Family Law Prof Blog

Non-Moms on the Supreme Court

The New York Times recently ran an interesting article prompted by Elena Kagan’s nomination to the Supreme Court as a non-mom.  The author writes:

“I wish she were a mother,” a feminist friend said when Kagan was nominated. “This sends the wrong message.”

But what exactly makes it wrong? Is it because there is some inherent “good” to being a parent — a quality of compassion or tolerance, a worldview beyond your own mortality — that would serve a justice well? Some argue that there is. “A jurist with a mama bear lurking inside,” writes Hilary Shenfeld at iVillage.com, would give the Supreme Court someone who has “wiped away dirt and tears, helped with homework and heartache, made as many decisions as dinners, really listened and really heard.”

Perhaps. But while parenthood certainly influences the way you see the world, it does not influence it in any predictable way. There are studies that show legislators become more conservative as they have more daughters, others that find that male executives become champions of women’s rights in the workplace when they raise girls. So it is, at best, a footnote in predicting how a judge will rule from the bench.

Read the full article here.

MR

Redding: "Dignity, Legal Pluralism, and Same-Sex Marriage"

Jeff Redding (Saint Louis University School of Law) has posted "Dignity, Legal Pluralism, and Same-Sex Marriage" on SSRN.  Here is the abstract:

This Article aims to contribute to the radical re-thinking of family law that is on-going in the contemporary United States by analyzing recent U.S. developments with respect to same-sex marriage from a transnational perspective. In doing so, this Article argues against the odd and overstated quality of recent American state court discussions concerning the necessary relationship between dignity and family law pluralism. These discussions, and the conclusions that they have given rise to, have resulted not only in the erasure of profound and enviable gay and lesbian legal achievements - “domestic partnerships,” “civil unions,” and the like - but also to a severe backlash in the form of Proposition 8 and similar state ballot initiatives.

The conventional (liberal) view is that Proposition 8 and similar laws which create “separate but equal” relationship-recognition regimes for homosexuals (as opposed to traditional heterosexual marriage) pose insurmountable affronts to gay and lesbian dignity. Using a transnational perspective and analysis, however, this Article proposes an alternative, more optimistic take on the relationship between dignity, same-sex marriage, and legal pluralism. Indeed, while the political campaign around Proposition 8 was heated and at times vitriolic, the ballot initiative ultimately returned California to a situation of family law pluralism, i.e. a situation where same-sex and opposite-sex couples are each governed by different (family) laws. In this instance, these different family laws grant essentially the same rights and responsibilities to each sort of couple.

As this Article argues, however, there are other possible results from maintaining a separate system of family law for gays and lesbians, namely the possibility of gay and lesbian people exercising agency with respect to the family laws which directly affect them. With this agency, gays and lesbians would have the possibility of experiencing something more than “separate but equal” family laws being applied to them. Indeed, gays and lesbians would have the opportunity to author - or, in other words, to exercise agency with respect to - their own “separate and better” alternatives to (heterosexually-authored) “majoritarian marriage.” These positive aspects to Proposition 8, and family law pluralism more generally, should not be overlooked, and this Article explores how they can be capitalized upon in a principled, dignity-oriented manner.

AC

New Male Contraceptive?

From CBS News:

The Bill and Melinda Gates Foundation has awarded a $100,000 grant to a couple of researchers investigating the use of ultrasound as a reversible male contraceptive.

The technique already works on rats, according to James Tsuruta, of the University of North Carolina, who led the research.

"We think this could provide men with reliable, low-cost, non-hormonal contraception from a single round of treatment," he said.

The focus now is to come up with a therapeutic ultrasound that would safely deplete testicular sperm counts, which presumably would presage the development of a cheap (and reversible) method of contraception for men.

A hat tip to Discovery Magazine for noticing this item. While details about how the device would function still remain scarce, since sperm don't like excessive heat, Discovery suggests the process may involve "heating and shaking working in combination."

Read the article here.

MR

Martiny: "Is Unification of Family Law Feasible or Even Desirable?"

Dieter Martiny has posted "Is Unification of Family Law Feasible or Even Desirable?" on SSRN.  Here is the abstract:

A few decades ago the term ‘European family law’ sounded a little bit artificial or even strange. Today there is a growing awareness that the two notions have something in common. However, family law as such is still not a matter of general concern in the development of Eu¬ropean civil law. It is often only discussed in the context of European human rights, fundamental rights in the EU or private international law. However, compared to the past, one has become more and more aware of the problems originating from the diversity of family law in Europe and the methods needed to improve the current situation. Nevertheless, the scepticism towards unnecessary attempts at legislative unification and the creation of a state of sameness still overshadows the issue.

