Family Law Prof Blog

UK Fees in Family Law Cases

The Legal Services Commission in the UK is introducing two new family fee schemes.  Read about it here.

MR

Appleton & Pollak: "Exploring the Connections between Adoption and IVF: Twibling Analyses"

Susan Appleton (Wash. Univ. School of Law St. Louis) & Robert Pollak (Wash. Univ. Saint Louis Buss. School) have posted "Exploring the Connections between Adoption and IVF: Twibling Analyses" (95 Minn. L. Rev. Headnotes 60 (2011)) on SSRN.  Here is the abstract:

This essay responds to Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, in which I. Glenn Cohen and Daniel L. Chen analyze what they describe as an arm-chair principle called “the substitution theory”–the claim that facilitating treatment for infertility, including subsidizing in vitro fertilization (IVF), decreases adoptions. Cohen and Chen venture well beyond the arm chair, closely interrogating the substitution theory both normatively and empirically and concluding, contrary to the substitution theory, that IVF subsidies do not decrease and might actually increase adoptions.

Returning to the arm chair, this Response offers two different perspectives. First, we use a family law lens to focus on important elements of Cohen and Chen’s analysis, both explicit and implicit, including adoption, IVF, genetic connections, reproductive autonomy, and gender. We show how these elements are shaped by the authors’ assumptions, prevailing legal principles, and our culture more generally. Next, we use an economic lens to reveal how mandated subsidies for IVF produce varied conduct, depending on the preferences and resources of those who would consider adoption and IVF. Approaching Cohen and Chen’s analysis from these two different vantage points demonstrates that arm-chair theorizing, properly done, can illuminate the relationship between IVF and adoption.

AC

Caster: "Don’t Split the Baby: How the U.S. Could Avoid Uncertainty and Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law Regime"

Austin Caster has posted "Don’t Split the Baby: How the U.S. Could Avoid Uncertainty and Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law Regime" (10 Conn. Public Int. L. J. 139 (2010)) on SSRN.  Here is the abstract:

 
This article will show that the United States can protect the rights of the intended parents, the surrogate, and the child while avoiding uncertainty and unnecessary litigation by enacting uniform legislation akin to the United Kingdom’s regime. The first section will examine the history of surrogacy law in the United States, demonstrate the inconsistency of these laws, and suggest that reform is needed.

Section two will discuss the United Kingdom’s legislative response to the problem of surrogacy arrangements, which has provided more uniformity despite obstacles similar to those faced in the United States. The third section will illustrate that the United States should adopt a uniform surrogacy law regime using American constitutional and contract law as a basis for such legislation. The fourth section will argue why even those who disagree that families created through surrogacy are constitutionally protected should support uniform federal legislation. Finally, the fifth section will address why even the most logical and convincing counterarguments do not provide a rational basis for perpetuating our patchwork surrogacy regime.

AC

McCluskey: "How Queer Theory Makes Neoliberalism Sexy"

Martha McCluskey (Univ. of Buffalo Law School) has posted "How Queer Theory Makes Neoliberalism Sexy" on SSRN.  Here is the abstract:

Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private power is better than value-laden state regulation.

First, queer anti-statism risks joining neoliberalism in celebrating and naturalizing an imagined space of private bargaining free from state regulation. In rejecting liberal claims of state-protected rights, queer theory relies on a standard law-and-economics argument: all rights have costs. Rights to family leave, for example, may give only the illusion of state protection for workers with family responsibilities, because workers may "pay" for state-protected family leave with lower wages, fewer jobs, fewer promotions or more discrimination against women. However, a critical perspective should also recognize the converse: that all costs have rights. The private power that makes us skeptical of rights is not outside the state but produced by it.

Second, queer anti-moralism joins neoliberalism in masking the moral judgments that shape whose claims to protection against injury get privileged as "good" acts of rational self-interest maximizing by freely choosing individuals and whose injury claims get disparaged as unproductive sentimental weakness that constrain individual freedom.

AC

Chinese Census Results Show Aging Population

Recent census results are out in China.  From the Wall Street Journal:

Initial census results released Thursday show China's population, the world's largest, rose to 1.34 billion as of last year, from 1.27 billion in 2000. That puts average annual growth at 0.57% over the decade, down from 1.07% in 1990-2000.

The census, conducted last year, also shows that people over the age of 60 now account for 13.3% of China's population, compared to 10.3% in 2000. And the reserve of future workers has dwindled: People under 14 now make up 16.6% of the population, down from 23% 10 years ago.

Yet China's leaders vowed again this week to maintain the one-child family-planning policy. This despite the census results and a decade-long campaign by an informal advocacy group of top Chinese academics and former officials who have risked their careers to argue the policy is based on flawed science and vested bureaucratic interests. China's policy is enforced by the National Population and Family Planning Commission, which employs a half-million full-time staffers and six million part-timers. It collects millions of dollars a year in fines from people who violate family-planning rules.

Read more here.

MR

Louisiana's Proposed Family Law System

A new family law court system may come to pass in Louisiana.  Read about it here.

