Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, March 20, 2010

Sleep as the Next Feminist Issue?

Women who enjoy catching a couple of extra zzzzzz’s will be happy to learn that they may be advancing women’s causes by doing so, as sleep has been classified as the next feminist issue.  According to TimesOnline:

Just as Virginia Woolf noted in A Room of One’s Own that one can’t “think well, write well, love well” if one has not “dined well”, so it would seem that women in particular can’t function well if they haven’t slept well. Two of America's leading feminist super-achievers are on a crusade to get us all to have a lie in, or at least to take a nap.

Arianna Huffington, the powerhouse publisher of The Huffington Post, and Cindi Leive, the equally indomitable publisher of Glamour, have joined forces to identify women’s sleep deprivation as “the next feminist issue”. They cite studies that indicate that women are more sleep-deprived than men, including one that says American women are getting 90 minutes less than the seven to eight hours recommended for someone to be well and perform well.

Read the rest here, and further commentary here and here.


March 20, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, March 19, 2010

Cahn and Carbone on "Red Families" and "Blue Families"

Naomi Cahn (George Washington University Law School) and June Carbone (UMKC School of Law) recently had a piece appear in the Christian Science Monitor in which they discuss research on the relation between divorce and teen pregnancy rates and residence in a conservative or liberal state, and make suggestions for reform.

Ask most people about the differences between families who live in “red” (conservative) states and “blue” (liberal) states, and you’ll hear a common refrain: Massachusetts and California are hotbeds of divorce and teen pregnancy, while Nebraska and Texas are havens of virtue and stability.

The reality is quite different. And the evidence should force all of us – conservative and liberal alike – to think carefully about the policies we set to help American families thrive in the 21st century.

According to a new federal study, women with a college education are much more likely to be married than are women who have never graduated from high school. And men and women who married after the age of 25 have lower divorce rates than couples who were married at younger ages.

We could have predicted these results. The US family system, which once differed little by class or region, has become a marker of race, culture, and religion. A new “blue” family paradigm has handsomely rewarded those who invest in women’s as well as men’s education and defer childbearing until the couple is better established. These families, concentrated in urban areas and the coasts, have seen their divorce rates fall back to the level of the 1960s, incomes rise, and nonmarital births remain rare. With later marriage has also come greater stability and less divorce.

Difficulties in the “red” world, meanwhile, have grown worse. Traditionalists continue to advocate abstinence until marriage and bans on abortion. They’ve said an emphatic “no” to the practices that have made the new “blue” system workable.

Yet, paradoxically, as sociologist Brad Wilcox reports, evangelical Protestant teens have sex at slightly earlier ages on average than their nonevangelical peers (respectively, 16.38 years old versus 16.52 years old), evangelical Protestant couples are also slightly more likely to divorce than nonevangelical couples, and evangelical mothers are actually more likely to work full time outside the home than their nonevangelical peers.

While the devout who make traditional marriages work have happy stable lives, economic circumstances have made it harder to find matches that support gendered family roles and to get marginal couples through family tensions.

Sociologist Paul Amato concludes that among the marriages least likely to last are those in which women who would prefer homemaking roles end up working outside of the home much more than they expected because of the husband’s inability to support the family.

These factors reflect class and cultural differences, but all of our research suggests that the great recession is likely to make things worse. The hallmark of what we have termed the blue family paradigm is training for autonomy.

The full op ed piece can be found here.

The authors have also just released a book, "Red Families vs. Blue Families, Legal Polarization and the Creation of Culture," with Oxford University Press.  Read more about that text here.


