Friday, February 15, 2013
Ann Cammett (University of Nevada, Las Vegas, William S. Boyd School of Law) posted her article "Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt," 117 Penn State Law Review 349 (2012), on SSRN. Here is the abstract:
The disenfranchisement of felons has long been challenged
as anti-democratic and disproportionately harmful to communities of color.
Critiques of this practice have led to the gradual liberalization of state laws
that expand voting rights for those who have served their sentences. Despite
these legal developments, ex-felons face an increasingly difficult path to
regaining the franchise. This article argues that, for ex-felons in particular,
criminal justice debt can serve as an insurmountable obstacle to the resumption
of voting rights and broader participation in society. This article uses the
term “carceral debt” to identify criminal justice penalties levied on
prisoners, “user fees” assessed to recoup the operating costs of the justice
system, and debt incurred during incarceration, including mounting child
In recent years, another disturbing voting rights challenge has emerged that has received little attention from scholars. State appellate and federal courts across the country have affirmed the constitutionality of statutes that require ex-felons to satisfy the payment of all carceral debts in order to resume voting privileges. Such a paradigm has a clearly differential impact on the poor: if only those who can pay their debts after a criminal conviction can regain the right to vote, those who cannot will remain perpetually disenfranchised, rendering them “shadow citizens” and raising a host of policy and constitutional questions.
Saturday, February 2, 2013
Marian Robinson’s status as the live-in First Grandmother is an example of a growing trend in the United States - the multigenerational family. The 2010 United States Census Data reflects that the number of households with multiple generations living under one roof has increased by 25% this decade. Mrs. Robinson also reflects another new development in American families: grandparents helping their adult children with caregiving. More than 70% of grandparents are taking care of their grandkids on a regular basis, and 13% are primary caretakers. Many grandparents treat their role as caregiver like a profession, and they sacrifice jobs, residences, money, time, and part of their autonomy in order to ‘retribe’ their family. Often times, these grandparents are not as fortunate as Mrs. Robinson, and their selfless commitment to family not only reduces their current income, but also negatively affects their retirement funds and ability to care for themselves in the future. As the number of citizens over the age of sixty-five increases and the average age of grandparents decreases, these fundamental changes in the family caregiving network pose a threat to a significant portion of our population, particularly women, who make up the majority of grandparent caregivers.
The impact of this family evolution on the older generation has yet to be examined from a legal perspective that goes beyond the traditional spectrum of family law. This article fills a gap in the legal analysis of family law reform in that it focuses on two underdeveloped topics: grandparents who are an integral part of the family, and the impending crisis of a significant aging population. This Article explores how employment, tax, and housing laws discourage intergenerational caregiving. Although research shows that grandparent involvement in their grandchildren’s lives results in multiple positive outcomes, government support for the extended family network lags behind the social framework of today. This Article examines how other modern countries in Europe and Australia have adopted laws that reduce the economic strain of grandparent caregiving. It further argues that the transubstantive nature of family law requires advocacy for grandparents beyond custody and visitation rights. Expanding social welfare for grandparent caregivers will revise the concept of the system of laws that supports family care work and can reform the administration of federal, state, and local regulations governing work and family.
Friday, February 1, 2013
Melissa L. Breger (Albany Law School) has posted "The (In)Visibility of Motherhood in Family Court Proceedings," 36 New York University Review of Law & Social Change, 555 (2012) on SSRN. Here is the abstract:
Issues of bias in Family Court in the context of race and overrepresentation of people of poverty have been extensively explored in academic literature. There is arguably a parallel overrepresentation of women, and particularly mothers, in our Family Courts. I question whether the Family Court would function as it currently does without mothers as its core litigants. Specifically, I delve into the implicit gender biases inherent in societal expectations of mothers as all-knowing, ever-nurturing, and ever-protective of their children – expectations that often ignore the complexities and nuances of motherhood. To illustrate my thesis, I focus on a case that I was involved in over a decade ago, which was subsequently featured in Professor Dorothy Roberts’ book: Shattered Bonds: The Color of the Child Welfare System. Through this narrative, the Article raises critical questions regarding the influence of implicit gender bias and the construct of motherhood in Family Court proceedings. As a result of its predominance, has the gender of Family Court litigants become virtually invisible? How might we identify, confront, and address this (in)visibility in our family justice system?
