Archive for the ‘Family Law’ Category
posted by Mary Anne Franks
First, I want to thank my hosts here at Concurring Opinions for asking me to stay on for another month. One of the things this extended invitation allows me to do is to respond at some length to issues raised in the comments on my last post, “The Dangerous Fragility of Men.” In that post, I highlighted a troubling phenomenon: men with privilege and power characterizing their insecurities and lack of self-control as vulnerability, and using that alleged vulnerability as an excuse or justification for murder, rape, and discrimination (and I would add, though I didn’t discuss it in the post, harassment and intimidation). To demonstrate this phenomenon, I offered a sample of quotations from recent, high-profile cases including Oscar Pistorius‘ shooting of his girlfriend and the gang rape of an 11-year-old girl in Texas. The post suggested that our society should make a greater effort both to marginalize this cowardice and become more attentive to actual vulnerability. In this post, I’d like to elaborate on these ideas and address some of the objections raised in the responses to my post.
I first want to spend a bit more time on the question of perceived v. actual vulnerability. I noted in my original post that one of the perplexing aspects of this form of male vulnerability is that it seems to increase, rather than decrease, with power or privilege. Frequently, the men using weakness as an excuse or justification (or others offering such explanations on their behalf) for harm are people who are objectively less vulnerable than most. They include famous athletes, soldiers, and wealthy businessmen. I think it is worth spelling this out more explicitly: there is a tendency on the part of privileged individuals to overstate their vulnerability. This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination. Feeling vulnerable is not the same thing as being vulnerable, and even actual vulnerability might need to yield before (or at least take into consideration) the greater vulnerability of other people.
We are all vulnerable in certain ways. Figuring out the what and why of our vulnerabilities is an important part of psychological awareness and well-being. What is of most interest to me here, however, is determining the conditions under which it is permissible for us to impose our vulnerabilities on other people, especially when that imposition takes the form of violence or discrimination. In determining those conditions, I would suggest we should ask ourselves at least three questions. One, we should question whether our vulnerability is objectively reasonable. Vulnerability that results from personal insecurity or prejudice is not vulnerability that we may rightfully impose on others. It is our own responsibility to correct vulnerabilities of our own creation. Second, we should question the magnitude of our vulnerability, especially when put in perspective with the vulnerabilities of others. Third, even if our vulnerability is both reasonable and of serious magnitude, we should question whether we are imposing it on appropriate parties in a just and proportional way. Read the rest of this post »
posted by Vivian Hamilton
My last series of posts argued that states should lower the voting age, since by mid-adolescence, teens have the cognitive-processing and reasoning capacities required for voting competence. But that is not to say that teens have attained adult-like capacities across all domains. To the contrary, context matters. And one context in which teens lack competence is marriage.
Through a single statutory adjustment — raising to 21 the age at which individuals may marry — legislators could reduce the percentage of marriages ending in divorce, improve women’s mental and physical health, and elevate women’s and children’s socioeconomic status.
More than 1 in 10 U.S. women surveyed between 2001 and 2002 had married before age 18, with 9.4 million having married at age 16 or younger. In 2010, some 520,000 U.S. teens were married, divorced, or widowed. In an article published last month, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage, I describe more fully the social costs of early marriage and argue for an end to the practice.
The High Costs of Early Marriage
For decades, age at marriage has been the most consistent and unequivocal predictor of marital failure. Of marriages entered at age 25 or later, fewer than 30% end in divorce. Of marriages entered before age 18, on the other hand, nearly 70% end in divorce. The earliest marriers, those adolescents who enter marriage in their mid-teens, experience marital failure rates closer to a sobering 80%. Not until age 22 does marital stability improve significantly and do marriage dissolution rates begin to level off.
The costs of child marriages (entered before age 18) and early marriages more generally (entered at age 21 or younger) extend beyond their dissolution. Early marriers are more likely than those who delay or avoid marriage to discontinue their formal educations prematurely, earn low wages, and live in poverty. Women who marry early develop more mental and physical health problems than those who marry later. And following divorce, mothers (and their children) tend to suffer greater economic deprivation and instability than do their never-married counterparts. (See here, pp. 1799-1806)
Neither attaining age 18 (the near-universal age of presumptive marital capacity) nor obtaining the consent of parents and/or judges (generally required for those individuals seeking to marry before age 18) has an observable effect on marital stability. Only delay and factors integrally associated with it — such as more years of education — reliably increase marital stability.
