Digital Commons Network^™

The Intersection Of Civil And Religious Family Law In The U.S. Constitutional Order: A Mild Legal Pluralism, Linda C. Mcclain

Faculty Scholarship

This chapter considers how civil and religious family law intersect in the U.S. legal system and how U.S. constitutional law shapes and constrains the accommodation of religious pluralism as it pertains to family law. To the question, “Is there too much or too little pluralism in U.S. family law?,” I answer that family law appropriately embraces a mild legal pluralism, while clearly distinguishing between civil and religious marriage. After illustrating this distinction in the context of the recent controversy over same-sex marriage, I consider two categories of cases: (1) cases in which courts consider whether to enforce terms of Jewish …

Common Law Fundamentals Of The Right To Abortion, Anita Bernstein

Faculty Scholarship

No abstract provided.

Adopting The Gay Family, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Marriage Equality And The New Maternalism, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Openness In International Adoption, Malinda L. Seymore

Faculty Scholarship

After a long history of secrecy in domestic adoption in the United States, there is a robust trend toward openness. That is, however, not the case with international adoption. The recent growth in international adoption has been spurred, at least in part, by the desire of adoptive parents to return to closed, confidential adoptions where the identity of the birth mother is secret and there is no ongoing contact with her. There is, however, an emergent interest in increased openness in international adoption, spurred by the success of domestic open adoptions, health concerns when an adoptee's genetic history is important, …

Is There A Way Forward In The 'War Over The Family'?, Linda C. Mcclain

Faculty Scholarship

When Judge Posner, in Baskin v. Bogan, expressed incredulity -- given actual demographic trends in family formation -- that state marriage laws excluding same-sex couples furthered interests in “channeling” procreative sex and addressing accidental pregnancy, he brought together two conversations about marriage, family law, and family life that too often proceed independently. In the first, same-sex couples challenging marriage laws and the courts who rule in their favor emphasize the high stakes of exclusion by characterizing marriage as an incomparable institution and a signal that one’s intimate commitment is worthy of equal respect and dignity. To be left out of …

Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra

Faculty Scholarship

No abstract provided.

"Law And Justice Are Not Always The Same": Creating Community-Based Justice Forums For People Subjected To Intimate Partner Abuse, Leigh S. Goodmark

Faculty Scholarship

What constitutes justice in cases involving intimate partner abuse has historically been determined not by the person subjected to abuse, but rather an actor within the legal system—a police officer, a prosecutor, an advocate, or a judge—and those individuals most often define justice in terms of what the legal system has to offer. People subjected to abuse may conceive of justice quite differently, however, in ways that the legal system is not well suited to address. For people subjected to abuse who are interested in punishment, whose goals are congruent with the legal system’s goals of safety and accountability (as …

Hands Up At Home: Militarized Masculinity And Police Officers Who Commit Intimate Partner Abuse, Leigh S. Goodmark

Faculty Scholarship

The deaths of Michael Brown and Eric Garner and the almost daily news stories about abusive and violent police conduct are currently prompting questions about the appropriate use of force by police officers. Moreover, the history of police brutality directed towards women is well documented. Most of that literature, however, captures the violence that police do in their public capacity, as officers of the state. This article examines the violence and abuse perpetrated by police in their private lives, against their intimate partners, although the public and private overlap significantly to the extent that the power and training provided to …

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Faculty Scholarship

No abstract provided.

The Social Life Of Blood, Milk & Sperm, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Why The State Cannot “Abolish Marriage” A Partial Defense Of Legal Marriage Based On The Structure Of Intimate Duties, Gregg Strauss

Faculty Scholarship

Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Recently, several scholars have answered this question “no” and concluded that the state should abolish marriage, along with all other categories of intimate status. While politically infeasible, these proposals offer a powerful thought experiment. In this Article, I use this thought experiment to argue that the law cannot avoid relying on intimate status norms and has legitimate reasons to retain an intimate status like marriage.

The argument has three parts. First, even if the law abolished licensed status categories, ordinary doctrines in tort, contract and …

From Contract To Status: Collaboration And The Evolution Of Novel Family Relationships, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The past decade has witnessed dramatic changes in public atti- tudes about and legal status for same-sex couples who wish to marry. These changes demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships – cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists – might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social-welfare criteria for …

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

Children’S Health In A Legal Framework, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …

Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry

Faculty Scholarship

No abstract provided.

Confronting Totalitarianism At Home: The Roots Of European Privacy Protections, Hannah Bloch-Wehba

Faculty Scholarship

In the last several years, a consensus has developed that a wide gulf exists between European and American privacy law, although division still exists on whether European law is “more protective” or simply “home to different intuitive sensibilities” than American law. Existing research on the development of European privacy law has focused on two areas: nineteenth-century traditions of honor and dueling, which gave rise to a concept of privacy linked to dignity, and the totalitarian dictatorships of the twentieth century, in reaction to which privacy protected liberty. This Article offers a contrasting view by showing that European privacy law in …

Family Law And Nonmarital Families, Clare Huntington

Faculty Scholarship

No abstract provided.

Children's Health In A Legal Framework, Elizabeth S. Scott, Clare Huntington

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Faculty Scholarship

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

A substantive due process analysis required the Court to define marriage and explain its social importance. This meant the Court had to choose between competing images — social fronts — of marriage. If it had used an equal protection analysis, the Court would not have had to decide whether marriage is traditional or …

Non-Exclusive Adoption And Child Welfare, Joshua Gupta-Kagan

Faculty Scholarship

This Article proposes that child welfare law permit the non-exclusive adoption of foster children who cannot reunify with their parents — that is, adoption by foster parents without severing children’s legal relationships with their biological parents. Present law imposes a choice: extended family members or other foster parents may adopt foster children exclusively — and terminate the legal relationship between the child and biological parents — or they may become guardians — which preserves parent–child relationships but denies foster parents the legal title of “parent,” even when they are long-term primary caretakers.

Non-exclusive adoption would respect the lived reality of …

The New Permanency, Joshua Gupta-Kagan

Faculty Scholarship

Permanency is a pillar of child welfare law; children generally do better with legally permanent caretakers than in temporary foster care. Historically, when foster children cannot reunify with their parents, states have sought to terminate parental rights and find adoptive families. But recent legal reforms have created a continuum of permanency options, many of which permit ongoing legal relationships with biological parents and do not require termination of biological parents’ rights. Research has demonstrated that such options are as lasting as adoption, and can help more children leave foster care to legally permanent caretakers. This continuum promises to empower families …