November 7, 2009
Balding: "On Sex Selective Abortion"
Abortion is a sensitive issue around the world. Acting as a clear dividing line in American politics, countries around the world treat abortion policy with a range of approaches. From near complete prohibition to encouraging its use as a tool of population control, countries utilize a variety of approaches to abortion policy. An abortion and technological issue of ethical concern is the practice of parental sex selection of the fetus. Ignoring basic questions of incentives for agents has overlooked key factors of the factors driving sex selective abortion. The economic incentives and clear decision making principles behind sex selective abortion, access to family planning, and reproductive services has not been widely studied. In this paper, I provide a theoretical economic defense to the practice of sex selective abortion given the existing ethical framework. Rather than proceeding from a moral position, this paper will defend the practice of sex selective abortion using the accepted ethical precepts of society and the economics of family planning.
Analysis of the practice of sex selective abortions fails to account for value discrimination of human life and choice fungibility. I find that opposition to sex selective abortion establishes significant inequalities based upon inconsistent standards between individual agents, fetuses, technological standards, and income levels. This has four primary implications. First, agents in societies which engage in sex selective do so out of economic incentives not gender preference. Second, in developed economies which do not face the economic constraints of parents in lesser developed countries, parents have distinct non‐distortionary aggregative gender preferences. Third, the ethical dilemma of gender preferences of potential parents in developed countries concerns the methods by which they seek to obtain their preferred gender or other characteristics. Fourth, at its core, ethical arguments against the practice of sex selection abortion are not arguing against sex selection, abortion, or sex selective abortion. Critics of sex selective abortion are arguing against societal gender imbalance.
November 6, 2009
Williams: "Sticky Expectations: Responses to Persistent Over-Optimism in Marriage, Employment Contracts, and Credit Card Use"
Sean Williams (University of Texas School of Law) has posted Sticky Expectations: Responses to Persistent Over-Optimism in Marriage, Employment Contracts, and Credit Card Use, 84 Notre Dame L. Rev. 733 (2009), on SSRN. Here is the abstract:
people underestimate the likelihood that they will experience negative
events and overestimate the likelihood that the law will protect them
if those events occur. Many of these mispredictions are highly
resistant to change even in the face of accurate and available
information. This Article illustrates the consequences of these
“sticky” expectations using examples from marriage, employment, and
credit card regulation. In each of these areas, erroneous expectations
create costs. The largest and most common cost is the failure to
adequately self-insure against future negative events like divorce, job
loss, or high debt. But proposals for correcting irrational
expectations can be costly, in part because unrealistic optimism can
also create benefits. This Article develops a Calabresian cost-benefit
framework to help us to assess those costs and benefits sensibly,
arguing that policy makers should seek to minimize the sum of the cost
of disparities between expectations and reality and the cost of
reducing those disparities. This approach can help to determine whether
it is worth implementing legal reform to close the gap between
expectations and reality, and if so, whether to do so by attempting to
change the expectations or by changing the law to correspond to
existing expectations. This framework provides reasons to rethink
existing proposals aimed at informing or debiasing people through law.
November is National Adoption Awareness Month
November 5, 2009
New Statistics on Teen Parents
Contrary to popular belief,
A new look at the characteristics of teen parents finds that most aren't from single-parent households nor are they from households in poverty, according to a data analysis released Tuesday.
The study by the nonprofit Child Trends for the National Campaign to Prevent Teen and Unplanned Pregnancy, shows that of teens who report having a baby or fathering a child:
•39% lived with both biological parents; 19% reported living with one biological and one step-parent.
•28% lived in families with incomes below the federal poverty line.
Those who have had a teen birth are disproportionately more likely to be from single-parent families compared to teens overall, but the study finds more than half of teen parents were themselves from two-parent families.
Litigation Funds Fueling Divorce Litigation in Australia
During a divorce in the
November 4, 2009
Merrily We Roll Along
While not strictly related to family law (although arguably so by virtue of illustrating life without familial and friend support), opening night was very enjoyable at the Georgetown Gilbert & Sullivan Society’s production of Stephen Sondheim’s Merrily We Roll Along at Georgetown Law Center—playing through Saturday night. Tickets are $12; see here for details.
Proposed Changes to Alimony Legislation
The Wall Street Journal reports on political pressure building in some states to limit alimony in various ways, all getting at the core debate over the purpose of long-term alimony these days. The report mentions legislation being introduced in Massachusetts, Ohio, Florida and Pennsylvania. Read the full article here.
For a taste of the proposed changes, check out HB 1785, currently pending in the Massachusetts legislature.
The goal [of the bill is that] "any party needing alimony shall be self-supporting within a reasonable period of time."
