Sunday, February 12, 2012
Harvey S. Rozen (Princeton Univ. Dept. of Econ.) has posted "The Marriage Tax is Down But Not Out" on SSRN. Here is the abstract:
The public debate surrounding the Tax Reform Act of 1986 has paid little attention to the tax consequences of being married. Specifically, there has been virtually no discussion of the possible existence of an implicit "marriage tax"--the increase in the joint income tax liability of a man and woman when they marry. This lack of concern appears to be due to the perception that the new law has lowered marginal tax rates to such an extent that the magnitudes of marriage taxes (and subsidies) are inconsequential. In this paper, I show that to the contrary, the new law created large taxes on being married for some couples, and large subsidies for others. On the basis of a tax simulation model, I estimate that in 1988, 40 percent of all couples will pay an annual average marriage tax of about $1100, and 53 percent will receive an average subsidy of about $600. One striking result that emerges from the analysis is the relatively large marriage tax that will be borne by some low income couples with children. For such couples, the marriage tax can amount to 10 percent of joint gross income. Hence, the new tax law appears to quite "anti-family" for some low income workers.
Friday, February 10, 2012
Davidson: "Mother's Baby, Father's Maybe!--Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father?"
Camille Davidson (Charlotte School of Law) has posted "Mother's Baby, Father's Maybe!--Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father?" (22 Columbia J. Gender & Law 531 (2011)) on SSRN. Here is the abstract:
When the renowned chess genius Bobby Fischer died, his body was exhumed in order to determine whether his genetic samples matched samples from a child whose mother claimed he fathered outside of a marital union. Bobby Fischer was domiciled in Iceland and under Icelandic law, if there had been a genetic connection, the child would have been the sole legal heir of his intestate estate. The law is not so clear in the United States. Each state has enacted laws of intestate succession. While the laws in all fifty states provide that a child born out of wedlock is automatically his or her mother's legal child, state statutes vary substantially as to when that same child is entitled to an intestate inheritance from or through his or her genetic father.
If Fischer, the Chicago native, had been domiciled in North Carolina at his death, even if DNA had established a genetic relationship between Fisher and the child, the child would still have been precluded from inheriting her father's estate. In North Carolina, a biological or genetic connection is not enough to constitute a paternal legal heir without strict compliance with statutory formalities. In contrast, if Fischer had been domiciled in Georgia, and through clear and convincing evidence a genetic relationship was established, the child would inherit from her father's estate as his legal child. As one can see, in the United States, paternal inheritance depends on the state of the father's *532 domicile. As such, when we discuss the out of wedlock child and his or her right to inherit family wealth through intestate succession, the old adage “Mother's baby, father's maybe” comes to mind.
In this paper, I suggest that each of the fifty states should, like Georgia and other similarly situated states, follow the trend of Icelandic law in the area of intestate succession. Specifically, where clear and convincing evidence (either before or after a father's death) determines that a father is the genetic parent of a child, and there has been no formal adoption of the child, such child should be entitled to an intestate share of his or her father's estate in the same manner as a child born to a married parents.
Thursday, February 9, 2012
This article takes up the axiomatic place of family law under federalism. Family is often depicted as belonging squarely in the state law domain, reflecting its nature as a matter of moral deliberation, rather than of, say, commerce or constitutional rights. This article demonstrates, however, that family law is a matter of federal law in an endless number of substantive areas, from immigration and taxation to privacy in the marital bedroom and the relative rights of putative and presumed fathers. It asks how the innumerable exceptions to the rule about family law’s place under federalism come to be rationalized. The answer, the article argues, has to do with the fact that the state-federal divide with respect to family maps onto the private-public divide that has long vexed feminists. The constant creation of exceptions to the general rule that family law is state law serve to preserve family’s allegedly moral character and obscure individualist dimensions of family.