Causes of Early Marriage Instability
Why are marriages entered at earlier ages so unstable? And what can be done about it? The answer to the first question is complicated; the answer to the second question is not.
posted by Gaia Bernstein
Egg and sperm donations are an integral part of the infertility industry. The donors are usually young men and women who donate relying on the promise of anonymity. This is the norm in the United States. But, internationally things are changing. A growing number of countries have prohibited egg and sperm donor anonymity. This usually means that when the child who was conceived by egg or sperm donation reaches the age of eighteen he can receive the identifying information of the donor and meet his genetic parent.
An expanding movement of commentators is advocating a shift in the United States to an open identity model, which will prohibit anonymity. In fact, last year, Washington state adopted the first modified open identity statute in the United States. Faced by calls for the removal of anonymity, an obvious cause for concern is how would prohibitions on anonymity affect people’s willingness to donate egg and sperm. Supporters of prohibitions on anonymity argue that they only cause short-term shortages in egg and sperm supplies. However, in a study I published in 2010, I showed that unfortunately that does not seem to be the case. My study examined three jurisdictions, which prohibited donor gamete anonymity: Sweden, Victoria (an Australian state) and the United Kingdom. It showed that all these jurisdictions share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.
In a new article, titled “Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogacy,” I examine the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy. Surrogacy has not been part of the international debate on donor gamete anonymity. But the situation in the United States is different. Unlike most foreign jurisdictions that adopted prohibitions on anonymity, the practice of surrogacy in the United States is particularly reliant on donor eggs because of the unique legal regime governing surrogacy here. Generally, there are two types of surrogacy arrangements: traditional surrogacy and gestational surrogacy. In a traditional surrogacy arrangement the surrogate’s eggs are used and she is the genetic mother of the child, while in gestational surrogacy the intended mother’s eggs or a donor’s eggs are used and the surrogate is not the genetic mother of the conceived child. Most U.S. states that expressly allow surrogacy provide legal certainty only to gestational surrogacy, which relies heavily on donor eggs, while leaving traditional surrogacy in a legal limbo. Without legal certainty, the intended parents may not be the legal parents of the conceived child, and instead the surrogate and even her husband may become the legal parents. Infertility practitioners endorse the legal preference for gestational surrogacy also for psychological reasons, believing that a surrogate who is not genetically related to the baby is less likely to change her mind and refuse to hand over the baby.
The adoption of prohibitions on anonymity in the United States could destabilize the practice of surrogacy in a way that did not occur in other countries that adopted these prohibitions. If, as has happened elsewhere, prohibitions on anonymity will play a role in creating shortages in donor egg supplies in the United States, this could affect the practice of surrogacy in two ways. Individuals seeking surrogacy may need to resort to traditional surrogacy, which does not rely on donor eggs, with the accompanying legal uncertainty. Alternatively, those deterred by the uncertainty enveloping traditional surrogacy may refrain from seeking surrogacy altogether, resulting in a significant contraction of the practice of surrogacy in the United States. These potential complications suggest that those supporting the adoption of prohibitions on anonymity in the United States, should consider these changes with great caution and think beyond the traditional debate about the privacy of the donors, the privacy and procreational interests of the intended parents, the best interests of the children and the direct effect on gamete supplies.
December 21, 2012 at 10:42 am Tags: egg donor anonymity, Family Law, Health Law, infertility, reproductive technologies, sperm donor anonymity, surrogacy Posted in: Family Law, Health Law, Privacy, Privacy (Medical), Technology, Uncategorized Print This Post No Comments
posted by Gaia Bernstein
An unfortunate event took place this week. A six year old boy’s foot was run over by a school bus. As a result, the boy’s mother who sent the boy and his somewhat older brother unsupervised to the bus station was arrested and charged with child abuse and neglect. It turns out that in 2012, sending a six year old and his older brother to await the school bus by themselves is an unacceptable parenting standard warranting parental arrest.
This made me think back to the 1970s, when I grew up in Israel, and from the age of six walked by myself to the bus station and took the public bus – not even a school bus — to school. Luckily, my foot was not run over by a bus. But even if it had I doubt my parents would have been arrested or even blamed for inappropriate parenting. All my classmates either walked by themselves up to twenty minutes to school or if they lived further away, as I did, took the public bus.
