PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, August 6, 2010

End Community Property?

I'm back form the SEALS boondoggle law conference in Palm Beach, where I attended an engaging N50486 discussion on "The Continued Vitality of the Community Property Regime."  Panelists Terry Turnipseed and Thomas Oldham made the case that law professors should continue to push for an expansion of community property schemes and the erosion of the old common law/separate property norm.  In opposition, Andrea Carroll argued that extending community property is a mistake.  She contends, in short, that community property regimes incentivize divorce and hand too many rights to creditors.  I thought Professor Carroll raised some very sharp points (and her paper on the subject is excellent), but I don't think she had the better of the argument.  First, although community property may incentivize divorce in a few limited situations, overall it sends a far better message about the meaning of marriage.  Second, states could easily fix her concerns about creditors rights without jettisoning the whole system. 

The question and answer segment raised another fun question: If the economic partnership theory that underlies community property is more in-tune with the way society currently views marriage (and creditors like the system), why hasn't it caught on?  Why aren't more states rushing to adopt community property?  Is the T&E bar really that resistant to learning a new set of laws?  Is the T&E bar really such a shadowy, all-powerful cabal?  Will states change their ways as men fall further and further behind women in educational attainment and job prospects?

Steve Clowney   

(photo credit: Amazon)

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