Saturday, November 14, 2009
Michelle Triola Marvin, the oft-discussed litigant in family textbooks, died last week. Her 1979 California court case resulted in the coining of the term palimony—a court-ordered award of support given to one member of a nonmarital relationship. Her obituary is here and here.
Friday, November 13, 2009
Karin Carmit Yefit has published What's the Constitution Got to Do with It? Regulating Marriage in Pakistan, 16 Duke Journal of Gender Law and Policy 347 (2009). Read the full article here. Here is an excerpt from the introduction:
Pakistan’s legal regime, particularly the status of its women, is the subject of considerable academic and media interest both domestically and internationally. The legal plight of Pakistani women is well documented, and virtually all accounts stress the brutality with which their rights are violated. They are portrayed as subject to a legal system that allows them to be veiled,secluded, silenced, harassed, mutilated, forced into prostitution, beaten, raped, murdered, and otherwise humiliated. This study, however, seeks to unravel for the first time a different and surprising picture of the marital rights of Pakistani women and the protection afforded them by the Constitution. While the legal literature is replete with discussions of both marriage law and constitutional law, the interplay between the two within the context of Islam seems to have largely escaped scholarly attention. This article seeks to fill this gap; it explores the actual and potential intersections of Pakistan’s Constitution with legal regulation of marital love, and reveals the uniqueness of this system and its striking sensitivity to women’s rights . . . Ultimately the article concludes, the exemplary Pakistani regime may potentially serve as an illuminating model for the productive and complementary utilization of Islam and constitutional jurisprudence in the regulation of a marriage law respectful of human rights.
New research suggests that women receiving a diagnosis of a life-threatening illness are six times more likely to become divorced than their male counterparts receiving the same news.
The study included diagnoses of both cancer and multiple sclerosis and found an overall divorce rate of nearly 12 percent, which is similar to that found in the normal population.
But when the researchers looked at gender differences, they found the rate was nearly 21 percent when women were the patients compared with about 3 percent when men got the life-threatening diagnosis.
Read the MSNBC report here.
The New York Times reports that Washington's Roman Catholic Archdiocese is beginning to make threats on the gay marriage issue.
The fight over a proposed same-sex marriage law here heated up this week as the Roman Catholic Archdiocese of Washington said that if the law passed, the church would cut its social service programs that help residents with adoption, homelessness and health care.
Under the bill, which has the mayor’s support and is expected to pass next month, religious organizations would not be required to perform same-sex weddings or make space available for them.
But officials from the archdiocese said they feared the law might require them to extend employee benefits to same-sex married couples. As a result, they said, the archdiocese would have to abandon its contracts with the city if the law passed.
The threat is not the first time a religion-based provider of social services has said it would stop providing services in response to a same-sex marriage law, gay rights advocates say.
In 2006, Boston’s archbishop, Sean P. O'Malley, said that Catholic Charities there would stop its adoption-related work rather than comply with a state law requiring that gay men and lesbians be allowed to adopt children.
Read the full article here.
Thursday, November 12, 2009
Just what America needs?
The city of romance got a lesson in love's hard knocks Sunday, as thousands flocked to the French capital's first divorce fair. The "New Start" trade fair aimed to tap into [a] booming market by bringing together 60 stands offering up both services obviously related to separation — law firms and counselors — and also more obscure disciplines aimed at helping people get back on their feet, like tarot card readers, makeover specialists and self-esteem coaches.
Conferences held throughout the two-day-long fair included talks entitled "Plastic surgery's role in re-conquering your image" and "How to re-seduce your partner using the Gestalt method," as well as "Meeting on the Web" and "Separation: What does a lawyer do?"
"We have long had the Marriage Fair," a massive annual trade fair in Paris catering to brides-to-be, "and I thought, 'why not a fair for people going through separations?,'" said Gaumet, adding that some 4,000 people visited the event over the weekend. "That's a real success for a first-time exhibition."
At the fair, held at a conference hall in northwestern Paris, the stands offering legal advice attracted the biggest crowds.
Read the full story here.
Technology is no stranger to alternative forms of procreation, see here and here, but now neither is it a stranger in the courtroom. Although this stranger is not tall, dark, and handsome, it is landing people in hot water nonetheless. Family lawyers are now using incriminating phone text messages as evidence of marital infidelity or bad parenting to achieve favorable settlement or court outcomes, instead of hiring private investigators or decoys. Read more here.