There is no doubt parenting norms have changed since I was a child. Many now recognize that parenting has become more intensive, involved and monitoring. In an article titled Over-Parenting, my co-author Zvi Triger and I worried about the impact of these changes on legal standards. We recognized that while intensive parenting carries some advantages and may be a suitable parenting practice for some, embedding it in legal standards would impose it on those culturally unwilling or financially unable to endorse it. We recognized that intensive parenting is mainly an upper-middle class practice that for others could become over-parenting.
Is it a good parenting norm to accompany young children to the bus stop? probably yes. But aren’t the real questions: Is the specific child mature enough to be safely standing at a bus stop ? Is the neighborhood a relatively safe neighborhood traffic and crime-wise? And also, can parents afford to wait with their child in the morning or do they have no choice but to rush off to work for an early morning shift in order to support their families? These are questions to be answered by parents not by the law.
posted by Gaia Bernstein
Egg freezing has become the new hot trend in the infertility industry. Although infertility practitioners first used egg freezing in the mid 1980s, it was only recently that success rates have significantly risen making this an attractive option for women. A woman can now freeze her eggs at any age and use it a few years later or much later with the sperm of her then chosen partner or a donor to have a baby through IVF. Using egg freezing technology, a woman can today have a baby at a time that best suits her career and family situation.
There is no doubt that egg freezing as a viable option is a huge revolution for women’s autonomy. But the big question is why only now? Why has egg freezing become a really viable option only during the first decade of the Twenty-First Century. We have known how to freeze sperm since the 1950s. And, embryo freezing was first tried out around the same time as egg freezing, during the mid-1980s. Yet, unlike egg freezing, embryo freezing became common practice soon thereafter. So why did we have to wait so long for effective egg freezing technology?
The answer usually given to this question is that it was just too complicated technologically and took a long time to develop. But were technological complications the only cause for delay? Is it really much harder to freeze and thaw eggs for later IVF use than to freeze and thaw embryos for later use? We tend to be taken by the illusion that science is value neutral — that scientific progress is not affected by choices directed by social values. But even if technological diffiuclties played a role in the delay, could egg freezing technology have been held back because resources were invested elsewhere? Unlike other forms of reproductive technology that promote the reproductive interests of both men and women, egg freezing promotes mainly the autonomy interests of women. Egg freezing’s impact on women autonomy can be compared only to the revolutionary effect of the birth control pill. At the same time, the infertility industry is comprised overwhelmingly by male practitioners. And while some have no doubt worked relentlessly to promote egg freezing technology, it may be time to stop assuming that technological complications held back this important women emancipating technology. It may be time to begin asking whether the advancement of egg freezing was placed on the back burner for years because of the type of interests it promotes?
December 7, 2012 at 10:26 am Tags: egg freezing, infertility, IVF, oocyte cryopreservation, reproductive technology, women autonomy Posted in: Family Law, Feminism and Gender, Health Law, Technology Print This Post 6 Comments
posted by Jill Hasday
Thank you for the opportunity to participate in this symposium on Robin’s fascinating new book, Normative Jurisprudence. The implications of Robin’s arguments reach across the law school curriculum and beyond. For purposes of this post, I would like to draw some connections between Robin’s work and family law. Normative Jurisprudence can help us better understand how the law regulates the parent-child relationship.
First, Robin argues that the state frequently provides rights in ways that entrench existing power hierarchies, even as rights discourse purports to be liberating for all. Consider parental rights from this perspective. Many courts celebrate the rights they give to parents in sweeping terms, but Robin’s work can help us see how the specific rights that parents receive are often designed with privileged rather than poor families in mind. For instance, the Supreme Court famously declared in Pierce v. Society of Sisters (1925) that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” This declaration appeared in a decision holding that parents have a constitutional right to send their children to private schools. In theory, that right extends to poor parents as much as wealthy ones. In reality, poor parents have little means of affording private education.
Second, Robin argues that legal discourse prioritizing rights can actually obscure questions related to welfare. Examining the parent-child relationship through this frame is also illuminating. Poor parents may have a formal right to send their children to private school, but focusing on this right can obscure a more pressing issue that poor parents confront—the inadequacy of many public schools. Similarly, poor parents have constitutionalized procedural protections before the state takes custody of their children, but the provision of these rights can obscure how poor parents have no right to access the safe housing, adequate food, and other resources that children need to thrive. Indeed, the welfare system that exists for poor parents and children increasingly disavows the idea that the poor might have an entitlement to the basic means of subsistence. Instead, welfare programs provide meager benefits at the discretion of legislatures and routinely subject poor parents who receive these benefits to investigatory, instrumental, and interventionist state regulation.
