Family Law Prof Blog

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

Saturday, May 14, 2011

Caster: "Don’t Split the Baby: How the U.S. Could Avoid Uncertainty and Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law Regime"

Austin Caster has posted "Don’t Split the Baby: How the U.S. Could Avoid Uncertainty and Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law Regime" (10 Conn. Public Int. L. J. 139 (2010)) on SSRN.  Here is the abstract:

This article will show that the United States can protect the rights of the intended parents, the surrogate, and the child while avoiding uncertainty and unnecessary litigation by enacting uniform legislation akin to the United Kingdom’s regime. The first section will examine the history of surrogacy law in the United States, demonstrate the inconsistency of these laws, and suggest that reform is needed.

Section two will discuss the United Kingdom’s legislative response to the problem of surrogacy arrangements, which has provided more uniformity despite obstacles similar to those faced in the United States. The third section will illustrate that the United States should adopt a uniform surrogacy law regime using American constitutional and contract law as a basis for such legislation. The fourth section will argue why even those who disagree that families created through surrogacy are constitutionally protected should support uniform federal legislation. Finally, the fifth section will address why even the most logical and convincing counterarguments do not provide a rational basis for perpetuating our patchwork surrogacy regime.


May 14, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

McCluskey: "How Queer Theory Makes Neoliberalism Sexy"

Martha McCluskey (Univ. of Buffalo Law School) has posted "How Queer Theory Makes Neoliberalism Sexy" on SSRN.  Here is the abstract:

Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private power is better than value-laden state regulation.

First, queer anti-statism risks joining neoliberalism in celebrating and naturalizing an imagined space of private bargaining free from state regulation. In rejecting liberal claims of state-protected rights, queer theory relies on a standard law-and-economics argument: all rights have costs. Rights to family leave, for example, may give only the illusion of state protection for workers with family responsibilities, because workers may "pay" for state-protected family leave with lower wages, fewer jobs, fewer promotions or more discrimination against women. However, a critical perspective should also recognize the converse: that all costs have rights. The private power that makes us skeptical of rights is not outside the state but produced by it.

Second, queer anti-moralism joins neoliberalism in masking the moral judgments that shape whose claims to protection against injury get privileged as "good" acts of rational self-interest maximizing by freely choosing individuals and whose injury claims get disparaged as unproductive sentimental weakness that constrain individual freedom.


May 14, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Chinese Census Results Show Aging Population

Recent census results are out in China.  From the Wall Street Journal:

Initial census results released Thursday show China's population, the world's largest, rose to 1.34 billion as of last year, from 1.27 billion in 2000. That puts average annual growth at 0.57% over the decade, down from 1.07% in 1990-2000.

The census, conducted last year, also shows that people over the age of 60 now account for 13.3% of China's population, compared to 10.3% in 2000. And the reserve of future workers has dwindled: People under 14 now make up 16.6% of the population, down from 23% 10 years ago.

Yet China's leaders vowed again this week to maintain the one-child family-planning policy. This despite the census results and a decade-long campaign by an informal advocacy group of top Chinese academics and former officials who have risked their careers to argue the policy is based on flawed science and vested bureaucratic interests. China's policy is enforced by the National Population and Family Planning Commission, which employs a half-million full-time staffers and six million part-timers. It collects millions of dollars a year in fines from people who violate family-planning rules.

Read more here.


May 14, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, May 13, 2011

Louisiana's Proposed Family Law System

A new family law court system may come to pass in Louisiana.  Read about it here.


May 13, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, May 12, 2011

Targets of Celebrity Divorce Battles

Forbes recently ran an article about the things at the center of celebrity divorce battles.  Read it here.


May 12, 2011 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 11, 2011

What Will They Do When A Woman's President?

An astounding story from Yahoo! News regarding the recent photo of Hillary Clinton watching the raid on Bin Laden:

In the photo, President Obama and his national security team are huddled around a conference table in the White House Situation Room, watching CIA director Leon Panetta narrate last Sunday's raid on Osama bin Laden's compound. The mood is clearly tense.


"The Hillary Clinton expression is the one that holds the photograph fully," Time's photo director told the magazine. "You can see 10 years of tension and heartache and anger in Hillary's face," Conde Nast's Scott Dadich agreed.

Turns out she was probably just coughing during that crucial moment captured by White House photographer Pete Souza. But nevertheless, the image still proved a bit too racy for at least one of the many newspapers that printed it.

That would be the Ultra-Orthodox Hasidic broadsheet Der Tzitung, published in Brooklyn. The paper photoshopped Clinton, as well at the only other woman who could be seen in the room--Audrey Tomason, the national director of counterterrorism--out of the frame.

Read more here.