Tuesday, February 7, 2012
Anna Stępień-Sporek, Paweł Stoppa, and Margaret Ryznar have posted "The Rules on the Administration of Community Property in Poland" (forthcoming, International Survey of Family Law) on SSRN. Here is the abstract:
The Polish rules on the administration of marital common property underwent significant changes in 2005. Previous regulations, having their roots in the pre-1989 communist regime of Poland, appeared insufficient for the current capitalist economy and today’s dynamically developing society. The previous management of common property, based on the unclear dichotomy between ordinary and extraordinary actions, created practical judicial problems and undermined the stability of legal relationships established without the consent of the other spouse. The new law, based on the general principle of self-management except for particularly important actions, seems preferable, although it is not completely free of shortcomings and still requires periodic review. This article describes the most notable differences between the old and new rules on the administration of common marital property, and introduces readers to the field of the administration of common property pursuant to the relevant new regulations.
Sunday, January 29, 2012
Cashmore: "The Link Between Child Maltreatment and Adolescent Offending: Systems Neglect of Adolescents"
Judith Cashmore (Univ. of Sydney Faculty of Law) has posted "The Link Between Child Maltreatment and Adolescent Offending: Systems Neglect of Adolescents" on SSRN. Here is the abstract:
This paper is concerned with the nexus between abuse and neglect and adolescent offending in the lives of some children and young people, and the lack of a coordinated response to these by both the child protection and juvenile justice systems. The window for effective intervention, especially in relation to offending behaviors, is not closed after early childhood, though it is likely to be more expensive to intervene at later ages. Crucially, state parental responsibility for children and young people in care must not stop once they have offended and become troublesome as well as troubled.
Saturday, January 28, 2012
A new study suggests that marriage does not necessarily provide more or better benefits than other romantic relationships. From UPI:
"We found that differences between marriage and cohabitation tend to be small and dissipate after a honeymoon period. Also while married couples experienced health gains -- likely linked to the formal benefits of marriage such as shared healthcare plans -- cohabiting couples experienced greater gains in happiness and self-esteem," Musick and Bumpass said in a statement. "For some, cohabitation may come with fewer unwanted obligations than marriage and allow for more flexibility, autonomy and personal growth."
The study, scheduled to be published in the February issue of the Journal of Marriage and Family, said marriage is by no means unique in promoting well-being and that other forms of romantic relationships can provide many of the same benefits.
Friday, January 27, 2012
Call for Papers: Nov. 2012 Immigration/Family Law Symposium
In November of 2012 Hofstra will be hosting a symposium on the interplay between immigration issues and family courts’ obligations to serve families and children. We are currently soliciting papers for publication in Hofstra’s Family Court Review, which will be publishing a special issue on the same topic. We are especially interested in submissions from clinical professors. The call for papers is embedded below. Please feel free to contact either of us if you have any questions.
Lauris Wren (email@example.com)
Theo Liebmann (firstname.lastname@example.org)
Hofstra Law School
Hempstead, NY 11549
Family Court Review
Call for Papers
Special Issue: Immigration and the Family Court
The Family Court Review seeks submissions for an upcoming special symposium issue dedicated to the complex interplay between immigration issues and the family court’s obligations to serve families and children. Family courts throughout the United States have explicit statutory duties to aid families in crisis, to maintain families whenever appropriate, to protect children and safeguard their well-being, and to provide children with permanency in their lives. These are not narrow obligations, and the judges, practitioners and agencies involved in family courts must constantly adapt to serve the individual needs of all the families which come before them. The purpose of this Special Issue is to examine the unique challenges presented by working with families and children who are immigrants – both documented and undocumented – and the complex interplay between immigration issues and the family court’s obligations to serve the families and children.
Contributions can be from scholars, practitioners, judges, public policy makers, and experts in all professional disciplines who work with children and families who are immigrants. We expect to publish a broad range of topics, including: whether immigration status should be a factor in basic family court legal standards; what responsibility family courts and related agencies have to tailor services for families with immigration-related issues; the duty of judges and attorneys to advise parties of immigration consequences of family court decisions; parental rights of detained non-citizen parents; the effect of undocumented immigration status on children’s mental health and overall well-being; and educating family court judges, attorneys and administrative personnel on relevant immigration issues. A symposium highlighting these topics will follow in November 2012.