AC

Paternal Postpartum Depression

From WSJ:

It's not just new moms who get postpartum depression. More than one in 10 fathers become depressed after the birth of their child, too, according to a new study that researchers said underscores the need for more awareness of men's depression.

Postpartum depression in mothers has been well-recognized, but much less attention has been focused on how new fathers fare. That's because women are usually the primary care givers and postpartum depression was considered a condition likely linked to hormonal changes in pregnancy. Experts say treating depression, whether it's in the mother or father, is important because it raises the risk for long-term behavioral and psychiatric problems in the child.

Researchers from the Eastern Virginia Medical School in Norfolk sought to get an accurate estimate for what percentage of men experience depression in the year after their child was born, using commonly accepted depression measures. They conducted a statistical review of 43 previously published studies involving 28,000 male and female adults.

Some 10.4% of fathers experience depression during the postpartum period, the analysis showed. In the general population, 4.8% of men are believed depressed at any given point in time, according to government data.

For women, the rate of postpartum depression was estimated at nearly 24%, according to the new analysis, which was published Tuesday in JAMA, the Journal of the American Medical Association.

Read more here.

MR

Call for Papers: Family Law/Children & the Law Junior Faculty Workshop

The William & Mary School of Law is sponsoring a workshop for junior scholars working on legal issues related to children and families.  The workshop will be held this summer on the campus of William & Mary in Williamsburg, Virginia.  This is the second in a series of junior faculty workshops on topics related to family law and children and the law.  The first was hosted in 2009 by the Frances Lewis Law Center at Washington & Lee University.

 

The workshop will include both junior and senior scholars.  Each junior scholar will present his or her paper to the group, with comments from a senior scholar and from the audience to follow.  The senior scholars will also present papers during the conference, on topics of their choosing. 

 

The workshop can accommodate eight junior scholars.  Applications are welcome from untenured faculty and recently tenured faculty and from those who will be joining a faculty in the upcoming academic year.  Junior clinicians are very welcome.  There is no registration fee for this conference and the William & Mary School of Law is pleased to furnish meals and one night’s lodging for the participants.  The workshop will begin at 11:00 a.m. on Thursday, July 15 and end at 2:00 p.m. on Friday, July 16.

 

Junior scholars wishing to participate in the workshop are asked to e-mail an abstract and a curriculum vitae by June 9, 2010 to Administrative Assistant Felicia Burton at faburt@wm.edu.  The senior scholars participating in the workshop will select papers no later than June 16.

 

For information, please contact Professor Jim Dwyer (jgdwye@wm.edu) and Professor Vivian Hamilton (vhamilton@wm.edu) at William & Mary School of Law.  Please email both of us to ensure a prompt response.

 

AC

Titshaw: “The Meaning of Marriage: Immigration Rules and Their Implications for Same-Sex Spouses in a World Without DOMA”

Scott Titshaw (Mercer University School of Law) has posted The Meaning of Marriage: Immigration Rules and Their Implications for Same-Sex Spouses in a World Without DOMA, 16 William & Mary Journal of Women and the Law, 537 (2010) on SSRN.  Here is the abstract:

An estimated 35,000 U.S. citizens are living in our country with same-sex foreign partners, but these couples have no right to stay here together on the basis of their relationship. Many of these Americans are faced with a choice between their partners and the country they love. This is true even if the couple is legally married in one of the growing number of U.S. states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines “marriage” for all federal purposes as an exclusively heterosexual institution, stands squarely in their way.

Reform options that would help these couples stay together in the United States include a judicial determination that marriage discrimination violates the U.S. Constitution, federal legislation specifically recognizing these couples under U.S. immigration law, and the repeal or striking down of DOMA. This article focuses on the latter possibility.

Repealing or striking down DOMA would not necessarily result in a clear, uniform rule recognizing all same-sex marriages under the Immigration and Nationality Act (INA). There is, however, a wealth of guidance about how our immigration system deals with marriages that are recognized in some, but not all, U.S. states. This article maps out the legal terrain that would remain in an immigration world without DOMA.