Wednesday, November 11, 2009
There have been a number of reports lately, from all over the globe, of children being kidnapped from their parents and sold or otherwise placed for adoption without their biological parents' consent. See, for instance, this article about Korean adoptees pressing for change in the Korean adoption system. The tone of most writings on this issue always seems to bother me, as I read into it a vilification of adoptive parents. A report in the Los Angeles Times today raises questions about which more dialogue needs to occur: What steps should prospective adoptive parents take before adopting from Korea, China, or other countries with a history of trafficking allegations? What are adoptive parents like those interviewed for LA Times story, whose adoptions are already complete, to do?
The New York Times reports that a vote on gay marriage in the New York legislature has been delayed indefinitely.
Republicans and Democrats said that as of Tuesday afternoon, the measure was still several votes short of the 32 necessary for approval. About five Democrats remained either opposed or noncommittal, meaning that Republican votes were needed to secure passage.
But not enough Republicans have committed to voting yes, legislators said. The Democrats have a 32-30 majority in the Senate.
It was unclear when the Senate would take the issue up. Wednesday is Veterans Day, a holiday, meaning that it would be at least the end of the week before the Senate could vote on the bill.
“Our community has spent the past few years making the case to 62 state senators for why we should be treated equally by the laws of our state,” said Alan Van Capelle, executive director of the Empire State Pride Agenda. “The time for making cases is over. We’ve heard dozens of excuses, and we’ve been told countless times that we’ll have to wait for equality.”
The bill’s sponsor in the Senate, Thomas K. Duane, could not say whether the bill would come to the floor.
“I am optimistic,” Senator Duane said, adding that he was continuing to discuss the matter with his colleagues. “I will keep you posted.”
Read the full story here.
Tuesday, November 10, 2009
Earlier, we noted here the financial incentives given to teenagers in North Carolina not to procreate. On the opposite end of the spectrum, the Japanese government is incentivizing women to get pregnant as the country continues experiencing low birth rates. From the Wall Street Journal:
Japan's new leaders propose offering new parents monthly payments totaling about $3,300 a year for every new child until the age of 15. Other initiatives include more state-supported day care, tuition waivers and other efforts designed to make parenthood more appealing.
Of course, as the article points out:
But experts warn money alone does not a baby make. Governments have a mixed record in pushing up birth rates, as economic inducements sometimes fail to overcome other complex societal forces that affect baby-making decisions.
In Japan, they include the traditional reliance on mothers to perform the bulk of duties in the home, including child-rearing. Demographers say Japan might have more success if they also encourage more Japanese men to come home and do the dishes.
Finally, as I argued in one of my own articles, tax laws indeed have influence on family-planning:
On the policy front, Japanese tax laws encourage single-income families with a tax deduction that keeps many mothers at home. That slows the development of family-friendly corporate policies and social acceptance of working mothers.
Bottom-line: there are many modern influences making it difficult for young people to begin families, and overcoming them requires a multi-faceted approach. It will be interesting to see which Japanese initiatives will most ease the burdens of parenthood to make it more attractive.
There is no question that financial gain can incentivize
behavior. At 5, some kids may get a
small allowance upon properly brushing their teeth. At 12, they may get a token amount upon
taking out the garbage. In
Teen pregnancies cost $9.1 billion annually, according to the National Campaign to Prevent Teen and Unplanned Pregnancy, or around $500,000 for each teen pregnancy for health care and welfare. College Bound Sisters [this program paying off teenagers] costs just $75,000 a year to operate.
It will certainly be interesting to see the outcome, although it is not the first such program. Read more about this program here.
An Ohio Court of Appeals has affirmed a district court judgment banning a mother from smoking in the presence of her ten year-old daughter.
In the Warren County case, even with no evidence that Victoria suffers specific reactions or health issues from exposure to smoke, the court ruled that a smoking ban was in the child's best interest.
To reach that conclusion, the court did something unusual. It "took judicial notice" - without anyone presenting proof in court - of an "avalanche of authoritative scientific studies" that say second-hand smoking poses risks to children.
