Family Law Prof Blog

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

Sunday, November 25, 2012

Eyer: "Marriage This Term: On Liberty and the 'New Equal Protection'"

Katie R. Eyer (Rutgers School of Law -- Camden) has posted "Marriage This Term: On Liberty and the 'New Equal Protection'", 60 UCLA L. Rev. Disc. 2 (2012).  Here is the abstract:

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for securing protections under the Equal Protection Clause, and the liberty protections of the Due Process Clause have superseded equality as the primary engine of constitutional change.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.


November 25, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 6, 2012

Adoption & Islamic Law

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.


November 6, 2012 in Scholarship, Family Law | Permalink | Comments (3) | TrackBack (0)

DeMichele: "Domestic Violence Trials: Winning the Case and Minimizing the Impact on Children"

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.


November 6, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 23, 2012

Conference at Buffalo

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.


October 23, 2012 in Scholarship, Family Law | Permalink | Comments (4) | TrackBack (0)

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.


September 24, 2012 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

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

Submission Procedures:

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, Applicants will be notified by January 31 whether their proposals have been accepted.

Symposium Details:

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.

If you have questions about this call for presentations, please contact Meredith Johnson Harbach,, or Adrienne E. Volenik,

September 19, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 12, 2012

Symposium at Iowa

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 The submission deadline is October 30, 2012.

Download Call For Papers.


September 12, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2012

Partain: "Comparative Family Law, Korean Family Law, and the Missing Definitions of Family"

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.


August 30, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Monday, August 27, 2012

Pearson: "Displaced Mothers, Absent and Unnatural Fathers: LGBT Transracial Adoption"

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.



August 27, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

Cohen & Chen: "Trading-Off Reproductive Technology and Adoption: A Response to Appleton and Pollak"

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), 

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.


August 20, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

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

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 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

August 6, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Sunday, August 5, 2012


This volume, edited by Elaine E. Sutherland, was published by Cambridge University Press on August 2, 2012. In it, experts examine child and family law in thirteen countries – Australia, Canada, China, India, Israel, Malaysia, The Netherlands, New Zealand, Norway, Russia, Scotland, South Africa and the United States. Each chapter identifies the imperatives and influences that have prevailed to date and offers informed predictions of how it will develop in the years to come. A common chapter structure facilitates comparison of the jurisdictions and in the introduction the editor highlights common trends and salient differences. The Future of Child and Family Law therefore provides practitioners, academics and policy-makers with access not just to an overview of child and family law in a range of countries around the world, but also to insights into what has shaped it and options for reform.

The volume is published in honor of Professor Eric M. Clive, a founder member of the International Society on Family Law, who will be known to many readers of this blog. As a leading academic in the field and Scotland’s longest serving law commissioner, he has been responsible for many of the developments in family law in Scotland over recent decades, but his contribution reaches far beyond a single jurisdiction, not least through his work with the Hague Conference on Private International Law – and, indeed, far beyond familylaw. Eric is currently a visiting professor at the School of Law, University of Edinburgh, and continues to research and write.  

Elaine E. Sutherland is a Professor at Lewis and Clark Law School, Portland, Oregon, and Professor of Child and Family Law at the School of Law, University of Stirling, Scotland.

For further information, see here.


August 5, 2012 in Scholarship, Family Law | Permalink | Comments (4) | TrackBack (0)

Friday, August 3, 2012

Final Call for Authors: Cultural Sociology of Divorce: An Encyclopedia

We are inviting academic editorial contributors to Cultural Sociology of Divorce: An Encyclopedia, a 3-volume library reference to be published in 2013 by SAGE Publications.  We hope you’ll consider contributing to this exciting project.    