Robin also notes how the law often treats the fact that people have consented to a legal regime as a reason to shield that regime from further critical scrutiny. The legal regulation of poor families starkly illustrates the limits of relying on consent. In theory, poor parents “agree” to the harsh and rights-denying terms of welfare programs as a condition of receiving aid, but in practice impoverished parents have few alternatives but to consent. Consider family cap laws in the Temporary Assistance for Needy Families (TANF) program, a leading federal-state welfare program.
Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence. A family that enters TANF with three people is still limited to just $424 a month if another child is born, $64 less than New Jersey otherwise thinks necessary for four people’s subsidence.
Family cap laws help illustrate how rights to freedom from state intervention do not help parents secure the necessary resources to raise their children. The benefits the TANF program offers are extraordinarily low and even lower if poor parents act in ways the state disfavors by having additional children. Poor parents have rights, but not to welfare. And when impoverished parents seek welfare, states feel free to impose extraordinary pressure on parents’ most personal decisions. In practice, rights talk often provides little protection for the most vulnerable.
posted by Jake Linford
As I read “Facing Limits,” Larry’s chapter on unenforceable bargains, I had to pause and smile at the following line:
People often think that fairness is a court’s chief concern, but that is not always true in contract cases (p. 57).
I still remember the first time someone used the word “fair” in Douglas Baird’s Contracts class. “Wait, wait,” he cried, with an impish grin. “This is Contracts! We can’t use ‘the f-word’ in here!”1 Of course, Larry also correctly recognizes the flip side of the coin. If courts are not adjudicating contracts disputes based on what is “fair,” we might think that “all contracts are enforced as made,” but as Larry points out, “that is not quite right, either” (p. 57).
Pedagogically, Contracts in the Real World is effective due to its pairings of contrasting casebook classics, juxtaposed against relevant modern disputes. In nearly every instance, Larry does an excellent job of matching pairs of cases that present both sides of the argument. I don’t mean to damn with faint praise, because I love the project overall, but I feel like Larry may have missed the boat with one pairing of cases. Read the rest of this post »
October 18, 2012 at 12:45 pm Tags: adoption, autonomy, Baby M, contract law, ContractProf Blog, Contracts in the Real World, fairness, PrawfsBlawg, surrogacy Posted in: Book Reviews, Contract Law & Beyond, Family Law, Symposium (Contracts Real World) Print This Post One Comment
posted by Gerard Magliocca
I thought I’d post on a different topic from what I normally write about. Here is the question–Should we encourage pregnant women who do not want their child to bring the baby to term and give him or her up for adoption? If so, how?
Let’s say that you want to implement President Clinton’s abortion standard (“Safe, legal, and rare.”) How do you make the “rare” part happen without imposing an undue burden on a woman’s right to choose? One option, of course, involves improvements in birth control (whether you want to call that abstinence, contraception, or whatnot) to minimize unwanted pregnancies. Another is to convince those who have an unwanted pregnancy to have the child and raise it (though persuasion rather than coercion). A third option, exemplified by Steve Jobs among others, would be to encourage women to carry the child to term and then give the baby up for adoption.
It strikes me that this last option gets far less attention than it should. If you are pro-life, you would presumably prefer the possibility of adoption over abortion. If you are pro-choice, you would presumably prefer the choose for adoption over a mandate. Thus, one might expect to see policies that would offer incentives to women who elect to give up a child for adoption. For example, the state could bear the costs of the pregnancy (medical expenses, lost wages, etc.). Or the state could pay women a lump-sum “reward” for bearing the burden of pregnancy when they will not raise the child. We don’t, though, see such policies. Why not?
One possibility is that we’d be concerned that not enough adoptions would happen. In effect, would policies such as I’ve described lead to giant “Oliver Twist” style orphanages? Another thought is that these policies would simply cost too much money. Or perhaps people feel like this would be a kind of welfare that rewards irresponsible behavior? I’m genuinely unsure.
posted by University of Illinois Law Review
Please see our website for past issues
Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)
David C. Baum Memorial Lecture on Civil Rights and Civil Liberties
Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)
Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)
March 26, 2012 at 4:37 pm Posted in: Civil Rights, Constitutional Law, Family Law, First Amendment, International & Comparative Law, Law Rev (Illinois), Supreme Court, Uncategorized Print This Post No Comments
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.
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 »
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 »
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.
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.
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.
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 »
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.
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.
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.
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 Print This Post 2 Comments