MR

Targets of Celebrity Divorce Battles

Forbes recently ran an article about the things at the center of celebrity divorce battles.  Read it here.

MR 

What Will They Do When A Woman's President?

An astounding story from Yahoo! News regarding the recent photo of Hillary Clinton watching the raid on Bin Laden:

In the photo, President Obama and his national security team are huddled around a conference table in the White House Situation Room, watching CIA director Leon Panetta narrate last Sunday's raid on Osama bin Laden's compound. The mood is clearly tense.

...

"The Hillary Clinton expression is the one that holds the photograph fully," Time's photo director told the magazine. "You can see 10 years of tension and heartache and anger in Hillary's face," Conde Nast's Scott Dadich agreed.

Turns out she was probably just coughing during that crucial moment captured by White House photographer Pete Souza. But nevertheless, the image still proved a bit too racy for at least one of the many newspapers that printed it.

That would be the Ultra-Orthodox Hasidic broadsheet Der Tzitung, published in Brooklyn. The paper photoshopped Clinton, as well at the only other woman who could be seen in the room--Audrey Tomason, the national director of counterterrorism--out of the frame.

Read more here.

MR

Hat Tip: ER

Carbone & Cahn on "The Opt-in Movement"

June Carbone and Naomi Cahn recently wrote a piece featured on Huffington on "the 'opt-in movement,' in which "many mothers are willing to give up income if that means taking control of their schedules, and, perhaps most important, doing meaningful, challenging work in their chosen professions rather than what they see as the less interesting work of the often-stigmatized 'mommy track.'"

Read it here in its entirety.

AC

Shmueli & Schuz: "Between Tort Law, Contract Law, and Child Law: How to Compensate the Left-Behind Parent in International Child Abduction Cases"

Benjamin Shmueli (Bar-Ilan Univ. Faculty of Law) & Rhona Schuz have posted "Between Tort Law, Contract Law, and Child Law: How to Compensate the Left-Behind Parent in International Child Abduction Cases" (forthcoming Columbia Journal of Gender & Law) on SSRN.  Here is the abstract:

 
This article deals with a unique intersection between civil (tort and/or contract) law, criminal law, family and child law, and international law.

Perhaps one of the most traumatic crises which can occur to an individual is when his child is abducted to another country by the other parent. The widely ratified Hague Convention on the Civil Aspects of International Child Abduction 1980 is designed to enable the crisis to be resolved as quickly as possible by mandating the authorities in the state to which the child has been abducted to restore the status quo ex ante by ordering return of the child to the state of his habitual residence immediately prior to the abduction, unless one of the narrow exceptions in the Convention is established.

However, this remedy by itself does not put the left-behind parent in the position he was in before the abduction. In particular, the process of recovering the child often involves the left-behind parent in considerable financial expense. For example, he may incur costs in identifying the whereabouts of the child, in traveling to the requested state and staying there in addition to the legal costs involved in bringing an application for return in the courts of the requested state. Furthermore, the discovery that his child has been abducted together with the uncertainty as to whether and when he will recover the child and lack of or reduced contact with the child will often cause considerable emotional distress to the left-behind parent. The issue of compensation for the left-behind parent is not discussed in the existing literature.

This paper examines - maybe for the first time in the literature - the extent to which it is appropriate to require the abductor to compensate the left-behind parent and the preferred framework for the provision of such compensation. We present four alternative models: the tort model (in which the left-behind parent brings a civil-tort claim against the abducting parent), the contract model (in which the left-behind parent brings a civil-contract claim against the abducting parent in cases in which there is a contract between them and it has been breached), the criminal model (in which compensation is awarded in criminal proceedings against the abducting parent), and the Abduction Convention model (in which compensation is awarded by the court of the state which is requested to return the child as part of the Convention proceedings). We analyze the advantages and disadvantages of each model from both a theoretical and practical perspective. After concluding that the Abduction Convention model is the preferred model, we discuss various dilemmas that arise in implementing this model and consider how to find an appropriate balance between the objectives of tort law and those of child law, as expressed in the Abduction Convention.

Among other considerations, this article examines the delicate question whether in determining the compensation courts should consider: the background of the relations between the abductor and the left-behind parent; the relations between the left-behind parent and the child; contributory negligence (or contributory/comparative fault) the part of the left-behind parent and the social background of the family, including the question of the involvement of the authorities and the possibility that the abductor has taken a step out of frustration and despair due to lack of proper treatment by the authorities.

AC

Best & Worst Moms

In honor of mother's day yesterday, Time made a list of best and worst fictional moms.  Read it here.