To be eligible for publication, papers must be submitted by June 1, 2012. Submitted articles should be 15 – 20 double-spaced pages, including citations, notes, references, tables, and figures. Authors are requested to follow the Publication Manual of the American Psychological Association (5th edition) or the Bluebook: A Uniform System of Citation (19th Ed.). Publication decisions will be made shortly following the submission date and the publication of this special issue is expected to be completed in October 2012.
The Family Court Review is the quarterly research and academic journal of the Association of Family and Conciliation Courts (AFCC), edited at Hofstra University School of Law and published by Blackwell Publishing. AFCC is an interdisciplinary association of approximately three thousand judges, academics, researchers, counselors, evaluators, mediators, attorneys and others concerned with the constructive resolution of family conflict.
Please direct all inquiries to Professors Theo Liebmann and Lauris Wren, Special Issue Editors, by email at lawtsl and email@example.com.
Thursday, January 26, 2012
In a generation, American law has experienced dramatic reforms in response to domestic abuse. Feminist activism prompted and has driven these reforms and a deeper cultural understanding of domestic abuse, and recent legal innovation has yielded more effective options for victims of domestic violence. Virtually all of these reforms built upon existing legal structures to afford specific process and remedies to victims of domestic abuse, but why were innovations necessary if existing legal structures could have intervened on their own extant authority?
Customary, common law equity might have intervened effectively to interrupt violence in homes, to render injunctive relief for the protection of women and children, and to examine the dynamics of family violence. Despite this promise, equity failed for centuries as a means to protect victims of abuse in families. Now, equity has evolved, and society and culture are far better illuminated on matters of gender justice and the dynamics of intimate violence. Feminist reforms have taken root and flourished, and thelaw now empowers courts to intervene regularly in family matters. A persistent problem rises when lawmakers attempt to craft broad standards to address individualized, customized abuse. Equity can expand the tools available to courts to render justice for victims, especially victims who are not subject to physical violence. Equity can be an interstitial supplement when general law cannot accommodate unique, specific relationships that are abusive and violent.
This Article considers why traditional, common law equity failed historically to address domestic abuse and examines how equity now intersects with other legal remedies for victims. It concludes with a call to refine and improve equity in light of an illuminated, modern understanding of domestic abuse and gender justice, while claiming the old moral demands of a good judicial conscience, one that will suffer no wrong without rendering adequate, preventative and moral relief.
Monday, January 9, 2012
Over at Concurring Opinions, Naomi Cahn of George Washington University Law School recently reviewed Hendrik Hartog's "Someday All This Will be Yours: A History of Inheritance and Old Age" (Harvard University Press 2012). Cahn wrote:
The book touches upon family law, trusts and estates, property, contract, commodification, and (of course) the role of legal history, and it pulls these together with wonderful complexity and intertwined themes. It also should speak to many people on a personal level, whether they feel “’trapped’” into caring for elderly family members, well-compensated for providing this care, or simply honored to do so.
Read more here.
Sunday, January 8, 2012
Jennifer Levi (Western New England Univ. School of Law) has posted "Marriage Equality for Same-Sex Couples: Where We Are and Where We Are Going" on SSRN. Here is the abstract:
The legal landscape for same-sex couples seeking to marry has shifted dramatically over the last five years. On October 10, 2008, the Connecticut Supreme Court became the third state high court to rule that its state constitution could not sustain a statutory framework that excludes same-sex couples from marrying, following the Massachusetts Supreme Judicial Court on November 18, 2003, and the California Supreme Court on May 15, 2008. Same-sex couples throughout the country have gotten married in Connecticut, Massachusetts, California, and in other countries throughout the world that provide full marriage equality, including in Canada. The Author discusses the developments in same-sex marriage in various jurisdictions.
Friday, January 6, 2012
In the 1840s, state legislatures began modifying the law of marital status to ease the economic distress of widows and children at the family breadwinner’s death. Insurance-related exceptions to the common law doctrine of “marital unity” under coverture permitted married women to enter into insurance contracts and protected life insurance proceeds from their husbands’ creditors.