While the formal definition of divorce may be fairly concise and straightforward (the legal termination of a marital union, dissolving the bonds of matrimony between parties), the effects are anything but, particularly when children and other family members are involved. The Americans for Divorce Reform estimates that “probably, 40 or possibly even 50 percent of marriages will end in divorce if current trends continue." And outside the United States, there are markedly increased divorce rates across developed countries—divorce and its effects are a significant social factor in our culture and others. In fact, it might be said that a whole “divorce industry” has been constructed, with divorce lawyers and mediators, family counselors, support groups, etc. As King Henry VIII’s divorces showed, divorce has not always been easy or accepted. In some countries, divorce is not permitted and even in Europe, countries such as Spain, Italy, Portugal, and the Republic of Ireland only legalized divorce in the latter quarter of the twentieth century. This multi-disciplinary encyclopedia covers curricular subjects around the world ranging from marriage and the family to anthropology, social and legal history, developmental and clinical psychology, and religion.  Three volumes, including over 500 articles, illuminate what has become a culture of divorce and its impact on society.  

This comprehensive project will be marketed to academic and public libraries as a print and digital product available to students via the library’s electronic services.  Each article, ranging from 900 to 4000 words, is signed by the contributor. The General Editor of the encyclopedia is Robert E. Emery, Ph.D., University of Virginia, who will review all the articles for editorial content and academic consistency.  Payment for the articles are honoraria that range from a $50 book credit from Sage Publications for article submissions up to 1,000 words up to a free copy of the encyclopedia for contributions totaling greater than 10,000 words. More than this, your involvement can help assure that credible and detailed data, descriptions, and analysis are available to students of divorce issues.

At this time the project is almost completely assigned with the exception of the following topics (including proposed word counts):

1.  Divorce Law-Hispanic Traditions (2000 words) (e.g. Spanish Empire's influence on communal property laws in the U.S.)
2.  Palimony (1500 words)
3.  Property Distribution (3000 words)

The final deadline for submissions for these entries is  September 24, 2012.  If you would like to contribute to building a truly outstanding reference with Cultural Sociology of Divorce: An Encyclopedia, please contact me by the e-mail information below.   I will provide you with the complete article list, submission guidelines, and sample article for your review.

Thanks very much,

Lisbeth Rogers
Author Manager
Golson Media for SAGE Publications


August 3, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 31, 2012

Jacobs: "Overcoming the Marital Presumption"

Melanie B. Jacobs has posted her atricle Overcoming the Marital Presumption, 50 Family Court Review (2012) on SSRN.  Here is the abstract:

Parentage law is heavily influenced by the number “two.” The traditional paradigm of one mother and one father, especially a married mother and father, has been a bedrock of Western society. In recent decades, however, the traditional two parent paradigm has started to erode and courts have responded. For example, some courts have held that a child can have two legal parents of the same sex. In other cases, a child has been deemed to have just one legal parent and yet in others, even three legal parents. These cases highlight shifts within the law of parentage that have occurred as the nuclear family has decreased in prominence and as the use of assisted reproductive technologies has changed the ways in which families are created. I have previously advocated for the expansion of legal parentage to persons not traditionally considered a legal parent, such as the lesbian partner of a legal mother. I have also suggested that, in limited circumstances, courts consider conferring legal parentage in more than two adults who are raising a child including recognizing that a child might have two fathers. In my home state of Michigan, the traditional two parent paradigm is firmly entrenched as illustrated, in part, by the state’s strict marital presumption, which does not permit a putative father the ability to challenge the husband’s paternity. About one-fifth of U.S. jurisdictions have a similarly strict marital presumption. In this short essay, I criticize the lingering marital presumption and use the critique to illustrate broader inconsistencies within the law of parentage. I also make some modest suggestions for parentage law reform.

Read more here.


July 31, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Monday, July 9, 2012

Zimmerman & Post: "The Revolving Doors of Family Court: Confronting Broken Adoptions"

Brian Zimmerman and I are pleased to announce the recent publication of our law review article through Capital University Law Review.  It is entitled The Revolving Doors of Family Court:  Confronting Broken Adoptions and is available at 40 Cap. U.L. Rev. 437. 

