December 17, 2011
Happy Holidays to All
December 16, 2011
Oman: "How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts"
This Article thus has two goals. The first is to show how the Muslim conception of marriage diverges from the Christian-influenced norms that dominate American law and society. Understanding this divergence provides a necessary background to Islamic mahr contracts. The second goal is to provide lawyers and judges with a doctrinal framework within our current law for analyzing these contracts and reaching sensible results in concrete cases.
The remainder of this Article will proceed as follows: Part II provides an introduction to Islamic law in general, and the law of marriage and divorce in particular, as well as some discussion of how these rules function in practice. Part III summarizes the way in which American courts have dealt with mahr contracts, showing how both husbands and wives seek to deploy arguments based on contract law, the law of premarital agreements, and constitutional law. Part IV provides a framework for analyzing mahr contracts. It argues that such contracts are best dealt with using traditional contract doctrines. Indeed, once the meaning of mahr contracts are properly understood, this Article argues that the common law of contracts is capable of dealing with potential problems presented by mahr contracts without any dramatic legal innovations.
Indigent Parents & the Right to Counsel
From ABA Now:
CHICAGO, Dec. 13, 2011 – Indigent parent-defendants in abuse or neglect proceedings in which the state is seeking custody of their minor children should have the right to state-provided counsel, according to an American Bar Association amicus brief filed with the New Hampshire Supreme Court in In re Christian M. and Alexander M.
Responding to the New Hampshire Court’s request for briefs on the ramifications of a decision in these cases, the ABA states that its long history of examining this issue has led it to conclude that the risk of error when indigent parent-defendants are not represented in such matters is so great that fair and equal access to justice requires the appointment of counsel.
Read more here.
December 15, 2011
NeJaime: "Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination"
As more states consider marriage recognition for same-sex couples, attention turns to the conflict between marriage equality and religious liberty. Legal scholars are contributing substantially to the debate, generating a robust academic literature and writing directly to state lawmakers urging them to include a “marriage conscience protection,” containing a series of religious exemptions, in marriage legislation. Yet the intense scrutiny of religious freedom specifically in the context of same-sex marriageobscures the root of the conflict. At stake is the relational enactment of sexual orientation; same-sex relationships constitute lesbian and gay identity, and religious objections arise largely in response to such relationships. Same-sex marriage is merely one form of sexual orientation identity enactment, and religious objections to same-sex marriage are merely a subset of objections to sexual orientation equality. By exposing the connections between same-sex relationships and lesbian and gay identity, this Article argues for an antidiscrimination regime that includes same-sex relationships more comprehensively; in doing so, it resists the use of marriage as antidiscrimination, both for same-sex couples and religious objectors. Yet even as the “marriage conscience protection” proposed by religious liberty scholars misapprehends the basis of the underlying conflict, its sweeping language threatens to reach into the antidiscrimination domain and target lesbians and gay men based not primarily on their marriages but instead more generally on their same-sex relationships. By permitting religious organizations, as well as some employers, property owners, and small businesses, to discriminate against same-sex couples throughout the course of the couples’ married lives in situations far removed from marriage itself, the “marriage conscience protection” may have unintended consequences that would threaten substantial progress made in antidiscrimination law. Worse yet, using the term “marriage conscience protection” to label instances of discrimination against same-sex relationships would hide an increasing amount of sexual orientation discrimination that antidiscrimination law is just beginning to address.
Adoption Credits for Same-Sex Couples
From the New York Times:
Since the federal government does not recognize same-sex marriage, such couples are viewed as strangers in many spheres of their financial lives. They need to file separate federal tax returns, for instance. And sometimes, that can come with certain advantages.
Take the adoption tax credit. If you adopt your spouse’s child, you cannot claim the credit. But since same-sex married couples are not considered spouses under federal law, they are permitted to use the credit — at least until their unions are recognized.
So when several lesbians seeking to adopt a partner’s child received letters from the Internal Revenue Service that said they could not use the credit, they couldn’t help but wonder: Is the government choosing to recognize our unions only when it’s to the government’s benefit?
