Monday, November 17, 2014
Here is the Balkinization symposium on Professor Clare Huntington's book Failure to Flourish, and the collected posts (with contributions from Professors Elizabeth Scott, Solangel Maldonado, Robert Emery, Robin Lenhardt, and Linda McClain).
Tuesday, July 29, 2014
From the New York Times:
Two professors of family law, June Carbone and Naomi Cahn, have written a crisp and cogent account — rich with detail and utterly free of legalese — of America’s failure to invest in its children.
Their book, “Marriage Markets,” asserts that this failure lies not only in public policy but also in the private lives of Americans. Marriage, the time-honored way of fostering the interests of children, no longer works for many Americans. In an economy ruptured by increasing inequality, millions of men and women are deciding that marriage imposes obligations that they cannot meet. Nearly half of all marriages fail; more than 40 percent of American children are born to single mothers.
This is not a romantic book. Professor Carbone, who teaches at the University of Minnesota, and Professor Cahn, of George Washington University, describe picking a marriage partner as a high-stakes negotiation to find the most promising person, both emotionally and financially, for a lifelong commitment. It is a contract that comes with rights and responsibilities defined and enforced by law.
Read more here.
Tuesday, July 22, 2014
From Jill Elaine Hasday (University of Minnesota), writing for Slate:
Too often, the law permits sibling relationships to be severed by an adoption or a parent’s divorce or death. Sometimes, siblings are left with no way to stay in touch with each other. When siblings placed in different households have had the chance to write or speak publicly about their experiences, they have emphasized the pain, sadness, and complete shock that separation can inflict.
The tie between siblings is often the longest lasting relationship that a person ever experiences. Social science research makes clear that strong bonds between brothers and sisters can develop very early in childhood. Many children spend more time with their siblings than with anyone else, and siblings who grow up together accumulate a store of shared memories that can shape each sibling for life. Children with absent, dysfunctional, or warring parents often forge especially intense bonds with each other that provide solace, nurturing, and secure emotional attachments.
But as I discuss in my new book, Family Law Reimagined, the legal system has long acted as if marriage and parenthood are the only two family relationships that matter. In recent years, the law has expanded its focus slightly by directing more attention toward unmarried couples. Yet courts and legislatures still do remarkably little to protect sibling ties.
Read more here.
Thursday, July 3, 2014
Faisal Kutty (Valparaiso University Law School) has posted "Islamic Law and Adoptions," forthcoming in Robert L. Ballard et al., The Intercountry Adoption Debate: Dialogues Across Disciplines (Newcastle upon Tyne, UK: Cambridge Scholars Publishing, 2014). Here is the abstract:
Throughout history, adoption has held a contentious and ambiguous role in the social imagination of many cultures. Adoption is a complex social, legal, and economic phenomenon that has existed in one form or another in most societies since ancient history. Religion has served to both advance and restrict adoption and similar childcare arrangements. Some religions have encouraged adoptions, others have initially been interpreted to restrict them, and yet others continue to restrict or advocate alternative arrangements.
The belief that closed adoption, as practiced in the West, is the only acceptable form of permanent childcare is a significant obstacle to its acceptance among many Muslims. Adoption rights activists—and prospective adopters—have struggled to find ways around the difficulties this simple binary view causes for the millions of children around the world who could benefit from a loving home. With increasing numbers of abandoned and orphaned children and a growing number of hurdles, there is now an added urgency to tackle this issue. It is beyond the scope of this chapter to grapple with all of the nuances and issues raised by adoption in Islam. The goal of this chapter is more modest. It is to contribute to a better understanding of Islamic views on adoptions, provide insights into some of the tensions and points of convergence, lay groundwork to help in bridging the gap, and fill the existing void in properly caring for orphans, abandoned children, and children of unknown parentage consistent with contemporary notions of child welfare and the spirit of the Sharia. Part I provides a basic background on Islamic law, its sources, principles and methodology for development and evolution. Part II sets out a description of adoption and alternatives under classical Islamic law as understood and accepted by the orthodox Sunni community. Part III explores and highlights the areas of tension and convergence with modern western conceptions of adoption and child welfare. The chapter then concludes with some parting thoughts.
The chapter demonstrates that there is sufficient basis in Islamic jurisprudence to argue for qualified support of international adoptions. It is undeniable that taking care of orphans and foundlings is a religious obligation. Arguably one of the best ways to take care of these children is to place them in loving homes, provided that a child’s lineage is not intentionally negated or concealed. A reformed model of Islamic adoptions will enable Muslims to fulfill this religious obligation while ensuring that the most vulnerable do not fall through technical cracks and will not be negatively impacted by formal rules that no longer serve their intended purposes.
Read more here.