The N.Y.C. family court is made up of many stakeholders from the legal and child welfare communities.  Undeniably, all stakeholders approach this work with the best of intentions to achieve positive outcomes for the children who come through the doors of family court.  Moving children to permanency, whether through return to a parent or through an adoption, is an important goal.  Our article arose from our daily work in the trenches which suggested to us, that while many adoptions are successful, there are many children, the exact number of which is unknown,  returning through the revolving doors of family court as a result of broken adoptions.  During the last few years, city wide discussions have properly centered on correcting inefficiencies in the adoption process, and we are not suggesting that efforts and discussion toward that end should not occur.  To the contrary, we believe that focusing on the issues identified in this article will prompt discussions that will help improve the long term outcomes for children who are adopted and to continually evaluate the efficacy of that goal on a case by case basis.  For it is the shared responsibility of the many service providers and disciplines involved in these children and teenager’s lives, both pre- and post-adoption, to acknowledge the large number of children and teenagers who are returned to the system through the revolving doors of family court, as well as their each parties’ role contributing to children returning.  Only then can a commitment be made to modify or eliminate the conditions which lead to the broken adoptions.

We are sending the cite to this article to you as you have a particular interest in and have made various contributions to the field of child welfare, advocacy and policy.

We hope you enjoy reading the article and look forward to engaging in future discussions in this area to work toward finding a solution to limit the revolving doors of family court.  Please let us know if you would like further information or would like to meet about this subject.


Dawn J. Post, Esq.                                            Brian Zimmerman, Esq.

Co-Borough Director                                         Kings County Assigned Counsel Panel

The Children’s Law Center                                44 Court St., Suite 905

44 Court St., 11th Floor                                     Brooklyn, NY 11201

Brooklyn, NY 11201                                         (718) 855-0413

(718) 522-3333 x146                              


July 9, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 19, 2012

Kelly: "Navigating Gender in Modern Intimate Partnership Law"

Alicia B. Kelly (Widener University - School of Law) has posted Navigating Gender in Modern Intimate Partnership Law, 14 Journal of Law & Family Studies (2012) on SSRN. Here is the abstract:

With women edging up to become half the workforce, claims of women’s economic empowerment now abound. But the reality is that gender equality has not been mainstreamed. The truly eye-opening new data is how marginalized and partial many women’s attachment to the labor force continues to be. Simultaneously, another misleading narrative also circulates — that of separateness — of disconnected individualism. In the context of intimate partnership and feminist legal theory, this Article pushes back against these accounts and demonstrates their problematic link. Contrary to the storylines, many women’s lives in fact remain characterized by deep bonds with partners, children, and extended family, and these connections tend to make women less economically powerful. This vulnerability is recurrently developed inside couple relationships, particularly because labor division still often translates into women specializing in unpaid work.

In this Article I explore how a feminist family law should respond to the connections and risks that come with intimate partnering. I contend that existing intimate partner economics law misses opportunities for strengthening bonds and unfairly distributes the risks and rewards of partnering by turning asymmetry into gendered inequality. This stems from law’s false assumptions that partners are situated equally and are largely unconnected. In contrast, expanding the lens from my earlier work on partnership marriage, I propose that for both unmarried and married couples, law should be based on economic sharing behavior and the benefits and burdens it recurrently produces. As one example of its application, I overview how the theory translates into law when couples break up. This serves to define, modernize and advance the partnership ideal that has so far only been partially developed and implemented in law. I situate my proposal and argue for its appeal in what I identify as related pluralist feminist and family law agendas. This framework is important for sex equality. By recognizing and valuing care work within the family economy, it mitigates the economic risks of sharing that tend to be more acute for women. Yet it resists assignment of the care-giving role to women by recognizing sharing whatever the pattern, thus supporting a range of choices. The sharing model serves equality in another critical way as well, as its principles apply across different forms of couple relationships, whether married or cohabiting, same sex or opposite sex.