March 19, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Suk: “The Trajectory of Trauma: Bodies and Minds of Abortion Discourse”

Jeannie Suk (Harvard Law School) has posted The Trajectory of Trauma: Bodies and Minds of Abortion Discourse, 110 Columbia L. Rev.__ (forthcoming 2010).  Here is the abstract:

What is the legal import of emotional pain following a traumatic event? The idea of women traumatized by abortion has recently acquired a constitutional foothold. The present Article is about this new frontier of trauma. I argue that the legal discourse of abortion trauma grows out of ideas about psychological trauma that have become pervasively familiar in the law through the rise of feminism. The Supreme Court’s statement in Gonzales v. Carhart, that some women who have abortions feel “regret” resulting in “severe depression and loss of esteem,” has provoked searing criticism because talk of protecting women from psychological harm caused by their own decisions seems to recapitulate paternalistic stereotypes inconsistent with modern egalitarian ideals. I argue that a significant context for the newly prominent discourse of abortion regret is the legal reception of psychological trauma that has continually gained momentum through feminist legal thought and reform since the 1970s. Rather than representing a stark and unmotivated departure, the notion of abortion trauma continues a legal discourse that grew up in precisely that period: a feminist discourse of trauma around women’s bodies and sexuality. This intellectual context gives meaning to the present discourse of women’s psychological pain in our legal system. The ideas informing abortion regret are utterly familiar once contextualized in modern legal understandings of women that have developed in the period since Roe.


March 19, 2010 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Thursday, March 18, 2010

Ristroph and Murray: Disestablishing the Family

Alice Ristroph (Seton Hall University School of Law) and Melissa Murray (University of California Berkeley School of Law) have posted "Disestablishing the Family" (forthcoming Yale Law Journal) on SSRN.  Here is the abstract:

This Essay explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships. Though substantial rights to what might be called "free exercise of the family" have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Essay suggests reasons to rethink these existing familial establishments. Disestablishment is a risky and unpredictable enterprise, but its risks may be the risks inherent in liberty.


March 18, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

30 is the new 60?

Last month, the Wall Street Journal offered a very interesting article suggesting that the best science may be done by young scientists in their 20’s.  Granted, the same paradigm does not apply to legal scholars, but the article may nonetheless be worrisome for some, including this blogger:

Scientific revolutions are often led by the youngest scientists. Isaac Newton was 23 when he began inventing calculus; Albert Einstein published several of his most important papers at the tender age of 26; Werner Heisenberg pioneered quantum mechanics in his mid-20s. At the time, these men were all inexperienced and immature, and yet they managed to transform their fields.

Youth and creativity have long been interwoven; as Samuel Johnson once said, "Youth is the time of enterprise and hope." Unburdened by old habits and prejudices, a mind in fresh bloom is poised to see the world anew and come up with fresh innovations—solutions to problems that have sometimes eluded others for ages.

Such innovation could be at risk in modern science, as the number of successful young scientists dramatically shrinks.

Read more here.


March 18, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 17, 2010

Lesbian Sergeant Discharged After Police Tell Military

The Associated Press is reporting the story of a sergeant outed by police after spying a marriage license during a search of the home she shared with her partner.

Former Air Force sergeant Jene Newsome says she played by the rules. She never told anyone in the military that she was a lesbian.

But Newsome was discharged earlier this year under the military's "don't ask, don't tell" law after Rapid City, S.D., police officers saw an Iowa marriage license in her home and told the Ellsworth Air Force Base.

The police were at Newsome's home in November with an arrest warrant for her partner, who was wanted on theft charges in Alaska.

Newsome and the American Civil Liberties Union have filed a complaint against the department claiming police invaded her privacy.

Rapid City Police Chief Steve Allender says Newsome was uncooperative, and the marriage license was relevant because it established the residency and the relationship of the two women.

Read the AP story here.


March 17, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

New Meaning of Early Education

A study published in Psychological Science shows that fetuses regularly hearing two languages are more open to being bilingual.  Read more about the study here.


Hat Tip: Elizabeth Ryznar

March 17, 2010 in Science | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 16, 2010

Tragic Story of a Family Court Ruling Gone Wrong

A California judge has a tough haul for re-election after his decision refusing to grant a protective order ends in tragedy.

The judge didn't believe the father was a threat and denied the mother's plea to keep him away from their 9-month-old son. It was a seemingly routine ruling in a busy family law court called on too often to referee passionate fights between broken young families over the care of babies.