U.S. immigration cases involving marriage validity have been decided in a piecemeal, case-specific manner. A systematic review of the case law, however, reveals that U.S. Attorneys General, the Board of Immigration Appeals (BIA), immigration officials, and most federal courts have consistently applied the same standards to determine marriage validity under the INA.

These standards have been employed in dozens of cases involving biracial marriage, marriage between close relatives, marriage involving minors, marriage involving transgender spouses, proxy marriage, polygamy, and even same-sex marriage before DOMA.

After distilling and describing a three-step test that embodies the well-established rules for dealing with disputed categories of marriage, this article applies this analysis to same-sex spouses whose marriages are recognized by a U.S. state or a foreign country. It identifies some answers and illuminates possible approaches to a few hard questions that would remain.

MR

Ryznar: "International Commercial Surrogacy and its Parties"

Margaret Ryznar has posted "International Commercial Surrogacy and its Parties" (forthcoming John Marshall Law Review) on SSRN.  Here is the abstract:

When discussing international commercial surrogacy, it is essential to remember that at the heart of this market are women and children, which requires an in-depth analysis of the issues that implicate these parties to a commercial surrogacy. In undertaking such an analysis, this Article considers the rights, interests, and obligations of these parties to a surrogacy, as well as the various opportunity costs of international commercial surrogacy. This framework is particularly relevant today as India, an international surrogacy hotspot for American couples, begins to legislate on the subject, and relatedly, as American states continue to grapple with issues regarding surrogacy.

AC

Egg Donation Ads in College Newspapers

From The New York Times:

… Dr. Aaron Levine, an assistant professor of public policy at the Georgia Institute of Technology, examined more than 100 egg donation ads from 63 college newspapers. He found that a quarter of them offered compensation exceeding the $10,000 maximum cited in voluntary guidelines issued by the American Society for Reproductive Medicine, a professional association.

The guidelines state that payments of $5,000 or more above and beyond medical and related expenses “require justification” and that payments above $10,000 “are not appropriate.” Ads in newspapers at Harvard, Princeton and Yale promised $35,000 for donors, Dr. Levine found, while an ad placed on behalf of an anonymous couple in The Brown Daily Herald offered $50,000 for “an extraordinary egg donor.”

 “The concern is that some young women may choose to donate against their own best interests,” Dr. Levine said. “They’ll look at the money on offer and will overlook some of the risks.”

 The study noted the possibility that the ads represented a “bait and switch” strategy, with large offers primarily designed to lure donors but with prices negotiated downward once they respond.

 In addition to limiting compensation, the society’s guidelines forbid paying additional fees to egg donors for specific traits. But the study found that every 100-point difference in a university’s average SAT scores was correlated with an increase of more than $2,000 in the fees advertised for potential egg donors in the campus newspaper.

Read more here.

MR

Gauging Divorce Risk

Interesting list of 15 "predictors" of divorce in The Daily Beast.  Here's a sample:

2. If you live in a red state, you're 27 percent more likely to get divorced than if you live in a blue state.

Maybe that's because red-state couples traditionally marry younger—and the younger the partners, the riskier the marriage. According to the U.S. Census Bureau, the states with the lowest median age at marriage are Utah, Arkansas, Kentucky, and Oklahoma.

(Source: National Vital Statistics Report, 2003; cited in The Compassionate Community: Ten Values to Unite America, by Jonathan Miller and Al Gore)

3. If you argue with your spouse about finances once a week, your marriage is 30 percent more likely to end in divorce than if you argue with your spouse about finances less frequently.

Money woes kill marriages. The same study also found that couples with no assets at the beginning of a three-year period are 70 percent more likely to divorce by the end of that period than couples with $10,000 in assets. Most divorce risk factors—such as age and education level—correlate with poverty, says Statistics in Plain English author Timothy Urdan. "Whenever you see an explanation for anything, try to figure out what the explanations are for those explanations."

(Source: Jeffrey Dew, "Bank on It: Thrifty Couples Are the Happiest," University of Virginia/National Marriage Project/The State of Our Unions, 2009)

4. If your parents were divorced, you're at least 40 percent more likely to get divorced than if they weren't. If your parents married others after divorcing, you're 91 percent more likely to get divorced.

This could be because witnessing our parents' divorces reinforces our ambivalence about commitment in a "disposable society," says Divorce Magazine publisher Dan Couvrette. "In most people's minds, it's easier to get a new car than fix the one you've got."

