Monday, March 12, 2012

Wilson: "The Perils of Privatized Marriage"

Robin Fretwell Wilson (Washington & Lee) has posted "The Perils of Privatized Marriage" (MARRIAGE AND DIVORCE IN A MULTI-CULTURAL CONTEXT: RECONSIDERING THE BOUNDARIES OF CIVIL LAW AND RELIGION, p. 253, Joel A. Nichols, ed., Cambridge University Press, 2011) has posted on SSRN.  Here is the abstract:

Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society, and how to accommodate religion in matters of family law. Efforts to respect religious understandings in family disputes seem at first blush innocuous: they would allow religious groups to define their own norms and celebrate the rich diversity of society. However, the experience of women and children of multiple faiths across the world demonstrates that religious deference extracts an unconscionable price. As the Volume in which this Chapter appears illustrates, such proposals would confer considerable latitude in family matters not only on adherents of Islam, but on Christians, Jews, and members of other faiths. 

This Chapter argues that such efforts are well-intentioned but naïve. Religious communities are not immune from family violence, and religious norms place women at significant financial and custodial disadvantages. In many instances, there are striking breaks between civil law norms and the outcomes demanded by religious understandings in places where religious arbitration is occurring. The experiences of women and children demonstrate that removing state protections from the family is fraught with peril. In some systems of religious deference, the cost of exiting a marriage, even an abusive one, for women is unconscionable - leading to a substantial risk of poverty and sometimes the loss of child custody after divorce. Some religious leaders tolerate family violence, further frustrating a woman’s ability to exit an abusive marriage. The foreseeable inequities to women and children in systems of religious deference cannot be justified on grounds that a woman voluntarily chooses to participate. Unlike prenuptial agreements, which must be in writing and are policed for duress and unconscionability, existing systems of religious deference offer no such safeguards. This Chapter concludes that policymakers should give serious consideration to the costs of giving deference to religious understandings of family relationships before ceding authority for family disputes to religious bodies.


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

Tuesday, February 21, 2012

Rosenberg: "Liberalism Unsettled: Freedom and Status in the Promise of Marriage"

Anat Rosenberg (Radzyner School of Law) has posted "Liberalism Unsettled:  Freedom and Status in the Promise of Marriage" on SSRN.  Here is the abstract:

This paper examines the tension between freedom and subjection under liberalism; but, rather than emphasize either side of the binary, my aim is to articulate the terms of duality, and provide an account of the social life of liberal thought. To do so, I revisit the nineteenth-century promise of marriage. 

The promise of marriage represented a conceptual fusion of the liberal ideals of contract and sentiment, central to rise of the free market and the conjugal family, and of the counterforces of status - particularly gender and class. While the former marshaled the hope of free will as a new basis for the social order, subjection lurked in the latter. The fusion threw the hopes and tensions of the liberal hypothetical into sharp relief, and turned the promise of marriage into a central cultural locus for Victorians. 

I rely on an interdisciplinary reading of the promise’s fortunes in contract law and canonic novels to examine the terms on which liberalism engaged with status. The examination reveals two historical strategies. One was containment: considerations of status were contained within the conceptual liberal frameworks of sentiment and contract, and, in consequence, reduced in magnitude. A second was withdrawal: the application of the liberal framework was bordered and limited, but the delimitation was construed as inconsequential, because liberalism retained relevance in areas conceptualized as the core of social relations. 

Contra familiar accounts, which treat the opposition between liberal ideals and status in terms of mutual exclusion, and take the persistence of status to mean that liberalism has been a (partially) failed hope or a form of apologetics for power, containment and withdrawal tell a more complex story. The liberal rejection of status did not entail an attempted elimination but rather a new interpretation of status’s legitimate workings within social relations. Containment and withdrawal teach us of the distinctive ways in which liberalism, as a social phenomenon – rather than an ideal philosophical construct, processed, adapted to, and also transformed, forces of status.