"My suspicion is that you're lying," Judge Robert Lemkau told Katie Tagle, 23.

Ten days later, her 25-year-old ex-boyfriend Stephen Garcia shot and killed their baby son and himself and the case was routine no more. A public frenzy ensued.

"His treatment of Katie was horrific," said James Hosking, a local prosecutor challenging the judge. "Judge Lemkau's ruling in the Tagle case was indefensible."

In particular, Hosking said Lemkau may have violated judicial ethics requiring judges to treat litigants with respect when he said he suspected Tagle was lying.

Hosking said he would have ruled in favor of Tagle until it could be determined which parent was telling the truth.

Lemkau, in his first interview since the controversy erupted, told The Associated Press he regretted calling Tagle a liar and was "crushed" as a father and grandfather by the murder-suicide. He said he couldn't sleep for a week after hearing the news.

"The worst nightmare of a judge," he said, "is to deny a restraining order and there are catastrophic results."

Nonetheless, he stands by his decision "based on the evidence before me" and argues further that a contrary ruling that day wouldn't have stopped Garcia.

"Everyone lies in family law court," said divorce lawyer Guy Herreman, who has appeared before Lemkau and respects the jurist as fair. "That's just the facts of life."

At the heart of Lemkau's ruling are two e-mails sent by "John Hancock" and labeled "Necessary Evil" that told a long, rambling story of a father who killed himself and his 9-month-old son after his ex-girlfriend failed to reconcile with him. Tagle told the judge Garcia sent the e-mails and meant to carry out the plan. Garcia denied it.

Amid the he-said, she-said argument before him, Lemkau decided Garcia could retain partial custody of his son - especially since another judge on Jan. 12 found that Garcia wasn't a threat.

"All I had were the e-mails," Lemkau said. "The source of the e-mails was indeterminate."

Tagle last saw her baby on Jan. 28 when she handed him over to Garcia in a Victorville parking lot.

The case has sparked renewed scholarly debate about the propriety of electing judges.

It's precisely these public uproars over unpopular decisions that opponents of electing judges in contested races argue are unfair.

Retired U.S. Supreme Court Justice Sandra Day O'Connor and others are campaigning to change the selection-process in the states that elect judges, arguing that campaign donors are often lawyers who appear routinely before the candidate-judges. They also say judges should be free to make unpopular decisions without having to worry about ballot box repercussions.

"If the judge followed the law, it is simply wrong to punish him for that," said Northwestern University law professor Stephen Presser, a leading scholar on electing judges. "When you start electing judges, they start playing to public sympathies."

Read the full story here.


March 16, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sparrow: “Therapeutic Cloning and Reproductive Liberty”

Robert Sparrow has recently published Therapeutic Cloning and Reproductive Liberty, 34 Journal of Medicine and Philosophy 102 (2009).  Here is the abstract:

Concern for “reproductive liberty” suggests that decisions about embryos should normally be made by the persons who would be the genetic parents of the child that would be brought into existence if the embryo were brought to term. Therapeutic cloning would involve creating and destroying an embryo, which, if brought to term, would be the offspring of the genetic parents of the person undergoing therapy. I argue that central arguments in debates about parenthood and genetics therefore suggest that therapeutic cloning would be prima facie unethical unless it occurred with the consent of the parents of the person being cloned. Alternatively, if therapeutic cloning is thought to be legitimate, this undermines the case for some uses of reproductive cloning by implying that the genetic relation it establishes between clones and DNA donors does not carry the same moral weight as it does in cases of normal reproduction.


March 16, 2010 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Monday, March 15, 2010

Gender Determined at Birth or by Birth Certificate?

The latest news story on the question of whether gender (for marriage purposes) is determined at birth or by what is recorded on the birth certificate:

Danielle Pauline Severson takes female hormones, dresses and acts like a woman and plans to have sex reassignment surgery so she physically looks like a woman.

Yet the pre-operative transgender female, who was born Dana Paul Severson, will have to tie the knot to a woman in California.