Thursday, January 31, 2013
Feuer: "How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder"
Albert Feuer has posted his paper entitled "How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder" 45 J. Marshall L. Rev. 635 (2012) on SSRN. Here is the abstract:
This Article discusses the interaction between ERISA
and family law (i.e., domestic relations law and estates law). The Supreme
Court and the US Department of Labor (“DOL”) may improve the practice of both
ERISA and family law by dispelling myths that they have reinforced.
First, the Court incorrectly asserted that the Retirement Equity Act of 1984 (“REACT”) “enhanced protection to the spouse and dependent children in the event of divorce or separation, and in the event of death the surviving spouse.” This assertion has encouraged plan administrators and other courts to find that domestic relations orders (“DROs”) govern an excessively broad class of ERISA pension and life insurance benefits. However, REACT, like ERISA, was a reaction to the inadequacies of state law and prior federal law pertaining to domestic relations and estate law. Thus, it similarly circumscribed the role of state law and increased substantive protections for ERISA participants and beneficiaries.
Second, the Court added a gloss to ERISA in non-family law contexts that emphasizes the importance of limiting the cost burdens imposed on employers by ERISA, which, if excessive, would discourage employers from establishing and maintaining employee benefit plans. This gloss has encouraged other courts to lose sight of the leitmotif of ERISA, protecting plan benefits of participants and beneficiaries. Thus, courts have wrongfully permitted individuals to use superseded (state family law or federal common law) ownership claims to obtain benefit entitlements from the recipients of those entitlements rather than the plans. Such holdings violate Supreme Court decisions extending over more than a hundred years, which consistently protected ERISA entitlements and other federal entitlements, before and after their distribution.
The DOL has created issues by both its actions and inactions. First, the DOL incorrectly asserted that the ERISA benefit claim provisions should not govern plan reviews of DRO for compliance with the pertinent ERISA requirements, the qualified domestic relations order (“QDRO”) requirements, but has failed to present an alternative set of review provisions for plans to follow. This has created unnecessary issues concerning the roles of plan administrators, participants, their families, and courts in such reviews Second, the DOL has provided only nonbinding, informal guidance to the general public rather than extensive DOL regulations with respect the QDRO requirements. This has created unnecessary issues for persons seeking to prepare a DRO that complies with the pertinent ERISA requirements, and for plan administrators responding to such requests.
Wednesday, January 30, 2013
Oldham: "Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?"
J. Thomas Oldham posted his article "Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?" on SSRN. Here is the abstract:
This article summarizes the provisions of the Uniform Premarital and Marital Agreement Act, which was promulgated by the Uniform Law Commission in the summer of 2012. It compares these provisions to the Uniform Premarital Agreement Act, the rules currently applicable in states that did not adopt the UPAA, and the approach applied in other countries to premarital agreements contemplating divorce. The article summarizes the new requirement in the UPMAA that, to be enforceable, each party must have had “access to independent counsel,” and discusses how courts might construe such a provision.
Tuesday, January 29, 2013
A new paper, written by Margaret A. Knight and DeLawnia Comer-HaGans, aims to summarize literature review findings about barriers employers face with providing Domestic Partner Benefits and discuss some advantages of providing some benefits. Exploring the DPB issue provides insights into “sexual orientation, marital status, legal definitions and requirements, and benefit equity” issues. Download Domestic Partner Benefits.
Wednesday, January 9, 2013
Professor Nancy E. Dowd has recently published “Fatherhood and Equality? Reconfiguring Masculinities,” which was a Donohue Lecture at Suffolk University Law School, and is in 45 Suffolk University Law Review 1047 (2012). In this article, Professor Dowd sets out the asymmetric pattern of men’s caretaking as compared to women’s caretaking, and raises the issue of why greater equality has not been achieved in care as women’s participation in the workforce has increased. Professor Dowd argues that not only is this linked to the lack of institutional and structural supports for parenthood, which leads to gendered outcomes in who does care, but in addition, and perhaps most importantly, the barrier to care is cultural, linked to masculinities norms. Professor Dowd sets out the barriers to care linked to masculinities, and suggests a further analysis linked to vulnerability and its connection to caregiving. Changes in masculinities, therefore, are critical to changing the pattern of men’s caretaking, and Professor Dowd sets out ways that this might be accomplished.