As it turns out, the I.R.S. keeps close tabs on many refundable credits: The adoption credit is refundable in 2010 and 2011, which means that the credit reduces the amount of tax you owe, dollar for dollar. And if the amount of the credit exceeds your tax bill, you get to collect that extra cash. Because it’s such an enticing break, it’s also ripe for abuse.
As a result, the I.R.S. conducted more audits by mail last year, and required many couples — gay and heterosexual — to provide more documentation. (In fact, 68 percent of the nearly 100,000 returns on which taxpayers claimed the adoption credit were audited by mail, according to a report by the Government Accountability Office, which reviewed the I.R.S.’s strategy to ensure taxpayers were rightfully claiming the credit.)
Read more here.
December 14, 2011
Rotz: "Do Outside Options Matter Inside Marriage? Evidence from State Welfare Reforms"
Dana Rotz (Harvard) has posted "Do Outside Options Matter Inside Marriage? Evidence from State Welfare Reforms" on SSRN. Here is the abstract:
I analyze the impact of the early 1990s state waivers from Aid to Families with Dependent Children (AFDC) guidelines to understand how changes in options outside ofmarriage affect household expenditures. AFDC waivers decreased the public assistance available to impoverished divorced women and thereby reduced a woman's bargaining threat point in marriage. Using the Consumer Expenditure Survey (CEX) and an empirical synthetic control approach, I find that decreases in potential welfare benefits altered the expenditure patterns of two-parent families. Waivers were associated with increased expenditure on food at home relative to restaurant meals and decreased expenditure on child care and women's clothing, suggesting greater home production and decreased consumption by women. Such changes are evident only for households containing a woman with a reasonable probability of receiving welfare benefits if her marriage ended. The changes in expenditure patterns suggest that reductions in a wife's outside options cause her utility within marriage to decline.
Jones: "Disproportionate Representation of Minority Youth in the Juvenile Justice System: A Lack of Clarity and Too Much Disparity among States 'Addressing' the Issue"
Elizabeth N. Jones has posted Disproportionate Representation of Minority Youth in the Juvenile Justice System: A Lack of Clarity and Too Much Disparity among States “Addressing” the Issue (16 U.C. Davis J. Juv. L. & Pol’y ____ (2012)) on SSRN. Here is the abstract:
This article explores how states are struggling to reduce the overrepresentation of youth of color in their juvenile justice systems by complying with the federal Juvenile Justice and Delinquency Prevention Act. The JJDPA provides funding for states following its directive to identify, assess, and reduce the disproportionate contact by minority youth with the juvenile justice system. This article queries whether the JJDPA is an effective instrument with which to seek racial parity for minority youth who are already “in contact” with the juvenile justice system. It first provides a brief history and overview of the JJDPA, highlighting three areas of potential concern. This article then posits that these three focal points hinder, and may actually serve to undermine, the states from completing their mission of reducing, and eventually eliminating, the disproportionate representation of minority youth in the juvenile justice system. Various states are surveyed, and their limited successes in attempting to reduce disproportionate minority contact are noted. Finally, a strategy to catch children “pre-contact” through a continuum of school and community-based programs is discussed. President Obama’s projected 2012 budget proposes incentives for the states to remain in compliance with the JJDPA, though many of them appear to be in danger of falling out of conformity. With the JJDPA ripe for reauthorization, this issue is aptly timed for debate. This article supplies some ideas for consideration.
December 13, 2011
Kuznicki: "Marriage Against the State: Toward a New View of Civil Marriage"
Jason Kuznicki (Cato Institute) has posted "Marriage Against the State: Toward a New View of Civil Marriage" (Cato Institute Policy Analysis No. 671 (2011)) on SSRN. Here is the abstract:
As U.S. courts have repeatedly declared, marriage is fundamentally a private, individual right. One implication of this view, clear but not always consistently applied, is that the federal role in marriage should be to get out of the way. When it cannot, it should behave in predictable, orderly, and low-cost ways so that individuals may conduct their family and private lives as they think best. When the federal government must act in this area, it should do so only with a view toward preserving individual rights. This paper considers federal marriage policy in a new light by suggesting that some, though far from all, of the federal provisions governing marriage may be understood as protections of this kind, or as guarantees of individual responsibility, as in the case of children. When marriage acts in such a way, it merits federal recognition, but not otherwise.