June 19, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Kelly: "Actualizing Intimate Partnership Theory"

Alicia B. Kelly (Widener University - School of Law) has posted Actualizing Intimate Partnership Theory, 50 Family Court Review 258 (2012) on SSRN.  Here is the abstract:

This article offers concrete ways to modernize and advance existing laws governing the economics of couple relationships through fuller development and implementation of a “partnership of equals” theory. This is much needed because contemporary law does not adequately protect against financial vulnerabilities produced by partnering, and does not fairly share its benefits. As a result, law contributes to inequalities across a range of groups: between men and women; between cohabitants and married couples; and between same sex and opposite sex couples. Accordingly, I recommend a shift in law’s foundation and application. Couple’s law should be based on economic sharing behavior, broadly and specifically defined to include decision making as well as labor contributions, and should apply to unmarried as well as married couples. Further, law must recognize that sharing activities often importantly shape each partner’s financial situation, including, to an extent, earning power. Drawing on this foundation, I describe specific ways to actualize these principles in legal practice, focusing on when couples break up. Economic advantages and disadvantages that were developed jointly should be shared. At the same time, however, some financial resources are not or are not completely shaped by partnering. In addition, sharing patterns can vary, with the vast majority of married couples being strongly economically intertwined and cohabitants being widely variable. So, for all intimate partnerships, I propose that the legal standard should be an assessment of the degree of economic interdependence in the relationship with resulting rules for sharing property and income streams that vary accordingly. As ripe arenas for extending the reach of the partnership model I offer, for married couples, I focus on alimony and the recent push for guidelines and caps, and for cohabitants, I briefly consider support obligations and the nascent shift in U.S. law toward a joint property regime.


June 19, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Sunday, June 17, 2012

Ryznar & Stępień-Sporek: "The Harmonization of Matrimonial Property Regimes"

Margaret Ryznar (Indiana University Robert H. McKinney School of Law) and Anna Stępień-Sporek (University of Gdańsk School of Law) have posted The Harmonization of Matrimonial Property Regimes on SSRN.  Here is the abstract:

Although family law often differs by jurisdiction, harmonization efforts would make such state laws uniform. In the United States, the major obstacle to the harmonization of family law is the federal system. In the European Union, on the other hand, efforts to harmonize the family laws of member states are increasingly successful. This significant experiment in harmonization offers lessons into the roles of jurisdictional autonomy, cultural relativism, and legal absolutes in society, all of growing importance in an increasingly mobile society and in light of the European Union Commission’s pending proposal for harmonization of matrimonial property regimes.



June 17, 2012 in Divorce (grounds), Marriage (impediments), Property Division, Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Saturday, June 16, 2012

Joining IU McKinney School of Law

On a personal note, I am happy to announce that I am joining the faculty of Indiana University Robert H. McKinney School of Law as associate professor of law this Fall.  I will be teaching Family Law, Trusts & Estates, Juvenile Law, and Comparative & International Family Law. 


June 16, 2012 in Current Affairs, Scholarship, Family Law | Permalink | Comments (3) | TrackBack (0)

Friday, June 8, 2012

Hirshman: "Victory: The Triumphant Gay Revolution"

Linda Hirshman has published a new book, "Victory: The Triumphant Gay Revolution."  The book's description is here:

Supreme Court lawyer and political pundit Linda Hirshman details the stunning story of how a resourceful and dedicated minority transformed the notion of American marriage equality and forged a campaign for cultural change that will serve as a model for all future political movements. In the vein of Taylor Branch’s classic Parting of the Waters, Hirshman’s groundbreaking Victory: The Triumphant Gay Revolution is the powerful story of a massive shift in American culture. Hirshman offers an insider’s view of the crucial struggle that is leading to change, incorporating her unique experiences and insights and drawing upon new interviews—with movement titans such as Frank Kameny and Phyllis Lyon, with next-generation activists such as Evan Wolfson of Freedom to Marry, and with allies including the likes of New York Senator Kirsten Gillibrand—to create a comprehensive, inspiring history of change in our time.



June 8, 2012 in Current Affairs, Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)