It defines that period by capping alimony awards at half the duration of a marriage, with a maximum of 12 years unless the supported spouse still has custody of a child or children under 16 years old.
The House bill also would require alimony payments after five years to drop 10 percent annually, with the same caveat on custody of minors or if a recipient is unable to be gainfully employed.
Paying alimony would end upon retirement age. Increases in payments would be tied to the Consumer Price Index. The ability to pay would be determined by recent income, not including the resources of new significant others.
Finally, the bill says many alimony orders that do not comply with the new rules should be amended in court.
Read news coverage of the MA bill here.
AC and TO
Alstott: "Private Tragedies? Family Law as Social Insurance"
Harvard Law School)Private Tragedies? Family Law as Social Insurance, Harvard Public Law Working Paper No. 09-64, on SSRN. Here is the abstract:
Family law is full of private tragedy. Case after case pits one family
member against another in a zero-sum struggle for resources. Spouses
battle over limited assets; parents clash over child support; and
children fight each other for resources when parental income is
stretched across multiple families.
But family law doesn’t simply pick up the pieces when individuals make bad choices or suffer bad luck. Instead, the law creates distributive rules that help determine which choices are bad ones - and whose bad luck carries ruinous consequences. Taking this view, it is not just the dysfunctional who live in law’s domain: successful families flourish amidst legal rules that protect some from life’s risks while leaving others vulnerable.
In this essay, I suggest that family law constitutes a form of social insurance, supplementing public programs that address life risks including poverty, unemployment, and disability. Both family law and social insurance recognize some relationships (and not others) and protect against some risks (and not others). Further, both systems of law can be understood as distributing risks ex ante - rather than simply addressing failure ex post.
To make the discussion concrete, I focus on two cases, one involving spousal support and disability, and the other involving child support for multiple families. The cases illustrate the interdependence of financial entitlements in family law and in social welfare and demonstrate that a range of changes in family law, social insurance rules, or other elements of law could alter the distribution of life’s risks - and thus the likelihood and consequences of apparently “private” tragedies.
The essay also builds on these examples to outline a larger project. Today, large-scale social insurance programs shield individuals against disruptions in working life, including retirement, disability, and unemployment. And yet disruptions in affective life - a divorce, a breakup, a parent’s exit, even living without a family - can impose equally severe shocks on individual lives. While at first it may seem uncomfortable to consider personal relationships a matter for state concern, I suggest that the normative theories and analytical tools used in structuring conventional social insurance can also be brought to bear in considering the possibility of insurance for disruptions in affective life.
November 3, 2009
Campbell: "Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study"
Angela Campbell (McGill University) has posted Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study, Windsor Review of Legal and Social Issues (forthcoming), on SSRN. Here is the abstract:
In all decisions that affect children, courts in Quebec, as in many other jurisdictions, are instructed to give preeminent weight to the “best interests of the child.” Courts have applied and discussed this standard most frequently in cases where child custody and access matters must be settled as corollary issues to a couple’s divorce or separation. While these cases have generated extensive discussion about how parents’ conduct and characteristics should be factored into the best interests inquiry, little attention has been given to questions about how parental substance dependence should affect custody and access outcomes. The lack of discussion on this issue is conspicuous, given the relative frequency with which custody issues involving addicted parents arise before Quebec courts.
This paper seeks to make a contribution to filling this gap in the family law scholarship within Quebec civil law. It examines how courts in Quebec factor a parent’s alcohol or drug misuse into the best interests analysis when called upon to settle custody or access matters, and questions whether greater openness should be shown to custody and access claims advanced by addicted parents. To this end, the paper begins by contrasting the way that the medical community understands and evaluates addiction with the approach to this issue undertaken by family law courts. Juridical - specifically, judicial - perceptions of addiction are then explored through an analysis of Quebec family law cases that have considered this issue in the context of custody and access claims. The judicial analysis and discourse emerging in these cases reveals an appreciation of substance dependency differs considerably from that presented in the medical literature. Last, this paper questions whether legal outcomes might benefit by relying more fully on medical interpretations of addiction. It considers whether it is possible to recognize addiction’s physiological aspects in deciding custody and access claims, in particular, by acknowledging the necessity of rehabilitative treatment for this condition. Accordingly, it explores the relevance, and practical and moral implications, of treatment orders for parents coping with addiction who seek custody or contact with their children. This analysis ultimately concludes that such orders are feasible, yet would only be appropriate once a court has sufficient awareness of the accessibility of appropriate treatment resources in each case and for the particular parties concerns.
Conference on families, fundamentalism, & the First Amendment in November at William & Mary Law School
(Williamsburg, VA) - The Institute of Bill of Rights Law at William & Mary Law School will bring together scholars with expertise in the First Amendment; family and juvenile law; and law, religion, and culture at a conference, Nov. 6 from 9:00 a.m. to 3:15 p.m. in room 124, William & Mary Law School. Registration is free and all are welcome.