Although privatizing all aspects of marriage may well be appealing, such an approach would result, at both state and federal levels, in much greater government interference in family life, higher taxes for married couples, invasions of privacy, difficulties related to child custody, and other negative consequences. In some areas,marriage is a defense against state power, and such a defense should not be lightly discarded. However, marriage should be decoupled from the tax code by adopting a flat tax; the Defense of Marriage Act should be repealed; and Congress should adopt language making it clear that civil and religious marriage are not the same institution, and that the existence of marriage as a legal category is neutral with respect to religion. Wherever possible, marriage penalties and bonuses in the tax code and welfare system should be eliminated.
Renting Christmas Toys
BOSTON (CBS) – When you are a kid on Christmas morning, it’s all about volume. But when you are a parent, cruising the aisles of the toy-store in December, it’s about trying to balance a happy holiday with a reasonable budget.
Paul Reinsmith of Boston has found a great way to have plenty of toys under the tree, and all year, without breaking the bank.
Paul and his wife Pam discovered what they call the ‘Netflix’ of toys.
It’s called Toygaroo, a website that lets parents rent toys for a fraction of what they would cost to buy.
See a related video and read more here.
December 12, 2011
Goldberg: "Opting In, Opting Out: Autonomy in the Community Property States"
This article examines how couples in community property states attempt to opt out of the “sharing” concept that is the hallmark of community property law. The discussion begins with why couples in community property states may want to opt out. Then the discussion explains how couples try to accomplish opting out of the communityproperty system by formal and informal methods, some successful and others not so successful. The methods used before and during marriage and after separation are examined. The main focus is on the California, Louisiana, and Washington community property law.
Call for Symposium Papers
Call for Symposium Papers- Lenahan (Gonzales) v. United States of America: Domesticating International Law. Symposium will be held at American University Washington College of Law, Washington, D.C. on April 17, 2012. Deadline for Submission of Abstracts is January 13, 2012.
The American University Washington College of Law’s Journal of Gender, Social Policy & the Law and Women and the Law Program invite symposium papers analyzing the Inter-American Commission on Human Rights’ recent decision in Lenahan (Gonzales) v. United States of America, Case No. 12.626. While other international cases have situated domestic violence as a human rights violation, Lenahan v. United States is the first individual complaint by a victim of domestic violence to be brought against the United States for a failure to enforce a mandatory protective order. The Inter-American Commission on Human Rights’ decision in favor of Ms. Lenahan confirms a state responsibility, rooted in international law, to protect individuals from so-called private violence. The decision of the Inter-American Commission stands in stark contrast to the U.S. Supreme Court’s ruling on the same facts in the case of Castle Rock v. Gonzales, 545 U.S. 748 (2005), in which the Court held that Ms. Lenahan’s constitutional rights had not been violated because individuals do not have personal entitlement to police enforcement of a protective order.
This Symposium celebrates the 20th anniversary of the influential American University Journal of Gender, Social Policy & the Law. The organizers welcome papers from scholars and practitioners (sorry, no student papers) exploring the multiple dimensions of these cases, including implications both in the United States and abroad. For more information and to submit an abstract online, visit: www.wcl.american.edu/go/lenahan/.
Read the full announcement here: Download Call.
December 11, 2011
Wardle: "The Impacts on Education of Legalizing Same-Sex Marriage and Lessons from Abortion Jurisprudence"
One of the most contentious issues to arise in public policy debates concerning the legalization of same-sex marriage is whether legalizing same-sex marriage has a significant detrimental impact on education, particularly public education. However, legal scholarly and professional consideration of this issue is scarce and one sided. This article reviews the evidence that legalizing same-sex marriage has had a serious, profoundly controversial, and arguably detrimental impact on public education. It then explains why legalization of same-sex marriage must have some impact on educational curriculum. When the meaning of marriage changes it must be reflected in the curriculum that covers that subject. Next, the existing constitutional protections against detrimental impacts upon parents’ rights and family integrity interests of legalizing same-sex marriage are reviewed. The article also presents an analogy from abortion jurisprudence that may provide some protection for parental rights to control the education of their children and protect them against some detrimental effects on education from legalizing same-sex marriage. Finally, the article provides some recommendations for legal remedies and community action that may address these concerns.