Sunday, December 2, 2012
Courtney G. Joslin (University of California, Davis - School of Law) has posted "Marriage, Biology, and Federal Benefits" (forthcoming Iowa Law Review). Here is the abstract:
This Article approaches the topic of same-sex marriage from a novel perspective by scrutinizing the historical accuracy of primary defense proffered by same-sex marriage opponents – “responsible procreation.” In the context of challenges to Section 3 of DOMA, responsible procreation posits that the federal government’s historic purpose in extending marital benefits is to single out and specially support families with biologically-related children. Because same-sex couples cannot fulfill this long-standing purpose, it is permissible to deny them all federal marital rights and obligations. While advocates disagree about whether and to what extent DOMA furthers this alleged federal interest, to date, all sides have accepted this historical account.
This Article is the first to interrogate the accuracy of this account. To do so, the Article examines two of the largest and most important federal benefits programs – Social Security benefits and benefits for active and retired members of the U.S. military. This analysis demonstrates that Congress has not and does not condition the receipt of federal family-based benefits on biological parent-child relationships. To the contrary, Congress long has implicitly and explicitly extended such benefits to families with children known to be biologically unrelated to one or both of their parents. This Article thus reveals that responsible procreation is based on myth, not history and tradition.
Sunday, November 25, 2012
The story of equal protection’s demise is a familiar one. It has been decades since any new group has been afforded heightened scrutiny. Even for established protected groups, retrenchment in applicable standards has devitalized meaningful equal protection coverage. As a result, scholars such as Kenji Yoshino have contended that we are at “the end of equality doctrine as we have known it” — that we are, in effect, in a post–equal protection era. In this new era, there are minimal opportunities for securing protections under the Equal Protection Clause, and the liberty protections of the Due Process Clause have superseded equality as the primary engine of constitutional change. Yoshino names this new era the “new equal protection” and suggests that subordinated groups focus their efforts on liberty — rather than equality — in seeking civil rights protections.
This Essay suggests that reports of equal protection’s demise — and of liberty’s ascendancy — may be premature. Using the LGB marriage rights movement as a focal point — and in particular the six cases pending certiorari review at the Supreme Court this term — this Essay explores the possibility that full equal protection inclusion for new groups remains plausible, and that, indeed, the LGB rights movement may be on the cusp of securing such inclusion. The Essay discusses the implications of this possibility for Yoshino’s framework and, in particular, the strategic risks that may attach to relying on liberty-based arguments for a group that is on the cusp of achieving formal equality.
Tuesday, November 6, 2012
From Professor Faisal Kutty of the Valparaiso University School of Law writing for the Jurist:
Conventional wisdom — among both Muslims and non-Muslims — holds that adoption, as practiced in much of the Western world, is alien and prohibited by dictates of Islam. This, of course, ignores the sophistication and nuances of both Western law and Islamic dictates. Indeed, adoption rights activists have struggled to find ways around the difficulties this simple binary causes for some children and prospective adoptive parents. With the growth of the Muslim population in the West, there is now an increased urgency to tackle this issue as some Muslims wish to adopt children from jurisdictions governed by Islamic law.
Four recent developments in the context of Islam and adoptions, including the European Court of Human Rights (ECHR) decision of October 4, 2012 (though not yet final), in Harroudj v. France, provide for some optimism that we may be at the cusp of a sea change in this area.
Read more here.
A new article, by Richard DeMichele, Jr., “Domestic Violence Trials: Winning the Case and Minimizing the Impact on Children,” in American Journal of Family Law, on September 1, 2012, advises advocates on how to win a domestic violence case. Tips include treating a domestic violence bench trial like it was a jury trial and using demonstrative evidence in such trials. Further tips are provided for both those representing the alleged abuser and the alleged victim. Download Domestic Violence Trials.