February 21, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Monday, February 20, 2012

Berenos: "Time to Move On? The International State of Affairs with Respect to Child Relocation Law"

Yildiz Maria Berenos (Utrecht Univ. School of Law) has posted "Time to Move On?  The International State of Affairs with Respect to Child Relocation Law" (8 Utrecht L. Rev. 1 (2012)) on SSRN.  Here is the abstract

By surveying binding law in civil and common law jurisdictions and non-binding law produced by national, regional and international organizations, this article tries to map the international state of affairs with respect to child relocation. Various legal topics that have concerned legislatures are discussed. It appears that - worldwide and more specifically within Europe - great variety exists with respect to child relocation law, which leads to legal uncertainty. As a consequence, parents often do not know how to act in case of child relocation. This might have a negative effect on other issues, such as child abduction. Harmonization of law on child relocation seems necessary to diminish the existing legal uncertainty. It is concluded that the development of a European or international non-binding law instrument that addresses both national and international relocation cases could be a first step in the harmonization process.


February 20, 2012 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Sunday, February 19, 2012

Lafferriere: "Artificial Reproductive Techniques and Parenting: Trends and Paradoxes"

Nicholas Lafferriere (Universidad Catolica Argentina) has posted "Artificial Reproductive Techniques and Parenting:  Trends and Paradoxes" on SSRN.  Here is the abstract:

The increasing use of artificial reproductive techniques generates very complex problems concerning parent-child juridical relations. Posthumous insemination, heterologous fertilization procedures, and surrogate motherhood raise questions as to the traditional ways in which we establish parenthood. This paper analyzes trends in comparativefamily law and proposes responses to the challenges presented by artificial reproductive techniques. First, it considers the juridical issues that arise from the use of donor gametes, with special attention to the question of donor anonymity. Then the paper considers basic principles that should guide law and policy in this area, and proposes conclusions as to the right to identity, the commodification of the human body, the traceability of gametes, the exploitation of women, and other matters. The paper considers same-sex marriage (with special attention to a recent Argentinian law recognizing them); and it considers the possibility of “two-mother” or “two-father” families. The complexities of the different combinations of biological parents, donors, and surrogate mothers are considered. The paper concludes by identifying the problems intrinisic to these reproductive techniques and by emphasizing the need for strong legal measures to assure the human dignity of the unborn child and the transmission of life, with special consideration to family law.


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

Sunday, February 12, 2012

Rozen: "The Marriage Tax is Down But Not Out"

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.


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

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.


February 10, 2012 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Thursday, February 9, 2012

Adler: "Federalism and Family"

Libby Adler (Northeastern Univ. School of Law) has posted "Federalism and Family" (8 Columbia Journal of Gender and Law 197 (1999).  Here is the abstract:

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.


February 9, 2012 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Tuesday, February 7, 2012

Stępień-Sporek, Stoppa, & Ryznar: "The Rules on the Administration of Community Property in Poland"

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.

February 7, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

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.


January 29, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Saturday, January 28, 2012

The Benefits of Marriage

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.

Read more here.  The study is available in the February 2012 issue of Journal of Marriage and Family in the article "Reexamining the Case for Marriage: Union Formation and Changes in Well-Being" by Kelly Musick and Larry Bumpass. 

January 28, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Friday, January 27, 2012

Call for Papers: Hofstra Immigration and Family Law Symposium

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 (

Theo Liebmann (

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


January 27, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Thursday, January 26, 2012

Baker: "The Failure and Promise of Equity in Domestic Abuse Cases"

Jeffrey Baker (Faulkner Univ. Jones School of Law) has posted "The Failure and Promise of Equity in Domestic Abuse Cases" on SSRN.  Here is the abstract:

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.


January 26, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Monday, January 9, 2012

Cahn's Review of Hartog's "Someday All This Will be Yours: A History of Inheritance and Old Age"

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.



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

Sunday, January 8, 2012

Levi: "Marriage Equality for Same-Sex Couples: Where We Are and Where We Are Going"

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.