Monday, June 16, 2014
From Professor Clare Huntington (Fordham Law), writing for the New York Times:
The fathers’ rights movement contends that the treatment of fathers and mothers is unequal under the law, but the real difference is between married and unmarried fathers.
My research shows that family law makes it much harder for unmarried fathers to sustain a relationship with their children. In most states, if a child is born to married parents, the mother’s husband is automatically established as the legal father. By contrast, unmarried fathers have to take additional steps to establish parentage.
Read more here.
Saturday, June 7, 2014
Clare Huntington (Fordham Law School) has published a new book, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press 2014). Here is Oxford’s description:
Exploring the connection between families and inequality, Failure to Flourish: How Law Undermines Family Relationships argues that the legal regulation of families stands fundamentally at odds with the needs of families. Strong, stable, positive relationships are essential for both individuals and society to flourish, but from transportation policy to the criminal justice system, and from divorce rules to the child welfare system, the legal system makes it harder for parents to provide children with these kinds of relationships, exacerbating the growing inequality in America.
Failure to Flourish contends that we must re-orient the legal system to help families avoid crises and, when conflicts arise, intervene in a manner that heals relationships. To understand how wrong our family law system has gone and what we need to repair it, Failure to Flourish takes us from ancient Greece to cutting-edge psychological research, and from the chaotic corridors of local family courts to a quiet revolution under way in how services are provided to families in need. Incorporating the latest insights of positive psychology and social science research, the book sets forth a new, more emotionally intelligent vision for a legal system that not only resolves conflict but actively encourages the healthy relationships that are at the core of a stable society.
Tuesday, June 3, 2014
Monday, March 10, 2014
Anthony C. Infanti (University of Pittsburgh - School of Law) has posted "Big (Gay) Love: Has the IRS Legalized Polygamy?" North Carolina Law Review Addendum, 2014, Forthcoming, on SSRN. Here is the abstract:
Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which struck down section three of the federal Defense of Marriage Act (DOMA).
In exploring that possibility, this essay continues my work analyzing the shortcomings of the IRS’s implementation of the Windsor decision. The Secretary of the Treasury promised that IRS guidance would provide same-sex couples with “certainty and clear, coherent tax-filing guidance.” To the contrary, I have explained that the IRS’s guidance provides no more than the same veneer of clarity that DOMA did, because it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences. In this essay, I extend that analysis by explaining how ambiguity in the IRS’s guidance may also have unintentionally opened the door to recognizing plural marriage for federal tax purposes.
Wednesday, February 26, 2014
From Derek W. Black posted his article "The Constitutional Limit of Zero Tolerance in Schools" on SSRN. Here is the abstract:
With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application of zero tolerance policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect. Although the constitution confers significant discretion on schools to regulate student behavior, that discretion does not include the authority to entirely strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student’s good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render hearings meaningless. Zero tolerance policies breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in related areas of juvenile justice. To comply with due process, the state must consider students’ intent and culpability, along with the potential harm posed by the behavior at issue. Contrary to conventional wisdom, courts can strike down zero tolerance policies that fail to take these steps without re-crafting constitutional doctrine.
Monday, February 24, 2014
Wednesday, January 29, 2014
Yuvraj Joshi has posted his article The Trouble with Inclusion, Virginia Journal of Social Policy and the Law, Vol. 21, No. 2, 2014, on SSRN. Here is the abstract:
Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.
Wednesday, October 23, 2013
LaVigne & Van Rybroek: "'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships"
Michele LaVigne (University of Wisconsin Law School) & Gregory Van Rybroek (Mendota Mental Health Institute) have posted on SSRN "'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships," 17 CUNY Law Review (2014). Here is the abstract:
Language impairments -- deficits in language and the ability to use it -- occur at starkly elevated rates among adolescents and adults charged with and convicted of crimes. These impairments have serious ramifications for the quality of justice. In this article, we focus specifically on the effects of a client's language impairment on the attorney-client relationship, the constitutional realm that suffers most when a client lacks essential communication skills. The effects of language impairment can be seen in a client's ability to work with a lawyer in the first place, tell a story, comprehend legal information, and make a rational and informed decision. This article shows how these effects play themselves out within the attorney-client relationship, and the impact on the lawyer's ability to meet her constitutional and ethical obligations. We also propose concrete steps for improving the quality of communication within the attorney-client relationship. While attorneys will obviously shoulder much of the responsibility, judges and prosecutors are not exempt. A client's poor communication skills are not simply be "the lawyer's problem," but a matter of great concern for all stakeholders in the justice system.