Hat Tip: ER

May 11, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 10, 2011

Carbone & Cahn on "The Opt-in Movement"

June Carbone and Naomi Cahn recently wrote a piece featured on Huffington on "the 'opt-in movement,' in which "many mothers are willing to give up income if that means taking control of their schedules, and, perhaps most important, doing meaningful, challenging work in their chosen professions rather than what they see as the less interesting work of the often-stigmatized 'mommy track.'"

Read it here in its entirety.


May 10, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Shmueli & Schuz: "Between Tort Law, Contract Law, and Child Law: How to Compensate the Left-Behind Parent in International Child Abduction Cases"

Benjamin Shmueli (Bar-Ilan Univ. Faculty of Law) & Rhona Schuz have posted "Between Tort Law, Contract Law, and Child Law: How to Compensate the Left-Behind Parent in International Child Abduction Cases" (forthcoming Columbia Journal of Gender & Law) on SSRN.  Here is the abstract:

This article deals with a unique intersection between civil (tort and/or contract) law, criminal law, family and child law, and international law.

Perhaps one of the most traumatic crises which can occur to an individual is when his child is abducted to another country by the other parent. The widely ratified Hague Convention on the Civil Aspects of International Child Abduction 1980 is designed to enable the crisis to be resolved as quickly as possible by mandating the authorities in the state to which the child has been abducted to restore the status quo ex ante by ordering return of the child to the state of his habitual residence immediately prior to the abduction, unless one of the narrow exceptions in the Convention is established.

However, this remedy by itself does not put the left-behind parent in the position he was in before the abduction. In particular, the process of recovering the child often involves the left-behind parent in considerable financial expense. For example, he may incur costs in identifying the whereabouts of the child, in traveling to the requested state and staying there in addition to the legal costs involved in bringing an application for return in the courts of the requested state. Furthermore, the discovery that his child has been abducted together with the uncertainty as to whether and when he will recover the child and lack of or reduced contact with the child will often cause considerable emotional distress to the left-behind parent. The issue of compensation for the left-behind parent is not discussed in the existing literature.

This paper examines - maybe for the first time in the literature - the extent to which it is appropriate to require the abductor to compensate the left-behind parent and the preferred framework for the provision of such compensation. We present four alternative models: the tort model (in which the left-behind parent brings a civil-tort claim against the abducting parent), the contract model (in which the left-behind parent brings a civil-contract claim against the abducting parent in cases in which there is a contract between them and it has been breached), the criminal model (in which compensation is awarded in criminal proceedings against the abducting parent), and the Abduction Convention model (in which compensation is awarded by the court of the state which is requested to return the child as part of the Convention proceedings). We analyze the advantages and disadvantages of each model from both a theoretical and practical perspective. After concluding that the Abduction Convention model is the preferred model, we discuss various dilemmas that arise in implementing this model and consider how to find an appropriate balance between the objectives of tort law and those of child law, as expressed in the Abduction Convention.

Among other considerations, this article examines the delicate question whether in determining the compensation courts should consider: the background of the relations between the abductor and the left-behind parent; the relations between the left-behind parent and the child; contributory negligence (or contributory/comparative fault) the part of the left-behind parent and the social background of the family, including the question of the involvement of the authorities and the possibility that the abductor has taken a step out of frustration and despair due to lack of proper treatment by the authorities.


May 10, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Monday, May 9, 2011

Best & Worst Moms

In honor of mother's day yesterday, Time made a list of best and worst fictional moms.  Read it here.


May 9, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, May 8, 2011

Tabasso: "With or Without You: Hazard of Divorce and Intra-Household Allocation of Time"

Domenico Tabasso (Melbourne Institute of Applied Economics & Social Research) has posted "With or Without You: Hazard of Divorce and Intra-Household Allocation of Time" on SSRN.  Here is the abstract:

This paper investigates the relationship between the probability of divorce and marriage specific investments. As these investments in terms of childcare and household activities are likely to increase the marital surplus, they are consequently likely to decrease the risk of divorce. All such activities, however, are characterized by gender role bias through, for example, social norms. In periods in which married women enjoy greater outside options (e.g., by increasing their labor force participation), it is expected that households in which the husband takes on typically female chores are less likely to dissolve, while couples in which the wife takes on typically male chores are more likely to divorce. The paper tests this hypothesis using data from the National Longitudinal Survey NLS) of Mature Women, the NLS Young Women, and the NLSY79. The prediction is strongly supported by the data with respect to older cohorts while it loses empirical relevance when tested on younger individuals. Furthermore, asymmetric effects between genders gain importance over time. Finally, an explanation for the relationship between divorce and marital investments is offered in terms of increasing intra-household time consumption complementarities. To this end, data from the American Time Use Surveys from 1965 to 2005 are studied to illustrate how time spent together by partners in the same household has become increasingly crucial in the American family.


May 8, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)