MR 

Tabasso: "With or Without You: Hazard of Divorce and Intra-Household Allocation of Time"

Domenico Tabasso (Melbourne Institute of Applied Economics & Social Research) has posted "With or Without You: Hazard of Divorce and Intra-Household Allocation of Time" on SSRN.  Here is the abstract:

This paper investigates the relationship between the probability of divorce and marriage specific investments. As these investments in terms of childcare and household activities are likely to increase the marital surplus, they are consequently likely to decrease the risk of divorce. All such activities, however, are characterized by gender role bias through, for example, social norms. In periods in which married women enjoy greater outside options (e.g., by increasing their labor force participation), it is expected that households in which the husband takes on typically female chores are less likely to dissolve, while couples in which the wife takes on typically male chores are more likely to divorce. The paper tests this hypothesis using data from the National Longitudinal Survey NLS) of Mature Women, the NLS Young Women, and the NLSY79. The prediction is strongly supported by the data with respect to older cohorts while it loses empirical relevance when tested on younger individuals. Furthermore, asymmetric effects between genders gain importance over time. Finally, an explanation for the relationship between divorce and marital investments is offered in terms of increasing intra-household time consumption complementarities. To this end, data from the American Time Use Surveys from 1965 to 2005 are studied to illustrate how time spent together by partners in the same household has become increasingly crucial in the American family.

AC

Top Family Friendly Law Firms

Yale Law women have ranked the top family friendly law firms for 2010:

• Arnold & Porter

• Covington & Burling

• Dorsey & Whitney

• Kirkland & Ellis

• Mayer Brown

• Mintz, Levin, Cohn, Ferris, Glovsky and Popeo

• Perkins Coie

• Pillsbury Winthrop Shaw Pittman

• Sidley Austin

• Wilmer Cutler Pickering Hale and Dorr

Read more here.

MR

Binford: "Saving Haiti's Children from Hell"

Warren Binford (Willamette Univ. College of Law) has posted "Saving Haiti’s Children from Hell" on SSRN.  Here is the abstract:

Haiti’s devastating earthquake in January 2010 left thousands of children orphaned and tens of thousands separated from their family. Following the earthquake, foreign militaries, non-governmental agencies, humanitarian aid workers, missionaries, and volunteers descended en masse on the poorest country in the Western Hemisphere to help the victims, especially children, in the midst of the disaster. Unfortunately, some of those who came to help Haiti’s children showed little regard for the domestic and international legal protections in place to protect child victims of disaster. As a result, these individuals, organizations and governments added additional layers of chaos and alienation to these children’s lives. This article explores the international legal protections in place at the time of the earthquake and the ways in which they were violated in order to “save” Haiti’s children from their families, their religion, their culture and their poverty as much as, if not more than, the earthquake itself.

AC

Expensive Weddings

CNN recently ran a fun piece exploring whether expensive weddings are justified, from a Christian angle.  Read it here.

MR

King & Spalding Issues Continue

The law firm dropping the DOMA defense continues to experience criticism.  Read more here.

MR

Post-wedding-day Blues?

From MailOnline:

The confetti has been swept up, the champagne has gone and the Duchess of Cambridge has a new husband, a new royal title and a new life to look forward to.

Yet after the pomp and pageantry of the most spectacular wedding of the 21st century so far, the future Queen could also be experiencing a niggling sense of disappointment. Like a growing number of brides, she may feel bewildered and somewhat deflated that her Big Day —admittedly bigger than most, with two billion spectators — is resigned to history.

...

As many as one in ten women is thought to suffer from some degree of post-nuptial depression in the wake of their wedding. Research by one U.S. psychologist found that 10 per cent of U.S. couples seek counselling suffering from symptoms including remorse, sadness or frustration. Meanwhile, relationship experts believe that the wedding blues hit a similar proportion of Britain’s 275,000 brides each year.

Read more here.

MR

Big Drop in U.S. Birth Rates

A new report from the Centers for Disease Control and Prevention shows the biggest drop in U.S. birth rates in 30 years.

Read more here.

MR

Fertility Vacation in Barbados, Anyone?

From USA Today:

In this latest twist on the growing trend of going overseas for cosmetic surgery, dentistry and other medical treatment, the Caribbean island's Barbados Fertility Centre, located in what the tourist board describes as "a plantation-style facility" in Christ Church, offers treatments for $400-$8,500 . IVF -- in which an egg is fertilized outside the body and then placed in a woman's uterus -- starts at about $6,000, not including medications, which can add a couple of thousand dollars. But that's cheaper than the $10,000 and up typical in the USA. Fertility packages, including air, lodging and certain treatments are available.

Read more here.

MR

Godwin: "Children's Oppression, Rights and Liberation"

Samantha Godwin has posted "Children's Oppression, Rights and Liberation" (4 Northwestern Interdisciplinary L. Rev. (2011)) on SSRN.  Here is the abstract:

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and stably arranged otherwise by synthesizing Eileen McDonagh’s distinction between decisional autonomy and bodily integrity with Howard Cohen’s writing on borrowed capabilities and child agents. My first conclusion from this analysis is that age based classifications should not be presumed to be rational.

The paper then proceeds to apply these theoretical arguments to specific legal questions. I suggest an argument for treating children as a suspect class for the purposes of equal protection analysis, as well as recognizing that many of the ways children are legally disadvantaged implicate their fundamental rights, and that many (but not all) age based classifications should therefore be subject to strict scrutiny. I then go on to analyze specific legal issues such as voting rights, corporal punishment, runaway children, and due process in juvenile justice using this framework.

AC