These early insurance-related statutory exceptions to coverture introduced an important theoretical question that persisted for the rest of the nineteenth century — and into the next — as broader legal and social reforms took hold. How could equality of contract for married women be reconciled with the traditional dependencies of the home? Equality of contract also introduced the practical economic problem of how the lives of women could be valued apart from their husbands when the law otherwise enforced their economic dependency.
The theoretical and practical issues were resolved for life insurance and annuity contracts, the Article argues, by an increased emphasis on “natural” differences between men and women when those differences comported with traditional gender status hierarchies and dependencies. Gender-distinct mortality tables and higher rates for coverage of women first appeared in annuity contracts used to fund lifetime financial support independent of or as a substitute for marital rights. Gender-merged tables and unisex rates generally prevailed, however, in life insurance contracts used to protect wives and children from the family breadwinner’s death, a more traditional pattern of household dependency. Gender-distinct rates thus tempered, in both symbolic and practical/economic terms, the equality of contract recognized by the statutory exceptions to coverture. The selective adoption of gender-distinct insurance rates during the first wave of woman’s rights activism illustrates the role played by marketplace contracts in reinforcing the traditional status relationships and dependencies of the home.
Sunday, December 18, 2011
This article addresses an important concept theme in family law scholarship: that of belonging. This paper will address the boundaries of belonging, the need to preserve boundaries to preserve communities, particularly the community of marriage, and to protect and maintain the opportunity and value of belonging to such communities. One of the paradoxes of belonging is that the need to belong also creates a need to exclude; in order for belonging to occur, there must be boundaries, standards defining the relationship, and criteria separating members of the group from nonmembers. The boundaries of marriage must reflect the key purposes of the community. This article explains why allowing same-sex couples to marry would seriously undermine the basic legal and social institution of marriage. This article seeks to establish five basic points about the boundaries of marriage. First, boundaries and exclusion are necessary for all communities, including the community of marriage. Second, boundaries must reflect, protect, and reinforce the core principles of the community. Third, gender integration is a critical, core purpose of marriage. Fourth, legalizing same-sex denies and undermines the core gender-integrative purposes of marriage. Finally, in setting the boundaries of basic social institutions such as marriage, it is especially important to follow the legitimate process of democratic self-government, and not abuse or circumvent, evade or cut off those important political processes which help society learn, grow, unite and heal.
Friday, December 16, 2011
This Article thus has two goals. The first is to show how the Muslim conception of marriage diverges from the Christian-influenced norms that dominate American law and society. Understanding this divergence provides a necessary background to Islamic mahr contracts. The second goal is to provide lawyers and judges with a doctrinal framework within our current law for analyzing these contracts and reaching sensible results in concrete cases.
The remainder of this Article will proceed as follows: Part II provides an introduction to Islamic law in general, and the law of marriage and divorce in particular, as well as some discussion of how these rules function in practice. Part III summarizes the way in which American courts have dealt with mahr contracts, showing how both husbands and wives seek to deploy arguments based on contract law, the law of premarital agreements, and constitutional law. Part IV provides a framework for analyzing mahr contracts. It argues that such contracts are best dealt with using traditional contract doctrines. Indeed, once the meaning of mahr contracts are properly understood, this Article argues that the common law of contracts is capable of dealing with potential problems presented by mahr contracts without any dramatic legal innovations.
