Thursday, January 28, 2010
Shmueli: "What have Calabresi and Melamed got to do with Family Affairs? Women Using Tort Law in Order to Defeat Jewish and Shari’A Law"
Benjamin Shmueli has posted What have Calabresi and Melamed got to do with Family Affairs? Women Using Tort Law in Order to Defeat Jewish and Shari’A Law, Berkeley Journal of Gender, Law & Justice (forthcoming 2009), on SSRN. Here is the abstract:
Intrafamilial tort actions have become increasingly common. Children sue parents, and spouses sue each other or their ex-spouses. These actions create a fascinating intersection between tort law, which generally deals with relationships between strangers, and family law, which generally concerns the regulation of relationships between intimates. This is especially interesting when these situations create a clash between secular tort law and religious Jewish and Shari’a law. This Article charts new territory by exploring the legal, social, and law and economics implications of these emerging legal actions at the intersection of tort law and family relations.
I use the now-famous Calabresi and Melamed framework (Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972)) of primary and secondary remedies drawn from different entitlement regimes in order to provide a theoretical foundation to explore the emerging use of tort law to provide remedies for family disputes. I focus in particular on categories of disputes in which family law either refuses or is unable to provide adequate remedies for harms caused by one family member against another. The Calabresi and Melamed framework will help illustrate five circles of civil-tort actions in the service of the family unit, in some of them there is a real clash between secular tort law and religious Jewish or Shari’a law. But beyond just presenting the issues, this framework will have great importance in providing a theoretical-tort basis for understanding new and future developments in case in which there are real conflicts between tort law and family law.
Ultimately, this Article asks, among other questions: Can women indeed defeat religious Jewish and Shari’a law, using secular tort law? What are the characteristics of the relationships between intrafamilial tort litigation and religious Jewish and Shari’a law? Are rights connected to personal status tradable, i.e. can they be transferred or sold? Can the family court fill an active and legitimate role in creating deals on behalf of the state, under which a family member is recognized as having injured the rights of another family member on the plane of personal status? Should the state allow for the damaged personal status right to be priced, e.g., by setting a price tag on the infringement by using tort law?
Benjamin Shmueli has also recently posted many other articles, as well, available here once you enter author's name into the search field.