Thursday, October 10, 2013
Daniel L. Hatcher ( University of Baltimore - School of Law) has posted "Forgotten Fathers," 93 Boston University Law Review 897 (2013). Here is the abstract:
Poor fathers like John are largely forgotten, written off as a subset of the unworthy poor. These fathers struggle with poverty – often with near hopelessness – within multiple systems in which they are either entangled or overlooked, such as child-support and welfare programs, family courts, the criminal justice system, housing programs, and the healthcare, education, and foster-care systems. For these impoverished fathers, the “end of men” is often not simply a question for purposes of discussion but a fact that is all too real. In the instances in which poor fathers are not forgotten, they are targeted as causes of poverty rather than as possible victims themselves – or more accurately they fall somewhere along the false dichotomy between pure blame and pure sympathy. The poor fathers are lumped together in monolithic descriptions that become constants in equations attempting to understand and solve societal ills.
This Essay seeks to step back, to de-simplify the incorrect math and begin drawing the interconnections between the legal and policy systems impacting low-income fathers, including the linkages to impoverished women and families. The contexts of race, gender, and class are engaged within the numerous systems and legal structures that impoverished fathers encounter. These systems and their impact must each be considered individually while simultaneously understanding the broader view of the system interactions. The appropriate discussion point for fathers like John is not found in the narrative of the “end of men” and the purported competition between men and women as struggling for the mantel of the dominant sex. Nor is the issue best illustrated by a Super Bowl commercial for a Dodge Charger muscle car “vrooming toward the camera punctuated by bold all caps: MAN’S LAST STAND,” with the lingering question of who should be “steering the beast.” John does not even have a driver’s license. Rather, the discussion for impoverished fathers should be directed toward whether there is an opportunity to turn back from their gradual acquiescence to failure, and whether at-risk boys can veer away from a seemingly pre- determined path.
Friday, October 4, 2013
Beth A. Burkstrand-Reid (University of Nebraska at Lincoln - College of Law) recently posted "From Sex for Pleasure to Sex for Parenthood: How the Law Manufactures Mothers," Hastings Law Journal (2013). Here is the abstract:
As soon as sperm enter a woman, so do law and politics, or so the decades-long disputes surrounding abortion suggest. Now, however, renewed debates surrounding contraceptives show legal and political interference with women’s sexual and reproductive autonomy may actually precede the sperm. This Article argues that, increasingly, women even thinking about having sex are defined socially and legally as “mothers.” Via this broad definition of who is a “mother," the State extends its reach into women’s decision-making throughout their reproductive lifetime.
This Article argues that the State simultaneously devalues women’s choices to have sex for pleasure, which this Article calls desexualization, and uses medical rituals associated with motherhood, which this Article calls ritualization, to persuade women to accept the role of mother. Desexualization and ritualization signal the State’s attempt to influence women’s sexual and reproductive decision-making not only in the context of abortion but also in the areas of contraception, pregnancy, and childbirth.
Wednesday, October 2, 2013
February 7-8, 2014
Fri. 8:30 a.m. - 5:30 p.m. | Sat., 8:30 a.m. - 4 p.m.
Hosted by University of Miami School of Law, University of Miami School of Law Race & Social Justice Law Review, Miami Worker's Center Sisterhood of Survivors, and Center on Applied Feminism-University of Baltimore School of Law.
Register<http://www.law.miami.edu/academics/converge/index.php?op=0> | Call for Papers & Presentations<http://www.law.miami.edu/academics/converge/presentations.php?op=4>
For more than 40 years, gender violence has been the focus of U.S. feminist activism.
Where are we headed now?
The CONVERGE! conference will bring together survivors, activists, lawyers, service providers, and academics to reconsider the dominant U.S. responses to gender violence, to build capacity for political mobilization and reform, to share innovative approaches to gender violence, and to promote cross-fertilization and collaboration. Join the CONVERGE! conversation to build a transformative political agenda to refocus U.S. priorities in ways that better address the intersecting inequalities that create and maintain gender violence.
Tuesday, October 1, 2013
Elizabeth Chika Tippett has posted "Gatekeepers of Last Resort: The Role of Employers in Mitigating Child Abuse" on SSRN. Here is the abstract:
This article examines the fraught but potentially useful role that employers could play in the prevention and mitigation of child abuse in the workplace. Common law tort liability already places a gatekeeping duty on employers to exclude employees from the workplace when they pose a threat to third parties. In theory, this allows employers to fill a problematic regulatory gap that tends to arise when an employee is accused of abuse but where the police and child welfare authorities decline to take official action. In practice, however, employers face considerable countervailing liability to the employee accused of abuse, which tends to reward inaction or insufficient action to address the particular threat posed by the employee.
Using the Penn State scandal as a reference point, this article provides an overview of existing law regarding child abuse in the workplace and their limitations. Drawing from dozens of cases and labor arbitrations it then provides a detailed examination of the types of liabilities employers face to employees accused of abuse. The article concludes by discussing legislative reforms that would reduce employer liability to those accused of abuse, enabling employers to better serve as gatekeepers of last resort where law enforcement mechanisms fail.