January 8, 2012 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Friday, January 6, 2012

Heen: "From Coverture to Contract: Engendering Insurance on Lives"

Mary Heen (Univ. of Richmond) has posted "From Coverture to Contract: Engendering Insurance on Lives" (23 Yale J. Law & Econ. 335 (2011)) on SSRN. Here is the abstract:

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.


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

Sunday, December 18, 2011

Wardle: "The Boundaries of Belonging: Allegiance, Purpose and the Definition of Marriage"

Lynn Wardle (BYU) has posted "The Boundaries of Belonging:  Allegiance, Purpose and the Definition of Marriage" (BYU J. Public L. (2011)) on SSRN.  Here is the abstract:

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.


December 18, 2011 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Friday, December 16, 2011

Oman: "How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts"

Nathan Oman (William & Mary) has posted "How to Judge Shari'a Contracts:  A Guide to Islamic Marriage Agreements in American Courts" (Utah L. Rev. (2011)) on SSRN.  Here is the abstract:

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.


December 16, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Thursday, December 15, 2011

NeJaime: "Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination"

Douglas NeJaime (Loyola LA) has posted "Marriage Inequality:  Religious Exemptions and the Production of Sexual Orientation Discrimination" (forthcoming Cal. L. Rev.) on SSRN.  Here is the abstract:

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.


December 15, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 14, 2011

Rotz: "Do Outside Options Matter Inside Marriage? Evidence from State Welfare Reforms"

Dana Rotz (Harvard) has posted "Do Outside Options Matter Inside Marriage?  Evidence from State Welfare Reforms" on SSRN.  Here is the abstract:

I analyze the impact of the early 1990s state waivers from Aid to Families with Dependent Children (AFDC) guidelines to understand how changes in options outside ofmarriage affect household expenditures. AFDC waivers decreased the public assistance available to impoverished divorced women and thereby reduced a woman's bargaining threat point in marriage. Using the Consumer Expenditure Survey (CEX) and an empirical synthetic control approach, I find that decreases in potential welfare benefits altered the expenditure patterns of two-parent families. Waivers were associated with increased expenditure on food at home relative to restaurant meals and decreased expenditure on child care and women's clothing, suggesting greater home production and decreased consumption by women. Such changes are evident only for households containing a woman with a reasonable probability of receiving welfare benefits if her marriage ended. The changes in expenditure patterns suggest that reductions in a wife's outside options cause her utility within marriage to decline.


December 14, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Jones: "Disproportionate Representation of Minority Youth in the Juvenile Justice System: A Lack of Clarity and Too Much Disparity among States 'Addressing' the Issue"

Elizabeth N. Jones has posted Disproportionate Representation of Minority Youth in the Juvenile Justice System: A Lack of Clarity and Too Much Disparity among States “Addressing” the Issue (16 U.C. Davis J. Juv. L. & Pol’y ____ (2012)) on SSRN.  Here is the abstract:

This article explores how states are struggling to reduce the overrepresentation of youth of color in their juvenile justice systems by complying with the federal Juvenile Justice and Delinquency Prevention Act. The JJDPA provides funding for states following its directive to identify, assess, and reduce the disproportionate contact by minority youth with the juvenile justice system. This article queries whether the JJDPA is an effective instrument with which to seek racial parity for minority youth who are already “in contact” with the juvenile justice system. It first provides a brief history and overview of the JJDPA, highlighting three areas of potential concern. This article then posits that these three focal points hinder, and may actually serve to undermine, the states from completing their mission of reducing, and eventually eliminating, the disproportionate representation of minority youth in the juvenile justice system. Various states are surveyed, and their limited successes in attempting to reduce disproportionate minority contact are noted. Finally, a strategy to catch children “pre-contact” through a continuum of school and community-based programs is discussed. President Obama’s projected 2012 budget proposes incentives for the states to remain in compliance with the JJDPA, though many of them appear to be in danger of falling out of conformity. With the JJDPA ripe for reauthorization, this issue is aptly timed for debate. This article supplies some ideas for consideration.


December 14, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)