Tuesday, October 23, 2012
A recent conference at University of Buffalo Law School paid "tribute to two landmark anniversaries in the fight against domestic violence: the 20th anniversary of the Law School's Women, Children and Social Justice Clinic, and the 50th anniversary of New York State Family Court." Read about it here.
Monday, September 24, 2012
Gossett: "If Charity Begins at Home, Why Do We Go Searching Abroad? A Call to Sunset the Portion of the Federal Adoption Tax Credit that Subsidizes International Adoptions"
DeLeith Duke Gossett (Texas Tech University School of Law) has recently posted her article If Charity Begins at Home, Why Do We Go Searching Abroad? A Call to Sunset the Portion of the Federal Adoption Tax Credit that Subsidizes International Adoptions, Lewis & Clark Law Review (forthcoming) on SSRN. Here is the abstract:
Unlike the media frenzy that surrounded Angelina Jolie’s and Madonna’s international adoptions, noted director Steven Spielberg’s adoption of two African American children from the Los Angeles foster care system received very little fanfare. Spielberg went on to establish the Children’s Action Network, a non-profit organization dedicated to finding permanent homes for the thousands of children stuck “in the system” of foster care. He documented their stories and their hopes of someday being adopted. For many, however, adoption is a dream yet to be realized.
Currently, nearly half a million children reside in United States foster care, some “aging out” without ever having been adopted. Beginning in the 1980s and carrying through the 1990s, Congress passed a series of legislative measures aimed at helping those children in the system. As incentive for placing children in permanent homes, and as part of the Adoption Promotion and Stability Act of 1996, a tax credit was made available for those who adopted children. Since that time, the federal adoption tax credit has risen to as high as $13,360 per child, some years as refundable and other years as non-refundable.
On June 28, 2012, in a controversial 5-4 opinion, the United States Supreme Court upheld the constitutionality of the Patient Protection and Affordable Care Act healthcare legislation championed by President Obama. A little known part of that legislation was the extension, expansion, and enhancement of the adoption tax credit provided by the federal government. Even though the act withstood judicial scrutiny, the high numbers are scheduled to sunset in December 2012, and revert to levels of $6,000. Petitioners are already lobbying Congress to renew it at the increased level for 2013. In fact, legislation was introduced earlier this year that would expand the credit and make it permanently refundable.
In recent years, international adoption has become the new social trend, fueled by celebrity and evangelical circles alike (although arguably for different reasons), even though a large number of children remain in the foster care system. Children from other countries are now being imported to form the new American families, and those who adopt internationally, whether they receive $13,360, or even $6,000, are receiving the same tax benefits as those who adopt domestically. And while this may add to the diversity of our culture, and provide those adopting with a sense of fulfilling a higher purpose, the very ones who were the intended beneficiaries of the legislation, those “lost in the system,” remain there and are not being helped as the statute originally intended. Because the tax credit should be used to reclaim children from the foster care system — not to subsidize international adoptions — it is time to let the international portion of the tax credit sunset and focus taxpayer resources on those whom the tax credit originally sought to help.
Wednesday, September 19, 2012
Call for Presentations: The National Center for Family Law at the University of Richmond School of Law
Call for Presentations:
The National Center for Family Law at the University of Richmond School of Law seeks presentation proposals relating to the role of cognitive bias and/or emotion in the practice and the evolution of family law, to be included in the Law School’s biennial State of the Family Symposium scheduled for September 15 – 16, 2013. The 2013 Symposium theme is “The Divorcing Brain,” and, in addition to considering the role of cognitive bias and emotion in family law, will address topics including neuroscience of decision-making and the impact of cognitive bias on the lawyer-client relationship. We anticipate presentations will be between 20 to 50 minutes in length, depending on the topic
Email an abstract or summary of the proposed presentation proposal as a Word or PDF document by 12/15/2012 to Professor Meredith Johnson Harbach, [email protected]. Applicants will be notified by January 31 whether their proposals have been accepted.
The Symposium will take place on the campus of the University of Richmond, Richmond, VA, beginning Sunday, September 15, 2013 at 1:00 pm and concluding at 5:00 pm on Monday, September 16, 2012, with solicited presentations on Monday. Dinner on Sunday and breakfast and lunch on Monday are included.