Thursday, December 15, 2011
NeJaime: "Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination"
As more states consider marriage recognition for same-sex couples, attention turns to the conflict between marriage equality and religious liberty. Legal scholars are contributing substantially to the debate, generating a robust academic literature and writing directly to state lawmakers urging them to include a “marriage conscience protection,” containing a series of religious exemptions, in marriage legislation. Yet the intense scrutiny of religious freedom specifically in the context of same-sex marriageobscures the root of the conflict. At stake is the relational enactment of sexual orientation; same-sex relationships constitute lesbian and gay identity, and religious objections arise largely in response to such relationships. Same-sex marriage is merely one form of sexual orientation identity enactment, and religious objections to same-sex marriage are merely a subset of objections to sexual orientation equality. By exposing the connections between same-sex relationships and lesbian and gay identity, this Article argues for an antidiscrimination regime that includes same-sex relationships more comprehensively; in doing so, it resists the use of marriage as antidiscrimination, both for same-sex couples and religious objectors. Yet even as the “marriage conscience protection” proposed by religious liberty scholars misapprehends the basis of the underlying conflict, its sweeping language threatens to reach into the antidiscrimination domain and target lesbians and gay men based not primarily on their marriages but instead more generally on their same-sex relationships. By permitting religious organizations, as well as some employers, property owners, and small businesses, to discriminate against same-sex couples throughout the course of the couples’ married lives in situations far removed from marriage itself, the “marriage conscience protection” may have unintended consequences that would threaten substantial progress made in antidiscrimination law. Worse yet, using the term “marriage conscience protection” to label instances of discrimination against same-sex relationships would hide an increasing amount of sexual orientation discrimination that antidiscrimination law is just beginning to address.
Wednesday, December 14, 2011
Dana Rotz (Harvard) has posted "Do Outside Options Matter Inside Marriage? Evidence from State Welfare Reforms" on SSRN. Here is the abstract:
I analyze the impact of the early 1990s state waivers from Aid to Families with Dependent Children (AFDC) guidelines to understand how changes in options outside ofmarriage affect household expenditures. AFDC waivers decreased the public assistance available to impoverished divorced women and thereby reduced a woman's bargaining threat point in marriage. Using the Consumer Expenditure Survey (CEX) and an empirical synthetic control approach, I find that decreases in potential welfare benefits altered the expenditure patterns of two-parent families. Waivers were associated with increased expenditure on food at home relative to restaurant meals and decreased expenditure on child care and women's clothing, suggesting greater home production and decreased consumption by women. Such changes are evident only for households containing a woman with a reasonable probability of receiving welfare benefits if her marriage ended. The changes in expenditure patterns suggest that reductions in a wife's outside options cause her utility within marriage to decline.
Jones: "Disproportionate Representation of Minority Youth in the Juvenile Justice System: A Lack of Clarity and Too Much Disparity among States 'Addressing' the Issue"
Elizabeth N. Jones has posted Disproportionate Representation of Minority Youth in the Juvenile Justice System: A Lack of Clarity and Too Much Disparity among States “Addressing” the Issue (16 U.C. Davis J. Juv. L. & Pol’y ____ (2012)) on SSRN. Here is the abstract:
This article explores how states are struggling to reduce the overrepresentation of youth of color in their juvenile justice systems by complying with the federal Juvenile Justice and Delinquency Prevention Act. The JJDPA provides funding for states following its directive to identify, assess, and reduce the disproportionate contact by minority youth with the juvenile justice system. This article queries whether the JJDPA is an effective instrument with which to seek racial parity for minority youth who are already “in contact” with the juvenile justice system. It first provides a brief history and overview of the JJDPA, highlighting three areas of potential concern. This article then posits that these three focal points hinder, and may actually serve to undermine, the states from completing their mission of reducing, and eventually eliminating, the disproportionate representation of minority youth in the juvenile justice system. Various states are surveyed, and their limited successes in attempting to reduce disproportionate minority contact are noted. Finally, a strategy to catch children “pre-contact” through a continuum of school and community-based programs is discussed. President Obama’s projected 2012 budget proposes incentives for the states to remain in compliance with the JJDPA, though many of them appear to be in danger of falling out of conformity. With the JJDPA ripe for reauthorization, this issue is aptly timed for debate. This article supplies some ideas for consideration.