Tuesday, September 3, 2013
The Feminist Legal Theory CRN's Call for Papers for the 2014 Law and Society Association Annual Meeting available for Download Here.
Law & Society, the Feminist Legal Theory CRN seeks to bring together
scholars across a range of fields who are interested
in feminist legal theory. There is no pre-set theme to which papers must
would be especially happy to see proposals that fit in with the LSA conference
theme, which is the role of law and legal institutions in sustaining, creating,
interrogating, and ameliorating inequalities.
We welcome proposals that would permit us to collaborate with other
CRNs, such as the Critical Research on Race and the Law CRN or the Gender,
Sexuality and the Law CRN. Also, because the LSA meeting attracts scholars from
other disciplines, we welcome multidisciplinary proposals.
Proposals are due September 18th, with specific submissions details included in the above document.
Friday, May 17, 2013
Elizabeth N. Jones (Western State College of Law) has posted her article Judges, Family Law, Cultural Sociology of Divorce: An Encyclopedia, pp. 626-629, Robert E. Emery, ed., 2013, on SSRN. Here is the abstract:
This is a chapter in an encyclopedia put forth by Sage Publications. I am the sole author of this particular chapter; there are several hundred contributing authors to the encyclopedia as a whole. It is a multi-disciplinary work which details subjects related to divorce: legal, social, anthropological, religious, psychological, and historical.
In this chapter, I describe the role of the family law judge in divorce proceedings.
The role of the family law judge is a varied one. At its core, the position is one of authority. The lawyers, parties, and court staff all give the judge great deference in the courtroom, referring to the judge as “your honor.” This is further affirmed in the judge’s raised bench overlooking the entire courtroom, in the judge’s traditional gavel used to silence the courtroom and maintain order, and in the judge’s distinct formal clothing, usually consisting of long judicial robes. These formalities are designed to instill respect for the legal institution as a whole.
Thursday, May 9, 2013
Govind Persad (University of Pennsylvania) posted "What Marriage Law Can Learn from Citizenship Law (and Vice Versa)," 22 Law & Sexuality (2013), on SSRN. Here is the abstract:
Citizenship and marriage are legal statuses that generate numerous privileges and responsibilities. Legal doctrine and argument have analogized these statuses in passing: consider, for example, Ted Olson’s statement in the Hollingsworth v. Perry oral argument that denying the label “marriage” to gay unions “is like you were to say you can vote, you can travel, but you may not be a citizen.” However, the parallel between citizenship and marriage has rarely been investigated in depth. This paper investigates the marriage-citizenship parallel with a particular focus on three questions prompted by recent developments in law and policy:
1) Should we provide second-best statuses? Some couples — in particular gay and lesbian couples—have been offered permanent statuses, like civil unions, that bear legal privileges but fall short of full marriage equality. In contrast, similar differentiations within citizenship are generally resisted. The history of citizenship may presage the increasing unacceptability of differentiations within status in the gay marriage context. Meanwhile, the history of marriage equality efforts may help present-day citizenship advocates choose legal strategies.
2) Should statuses be a gateway to rights? Some early gay rights advocates unsuccessfully argued that advocates should challenge the primacy of marriage, rather than seek access to the institution. Advocates attempting to expand the rights of current noncitizens face similar choices: should they seek to give current noncitizens greater access to citizenship, or challenge the reservation of important rights to citizens?
3) Can status relationships be plural? Many critics of dual and multiple citizenship argued that allegiance to multiple states was immoral, unadministrable, or both. More recently, polygamous marriage has become a topic of legal and political discourse, first as a foil in anti-gay marriage arguments and later as a political possibility in its own right. I will consider whether polygamous marriage advocates can profitably draw on arguments for multiple citizenship, and how multiple-citizenship advocates should responsibly respond to the analogy with polygamy.
Tuesday, April 30, 2013
Marcia Anne Yablon-Zug (University of South Carolina School of Law) has posted her article "Adoptive Couple v. Baby Girl: Two and a Half Ways to Destroy Indian Law" (forthcoming Michigan Law Review) on SSRN. Here is the abstract:
On April 16th, the US Supreme court will hear arguments in the case Adoptive Couple v. Baby Girl. This case involves an Indian child whose attempted adoption by a non-Indian couple in South Carolina violated the provisions of the Indian Child Welfare Act (ICWA). Because of this violation, the family court ordered her return to her biological father. The case has received extensive media attention and has resulted in the vilification of ICWA. Nevertheless, the Court’s decision to hear the case was surprising. The issues in the case are straightforward and the lower courts’ decisions were clearly correct. Consequently, the Supreme Court’s interest likely indicates that this case will be used to address broader issues than those delineated in the questions presented. This essay explores the legal issues raised by the Baby Girl case and examine the ways in which the Court is likely to use this decision to redefine current understanding of ICWA and maybe all of Indian law.