After being jilted by officials in Nevada—which bills itself as the wedding capital of the world—Severson and Rebecca Love were granted a marriage license Wednesday by officials in Severson's hometown of Redding, Calif.

While both states prohibit same-sex marriage, officials in California said the two qualified for the license because Severson's birth certificate lists her as a man. But officials in Nevada nixed the request, saying they consider Severson a woman because that's what her driver's license says.

Shannon Minter, legal director at the National Center for Lesbian Rights in San Francisco, said the circumstances of the case are unique.

But he said transgender people are often caught between conflicting state laws and policies about how to determine a person's gender.

"The same person may be considered legally a male in one state and legally female in another," Minter said. "This is a very painful and confusing situation for trans people."

Shasta County (Calif.) Clerk Cathy Darling said her office issued the marriage license only after consulting with the California Department of Health.

"The state told us to reference the birth certificate," she said. "It's a legal gray area. State law doesn't speak to this."

"There's case law to support that the gender of an individual at birth remains that person's gender regardless of what procedures are taken," he said. "But there's case law to support that at a certain point in this procedure the gender of an individual would change."

Lee Rowland, attorney for the American Civil Liberties Union in Nevada, said her group is determined to do away with statewide bans on same-sex marriages.

"Until that day comes, however, we believe it is appropriate for clerks to rely on the gender on a government-issued ID to avoid the risk of invasively investigating someone's gender," she said.

Read more here.


March 15, 2010 in Marriage (impediments) | Permalink | Comments (3) | TrackBack (0)

More CA Women Dying Due to Pregnancy

From California Watch:

The mortality rate of California women who die from causes directly related to pregnancy has nearly tripled in the past decade, prompting doctors to worry about the dangers of obesity in expectant mothers and about medical complications of cesarean sections.

For the past seven months, the state Department of Public Health declined to release a report outlining the trend.  

California Watch spoke with investigators who wrote the report and they confirmed the most significant spike in pregnancy-related deaths since the 1930s. Although the number of deaths is relatively small, it’s more dangerous to give birth in California than it is in Kuwait or Bosnia.

Read the rest here.


March 15, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, March 14, 2010

Koller: "Government as God: An Update on Federal Intervention in the Treatment of Critically Ill Newborns "

 Dionne Koller (University of Baltimore School of Law) has posted "Government as God: An Update on Federal Intervention in the Treatment of Critically Ill Newborns" (forthcoming New England L. Rev.) on SSRN.  Here is the abstract:

Whether a severely impaired or critically ill infant should receive lifesaving, and sometimes extraordinary, medical treatment, or be allowed to die, is hotly debated. The issue initially garnered public attention in 1982, when an infant who was born with Down's Syndrome, “Baby Doe,” was allowed to die from a correctable birth defect. Following this, the federal government took a lead role in determining the fate of critically ill newborns. In the meantime, doctors, philosophers, and others have debated whether federal interference in this area is appropriate.

This essay will bring the reader up to date on the “Baby Doe” issue by summarizing the contours of the debate and explaining the legislation, in the form of amendments to the Child Abuse Prevention and Treatment and Adoption Reform Act of 1978 (CAPTA), that ultimately resulted from the initial “Baby Doe” controversy. This essay also will add an additional voice to the discussion by criticizing federal intervention in this area on three main grounds. The first ground is that the federal government purports to solve a problem that largely does not exist, and in so doing, it oversimplifies the profound moral questions that surround the issue of whether to aggressively treat a severely impaired newborn. Secondly, federal intervention in this area through the CAPTA Amendments is bad policy because it eliminates parents from the treatment decision. Thirdly, the policy fails on a philosophical level because it does not square with our intuitions. Finally, this essay will highlight a view that is largely missing from the debate on this issue - that of the practicing physicians who work with critically ill, severely impaired newborns and their parents every day. The essay will conclude by briefly suggesting an alternative policy approach, which would presume that parents, in consultation with their doctors, are the appropriate decision-makers in these cases unless circumstances warrant otherwise.


March 14, 2010 | Permalink | Comments (0) | TrackBack (0)