Wednesday, September 12, 2012
The Journal of Gender, Race & Justice is holding its annual symposium on March 7-8, 2012. Titled Modern Families: Changing Families, Challenging Laws, the symposium focuses on three specific areas within family law: families of racial minorities, LGBT families, and family interactions with the criminal justice system. The Journal would like to invite legal authors of all perspectives to submit proposals for articles for the symposium to fill Volume 17 of our publication. Articles or proposal submissions, along with a curriculum vitae, should be sent to Iain Johnson at [email protected]. The submission deadline is October 30, 2012.
Thursday, August 30, 2012
Roy Andrew Partain (Soongsil College of Law) has posted Comparative Family Law, Korean Family Law, and the Missing Definitions of Family,13 HongIk University Journal of Law (June 2012) on SSRN. Here is the abstract:
This article uses comparative law to analyze the concept of ‘family’. In particular, the research focuses on how family is defined when a family group assembles outside of a nuclear marital family. The article discovers that ‘family’ is rarely defined outside of the concept of marriage in modern legal codes. However, eight characteristics and identifying behaviors of families can be found in the analysis of family law. These eight concepts are used to rebuild a potential definition of family that does not require the act of marriage.
This article proposes that family law should include a parallel definition for families that do not meet current marital definitions of family. This article does not advocate changing current marriage codes; it merely suggests adding room for non-nuclear families in family law. These other, non-nuclear families deserve legal support and recognition. It is time for family law to recognize that all families need legal protection and legal affirmation as families.
The reason to focus on family outside of the concept of marriage is that many family-type groups today fulfill the role of family life without legal recognition. These families serve broader societal goals of raising children, of providing for the elderly, and of sharing the burdens and responsibilities of life in a small group setting. Family law should extend the legal notion of family to include a wider array of options for non-nuclear families.
These types of families are all ‘normal’ families in some sense of the idea of family, but they may simply lack two central ingredients: marriage and a nuclear spousal pair. These types of families should have as much legal right to formally exist as families based in nuclear marriage and sexually-based procreation. Specifically, there should be a legal entity called a “family” that serves a small group of individuals living in some form of interdependency under a common roof. The basic argument is to provide a parallel option for these types of alternative families alongside the traditional marriage-based family option.
Monday, August 27, 2012
Kim H. Pearson (Gonzaga University - School of Law) has posted Displaced Mothers, Absent and Unnatural Fathers: LGBT Transracial Adoption, 19 Michigan Journal of Gender & Law 149 (2012). Here is the abstract:
This paper interrogates race contestation and sexual orientation transmission fears, showing that race and sexual orientation appear to have developed in a parallel fashion in court decisions and advocacy rhetoric. At the point of intersection in LGBT transracial adoption, race and orientation appear to be in competition, as though Black and gay cannot co-exist. Historically, courts have devalued racial identity transmission from parents of color and expressed fear of LGBT child outcomes. Over time, courts have moved towards seemingly neutral standards; however, these standards cover homophobia and racism.
Media and advocacy discourse pitting Black against gay has appeared in the context of Proposition 8 and Don’t Ask, Don’t Tell. LGBT transracial adoption appears to be another iteration of Black versus gay competition for the right to parent children of color. The staging of Black versus gay discourse in the context of transracial LGBT adoption reinforces stereotypes that gay fathers are male, white, and privileged, that Black fathers are absent, hyper-masculine and heterosexual, and that Black children are unwanted, damaged and dangerous. Reliance on these pernicious stereotypes creates structural costs such as obscuring the existence of LGBT families of color, concealing the history of lesbian mothering, displacing Black women as mothers, characterizing Black boys as damaged and dangerous, fixing gay men as parents of last resort, failing to acknowledge the social forces that remove Black men from the home, preventing coalition building between various groups with similar interests, and limiting the resources available to LGBT transracial families.
Read more here.