(Source: Nicholas Wolfinger, Understanding the Divorce Cycle, Cambridge University Press, 2005)

5. If only one partner in your marriage is a smoker, you're 75 percent to 91 percent more likely to divorce than smokers who are married to fellow smokers.

"The more similar people are in their values, backgrounds, and life goals, the more likely they are to have a successful marriage," notes Tara Parker-Pope. From age to ethnicity to unhealthy habits, dissimilarities between spouses increase divorce risks.

(Source: Rebecca Kippen, Bruce Chapman and Peng Yu, "What's Love Got to Do With It? Homogamy and Dyadic Approaches to Understanding Marital Instability," Melbourne Institute of Applied Economic and Social Research, 2009)

Read all 15 here.

AC

Carroll: “Reviving Proxy Marriage”

Andrea Beauchamp Carroll (Louisiana State University, Baton Rouge) has posted Reviving Proxy Marriage, Brooklyn Law Review (forthcoming) on SSRN.  Here is the abstract:

Marriage is merely a contract. It creates myriad rights and responsibilities - essentially conferring a status - but the American states recognize without exception that the parties’ relationship is at base nothing more than a contractual one. Still, modern society has elevated the marriage contract above all others. This distinction has overwhelmingly focused on the very personal nature of the marital relationship, a feature nonexistent in the arms-length contractual dealings with which we are accustomed to working when applying contract law. As a result, marriage is subject to a number of requirements, even at the level of contractual formation, which are unknown to the general law of contract. No contract is subjected to as high an entry requirement - typically a formal ceremony - as is marriage. Moreover, the application of one of the most fundamental doctrines of contract law, namely, that a contracting party need not formally enter into the contractual relationship himself but may instead designate an agent to act on his behalf, is generally viewed as inapplicable to the marital relationship. So-called “proxy marriages,” then, whereby one party authorizes an agent to stand in his stead at the marriage ceremony, are widely disdained in the United States.

Only five American states have recognized otherwise, and nearly all in an exceptionally narrow context involving military personnel. So serious is the contempt for proxy marriage that the doctrine has been rejected throughout most of this country for nearly one hundred years. Elsewhere, proxy marriage is not so abhorred; acceptance of the doctrine is viewed as an equitable necessity throughout much of the world. Indeed, a United Nations Convention studying marriage and its entry requirements identified diverse views on the permissibility of proxy marriage as one of the most globally divisive issues plaguing family law today.

This article argues that the time has come for American states to reevaluate the efficacy and equity of continuing a distinction between marriage and all other contractual relationships to which agency theory may apply. The proliferation of couples (and their children) who stand to benefit from the acceptance of proxy marriage is at an all-time high given rates of military deployment abroad, parties pursuing employment away from home, and the increased number of same sex couples seeking to establish a marital relationship. Each of these groups has a compelling argument for the necessity of proxy marriage, and no other avenue exists for conferring upon them the legal relief they desire. Moreover, agency law has evolved drastically in the last thirty years. Agency theories, once relegated almost exclusively to commercial transactions, now have application to scores of personal dealings. Among other things, one can, only as a result of very recent legal developments, appoint an agent to make end-of-life decisions, appoint an agent to draft a will, even appoint an agent to exercise custody over one’s child. In other words, agency doctrine has permeated the most personal of our relationships, save the marital relationship.

The time has come to reassess our long-standing intolerance of proxy marriage and to stop singling out the marital contract as unworthy of the regime of agency. Creating symmetry in agency law by sanctioning proxy marriage is simply the next logical step in the evolution of agency doctrine as applied to intimate relationships and it is a step that can be taken confidently given the strong foundation of protection that American agency rules already affords principals. In short, agency principles are ripe for application to the contract of marriage, and states should begin to embrace the idea of a proxy marriage - a groomless, perhaps even brideless, wedding.

MR

Jacoby: "Credit for Motherhood"

Melissa Jacoby (UNC at Chapel Hill) has posted "Credit for Motherhood" (forthcoming North Carolina Law Review) on SSRN.  Here is the abstract:

Prepared for a symposium on Globalization, Families and the State, this essay builds on prior work exploring the impact of consumer lenders who sell credit products for assisted reproduction and adoption. After reviewing some basic attributes of the parenthood lending market, the essay discusses how not-for-profit lenders promote traditional conceptions of motherhood and the division of carework in ways that credit discrimination laws were not designed to address. The essay also articulates some incentives of for-profit lenders to sell motherhood and potential implications for women who are ambivalent about becoming parents.

AC