Tuesday, December 13, 2011
Jason Kuznicki (Cato Institute) has posted "Marriage Against the State: Toward a New View of Civil Marriage" (Cato Institute Policy Analysis No. 671 (2011)) on SSRN. Here is the abstract:
As U.S. courts have repeatedly declared, marriage is fundamentally a private, individual right. One implication of this view, clear but not always consistently applied, is that the federal role in marriage should be to get out of the way. When it cannot, it should behave in predictable, orderly, and low-cost ways so that individuals may conduct their family and private lives as they think best. When the federal government must act in this area, it should do so only with a view toward preserving individual rights. This paper considers federal marriage policy in a new light by suggesting that some, though far from all, of the federal provisions governing marriage may be understood as protections of this kind, or as guarantees of individual responsibility, as in the case of children. When marriage acts in such a way, it merits federal recognition, but not otherwise.
Although privatizing all aspects of marriage may well be appealing, such an approach would result, at both state and federal levels, in much greater government interference in family life, higher taxes for married couples, invasions of privacy, difficulties related to child custody, and other negative consequences. In some areas,marriage is a defense against state power, and such a defense should not be lightly discarded. However, marriage should be decoupled from the tax code by adopting a flat tax; the Defense of Marriage Act should be repealed; and Congress should adopt language making it clear that civil and religious marriage are not the same institution, and that the existence of marriage as a legal category is neutral with respect to religion. Wherever possible, marriage penalties and bonuses in the tax code and welfare system should be eliminated.
Monday, December 12, 2011
This article examines how couples in community property states attempt to opt out of the “sharing” concept that is the hallmark of community property law. The discussion begins with why couples in community property states may want to opt out. Then the discussion explains how couples try to accomplish opting out of the communityproperty system by formal and informal methods, some successful and others not so successful. The methods used before and during marriage and after separation are examined. The main focus is on the California, Louisiana, and Washington community property law.
Call for Symposium Papers- Lenahan (Gonzales) v. United States of America: Domesticating International Law. Symposium will be held at American University Washington College of Law, Washington, D.C. on April 17, 2012. Deadline for Submission of Abstracts is January 13, 2012.
The American University Washington College of Law’s Journal of Gender, Social Policy & the Law and Women and the Law Program invite symposium papers analyzing the Inter-American Commission on Human Rights’ recent decision in Lenahan (Gonzales) v. United States of America, Case No. 12.626. While other international cases have situated domestic violence as a human rights violation, Lenahan v. United States is the first individual complaint by a victim of domestic violence to be brought against the United States for a failure to enforce a mandatory protective order. The Inter-American Commission on Human Rights’ decision in favor of Ms. Lenahan confirms a state responsibility, rooted in international law, to protect individuals from so-called private violence. The decision of the Inter-American Commission stands in stark contrast to the U.S. Supreme Court’s ruling on the same facts in the case of Castle Rock v. Gonzales, 545 U.S. 748 (2005), in which the Court held that Ms. Lenahan’s constitutional rights had not been violated because individuals do not have personal entitlement to police enforcement of a protective order.
This Symposium celebrates the 20th anniversary of the influential American University Journal of Gender, Social Policy & the Law. The organizers welcome papers from scholars and practitioners (sorry, no student papers) exploring the multiple dimensions of these cases, including implications both in the United States and abroad. For more information and to submit an abstract online, visit: www.wcl.american.edu/go/lenahan/.
Read the full announcement here: Download Call.
Sunday, December 11, 2011
Wardle: "The Impacts on Education of Legalizing Same-Sex Marriage and Lessons from Abortion Jurisprudence"
One of the most contentious issues to arise in public policy debates concerning the legalization of same-sex marriage is whether legalizing same-sex marriage has a significant detrimental impact on education, particularly public education. However, legal scholarly and professional consideration of this issue is scarce and one sided. This article reviews the evidence that legalizing same-sex marriage has had a serious, profoundly controversial, and arguably detrimental impact on public education. It then explains why legalization of same-sex marriage must have some impact on educational curriculum. When the meaning of marriage changes it must be reflected in the curriculum that covers that subject. Next, the existing constitutional protections against detrimental impacts upon parents’ rights and family integrity interests of legalizing same-sex marriage are reviewed. The article also presents an analogy from abortion jurisprudence that may provide some protection for parental rights to control the education of their children and protect them against some detrimental effects on education from legalizing same-sex marriage. Finally, the article provides some recommendations for legal remedies and community action that may address these concerns.