Monday, November 9, 2009
Samuel D. Brunson (Loyola University Chicago School of Law) has posted Tax-Motivated Income-Shifting and the Kiddie Tax, Public Law & Legal Theory Research Paper No. 2009-0016, on SSRN. Here is the abstract:
1986, concerned that wealthy parents were sheltering some of their
income from taxes by giving some portion of their securities portfolios
to their children, Congress enacted the “kiddie tax,” which taxes a
child’s passive income at the child’s parents’ tax rate. By doing so,
Congress intended to reduce tax-motivated income-shifting. Since its
passage, however, there has been little serious consideration of
whether the kiddie tax successfully prevents the targeted
This Article reexamines the kiddie tax and concludes that it is both over- and underbroad. The kiddie tax subjects all of a child’s passive income, not just income resulting from tax-motivated income-shifting, to her parents’ higher tax rates. At the same time, the kiddie tax does nothing to prevent large categories of income-shifting, including the transfer of income-producing property to adults and the transfer of appreciated property to children or adults. Moreover, taxing a child’s passive income at her parents’ rate does not reflect economic reality; children and their parents do not necessarily comprise an economic unit. The distortions caused by the kiddie tax are not benign, moreover: as a result of the inefficiency of the kiddie tax, children are discouraged from saving and investing their money.
The Article concludes that the reason for the kiddie tax’s over- and underbreadth is that tax-motivated income-shifting is not primarily the result of the relationship between parents and children. Instead, it is the result of the income tax treatment of gifts. In order to more efficiently prevent tax-motivated income-shifting without discouraging children from investing and saving their money, Congress should repeal the kiddie tax and, instead, treat the giving of a gift as a taxable realization event to the donor and require a donee to include the receipt of a gift in gross income.
Elizabeth L. MacDowell (Chapman University School of Law) has posted When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism, 1 Chapman Journal of Criminal Justice__ (2010), on SSRN. Here is the abstract:
Scholarship about domestic violence-related judicial system reform tends to focus on criminal justice, leaving the civil system under-analyzed. Moreover, the pluralistic nature of the justice system - which consists of both criminal and civil justice - is often ignored. This article explores claims for specialized domestic violence courts that integrate civil and criminal cases into a single court and argues that the value of court pluralism is overlooked. Part I of this article introduces the problem of integrated courts in a pluralistic court system. Part II examines the normative function of criminal courts in relation to domestic violence cases and contrasts the remedies available to victims in criminal and civil courts. Part III critiques the rationale for integrated domestic violence courts from the standpoint of litigation strategy and other avenues for system reform. This Part also examines the ways in which integrated courts compromise the autonomy-enhancing functions of civil courts. Part IV shows that despite the advantages of civil courts for victims, the characterization of civil justice as relatively unproblematic is inaccurate, and revisits the normative role of the criminal courts. This Part concludes that given the risks and lack of benefits to victims of integrating criminal and civil court functions, this reform strategy should be reconsidered in light of its impact on court pluralism.
States across the country are reporting substantially increased child support litigation. Cash-strapped obligors are seeking reductions in child support awards for employment difficulities and child support arrearages are increasing rapidly. The negative impact on children supported by those awards is obvious. But even courts are feeling the pain of the flood of this litigation. Many of the obligors seeking relief cannot afford legal representation and courts are struggling to find creative solutions to managing the burden of the volume of child support modification suits. Read more about the problem here and here.
Sedillo Lopez: "A Medical/Legal Teaching and Assessment Collaboration on Domestic Violence: Assessment Using Standardized Patients/Standardized Clients"
Antoinette Sedillo Lopez (University of New Mexico School of Law) has posted A Medical/Legal Teaching and Assessment Collaboration on Domestic Violence: Assessment Using Standardized Patients/Standardized Clients, 14 International Journal of Clinical Legal Education 61 (2009), on SSRN. Here is the abstract:
article describes a collaboration between a law professor, emergency
medicine professors from the medical school, formative assessment
specialists, standardized patient training specialists, a community
attorney who specializes in domestic violence, and a teaching assistant
from the law school.
The group collaborated in developing scripts and scenarios for standardized patients and standardized clients who experienced the medical and legal problems related to domestic violence. They developed assessment criteria and used the standardized patients and clients as part of a Family Law class and the training for emergency room residents. This type of training and assessment is common in medical school training but unique in legal education.