Monday, August 20, 2012
I. Glenn Cohen (Harvard Law) & Daniel L. Chen (Duke Law) have recently posted their article "Trading-Off Reproductive Technology and Adoption: A Response to Appleton and Pollak," Minnesota Law Review on SSRN. Here is the abstract:
As part of the Minnesota Law Review's Headnote online forum, we respond in this paper to Profs Susan Frelich Appleton & Robert A. Pollak, Exploring the Connections Between Adoption and IVF: Twibling Analyses, 95 MINN. L. REV. HEADNOTES 60, 66–69 (2011), which is itself a response to our article, Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, 95 MINN. L. REV. 485 (2010), http://ssrn.com/abstract=1664501.
We view Professors Appleton and Professor Pollak’s response to our article as both complimentary and complementary. First, they are extremely generous with their praise for our project, which is particularly gratifying given how important their own work has been in the field. Second, and perhaps more importantly, they suggest a number of new tangents and ideas prompted by our project. We first summarize those contributions and how we think they fit with our article. We then very briefly discuss a few instances where we might characterize what we have said differently than they do.
Monday, August 6, 2012
The University of Baltimore School of Law’s Center on Applied Feminism seeks submissions for its Sixth Annual Feminist Legal Theory Conference. This year’s theme is “Applied Feminism and Families.” The conference will be held on March 7 and 8, 2013. For more information about the conference, please visit law.ubalt.edu/caf.
This conference seeks to explore how feminist legal theory affects families in the United States and abroad. We are interested in including both family law experts and experts who consider issues facing families from other legal perspectives. Papers might explore the following questions: What have been the accomplishments or shortcomings of feminist legal theory for families? How might feminist legal theory respond to the challenges facing families? What sort of support should society and law provide to families? Does feminist legal theory support state interventions into family life? In what circumstances? How do law and feminist legal theory conceptualize the roles of family members, including mothers, fathers, caretakers, children, and others? How does feminist legal theory help us understand changes in the institution of marriage and family structure? How do the needs of families vary across cultural, economic, religious, and other differences? Are theories of essentialism and intersectionality necessary or helpful in shaping laws that impact families? In what areas outside of family law could or should feminist legal theory be applied to assist families?
This conference will attempt to address these and other questions from the perspectives of activists, practitioners, and academics. The conference will provide an opportunity for participants and audience members to exchange ideas about the current state of feminist legal theories. We hope to deepen our understandings of how feminist legal theory relates to families and to move new insights into practice. In addition, the conference is designed to provide presenters with the opportunity to gain feedback on their papers.
The conference will begin the afternoon of Thursday, March 7, 2013, with a workshop for conference participants. This workshop will continue the annual tradition of involving all attendees as participants in an interactive discussion and reflection. On Friday March 8, 2013, the conference will continue with a day of presentations by legal academics, practitioners and activists regarding current scholarship and/or legal work that explores the application of feminist legal theory to issues involving families. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Pulitzer Prize winning journalist Sheryl WuDunn, and Senator Barbara Mikulski.
To submit a paper proposal, please submit an abstract by 5 p.m. on October 26, 2012, to Professor Michele Gilman at [email protected] In the subject or "re" line of your submission, you must type: CAF conference submission. It is essential that your abstract contain your full contact information, including an email, phone number, and mailing address where you can be reached. Abstracts should be no longer than one page. Practitioners’ and activists’ papers need not follow a strictly academic format, but all paper proposals should address the conference theme. We will notify presenters of selected papers in mid-November. We anticipate being able to have twelve paper presenters during the conference on Friday, March 8, 2013. All working drafts of papers will be due no later than February, 15, 2013. All abstracts and drafts will be posted on the Center on Applied Feminism’s conference website to be shared with other participants and attendees.
In addition, the University of Baltimore Law Review has agreed to offer publication to a few of the selected papers presented at the conference for an issue dedicated to the conference proceedings. If you are interested in submitting your abstract for consideration by the UB Law Review, please indicate as such on your abstract submission. To be eligible for publication in the UB Law Review, submissions must not be published elsewhere. Typically, the UB Law Review publishes pieces ranging from 25 to 45 pages in length, using 12 point times new roman font and one inch margins. One volume of the Law Review is dedicated to papers from this annual symposium.
We look forward to your submissions. If you have further questions, please contact Prof. Michele Gilman at [email protected]