The symposium will explore ways in which fundamentalism forces an examination of some of the American polity’s core values: commitments to pluralism, religious liberty, and individual self-determination; repudiation of gender-based oppression; and ensuring the well-being of children and future citizens.
Participants will include William & Mary Law faculty, James Dwyer and William Van Alstyne in addition to Randall Balmer (Barnard/Columbia); Emily Buss (University of Chicago); Naomi Cahn (George Washington); June Carbone (University of Missouri-Kansas City); Fred Gedicks (Brigham Young); Marci Hamilton (Cardozo); Vivian Hamilton (William & Mary); Andrew Koppelman (Northwestern); Catherine Ross (George Washington); John Taylor (West Virginia); and Robin Fretwell Wilson (Washington & Lee).
Papers from the symposium will be published in the William & Mary Bill of Rights Journal.
For more information, please contact Melody Nichols at IBRL@wm.edu.
November 2, 2009
The best laid plans of mice and men...
A New York church made famous by Irving's headless horseman tales recently refused to perform a couple's desired Halloween wedding ceremony, which included a black dress costume for the bride and theme music from "The Addams Family" and "The Munsters." The traditional church wedding ceremony has clearly begun to tire some couples, who want to be more creative and fun. However, perhaps these couples push the envelope in planning their dream weddings? For coverage of the smashed Halloween wedding plans, see here and here, and see here for interesting blog commentary. Of course, such energy and creativity might be more useful in maintaining a marriage, especially when the divorce rate flirts with the 50% mark.
Adoption Agency Director Guilty of Grand Theft
The former director of a Florida adoption agency pleaded guilty to first degree grand theft for bilking prospective adoptive parents out of more than $178,000.
According to the investigation conducted by the Florida Department of Law Enforcement, [Debra] West and her agency [Adoptions by Choice] collected birth mother expenses from adoptive couples under the guise that the money would be extended to the birth mother, but would extend little or none of it to the birth mother. West and her agency would then submit fraudulent affidavits to the court, claiming to have spent all the couple’s money faithfully.
Many of the fraudulent affidavits claimed thousands of dollars were spent on hospital-related expenses associated with the birth mother’s pregnancy when in reality, the birth mothers were covered by Medicaid or private insurance. In some cases, where money was actually extended to the birth mother on the adoptive couple’s behalf, West would submit proof of the payments to a charitable organization known to reimburse adoption agencies for birth mother expenses. In most cases, West, through her agency, ended up pocketing the vast majority of the money and creating false documents in order to conceal the embezzlement.
Read the full story here.
Lost Embryos in Lousiana
In continuing news of fertility clinic disasters, NPR reports that litigation proceeds in New Orleans against a fertility clinic that lost dozens’ of couples embryos due to mislabeling. It is not clear what exactly happened to the embryos—some affected couples fear they may have been implanted in other women. DNA testing of the clinic’s embryo holdings is being employed in the hope of locating the embryos. In the meantime, the fertility clinic has been indefinitely shut down and an audit is being conducted.
November 1, 2009
Kindregan: "Considering Mom: Maternity and the Model Act Governing Assisted Reproductive Technology "
Suffolk University Law School) has posted Considering Mom: Maternity and the Model Act Governing Assisted Reproductive Technology, 17 Am. U. J. Gender Soc. Pol'y & L. 601 (2009), on SSRN. Here is the abstract:
The traditional family law doctrine governing maternity was easy to apply. Simply stated the rule for centuries was "the birth mother is the legal mother." However, this rule can no longer operate in the growing field of assisted reproductive technology and especially in collaborative reproduction. Today the birth mother is often a surrogate carrier, who may have a genetic connection to the child she births. However, in most cases the surrogate carrier has no genetic connection to the child. In contrast to the birth mother, the intended mother may be designated as both the legal mother under a contract and actually be the genetic mother. In other cases the intended mother provides an embryo to the surrogate carrier which was produced by a donated egg so that even though she intends to be the legal mother she has no genetic connection to the child. While a heterosexual intended mother may resort to surrogacy to overcome an infertility problem, or because of a history of miscarriage or simply to avoid pregnancy, the growing use of assisted reproduction by same-sex couples raises a number of legal parentage problems which are now coming before the courts. Parentage affects custodial and visitation rights and the law of inheritance. There is little statutory law to assist the courts in such cases. The author examines these problems in the light of the newly proposed A.B.A. Model Act Governing Assisted Reproductive Technology, and also considers the proposed uniform laws governing parentage and probate.