives.
Some may think that the California Bill is not such a bad idea. After all don’t we want to ensure that children attend school regularly and eventually graduate from high-school. However, what may be a desirable social norm is not necessarily a good legal standard. A stay-at-home mom dealing with a difficult teenager and successfully assuring that her daughter attends school on a regular basis is no doubt helping her daughter. But do we want to hold the mother who fails to do so criminally liable? Parents are differently situated in their ability to control their children. Intensive parenting is a middle class parenting norm. Lower income class parents juggling several jobs may not have the flexibility to personally supervise their children to ensure they don’t skip school. In addition, this Bill, like intensive parenting norms, is in practice, gender biased. Intensive parenting heavily burdens mothers. Should states adopt and enforce laws holding parents criminally liable for their children’s school attendance, it will most likely be the mother, who is usually seen responsible for children’s daily activities, who will end up being held criminally liable.
May 24, 2010 at 11:52 am
Tags: children, Education, Family Law
Posted in: Family Law, Feminism and Gender
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Bizarro Section 1982 and “civil union” — a thought experiment in unequal names
posted by Marc Poirier
Suppose that, immediately after the Civil War, instead of 42 U.S.C. Sec. 1862, the Congress had enacted a statute that provided: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property, except that as to non-whites some other name shall be used instead of ‘property’; and for the interests of non-whites parallel to property, names other than ‘purchase, lease, sell, hold, and convey’ shall be used.”
This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality. We might enumerate, at a minimum, the following types of injuries. (1) There would be widespread confusion, for some time, as to what the new and supposedly equal rights of non-whites were, because those rights are to be called by different names. The confusion would be increased if different states chose different new for the new institution parallel to property. (2) In order to carry out the statute’s command to use different names, everyone involved in an interaction, transaction, or event concerning property or ownership would be required to sort the participants into whites and non-whites just to talk legal talk accurately. The bizarro statute endorses and in many circumstances requires the continued practice of legally distinguishing whites and non-whites. (3) Non-whites would have to expend considerable effort teaching and explaining the new “non-property” terminology in order to claim the equal rights supposedly granted by the statute. (4) In order to comply with the law’s nomenclature distinctions, legally non-white individuals who might pass for white would be forced to identify themselves as non-white wherever their “property” rights were involved. (5) Confusion over the new, unfamiliar terminology would result in the denial of the tangible equal rights the legislature intended to grant, both because of genuine confusion, and because a feigned confusion could be used by persons seeking to avoid the statute’s command of equality as to the institution of property.
An unlikely scenario? This argument is adapted from the draft of an amicus brief on behalf of the New Jersey State Bar Association, to be filed in the Lewis v. Harris II litigation pending before the New Jersey Supreme Court. I described that litigation in a post here yesterday, and (I must disclose) I helped write this part of this amicus brief. The litigation is about a different institution, though – not property, but “marriage” and its bizarro double, “civil union”.
April 30, 2010 at 4:14 pm
Tags: civil union, discrimination, domestic partnership, marriage, property
Posted in: Civil Rights, Family Law
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