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Administering Marriage: Marriage-Based Entitlements, Bureaucracy And The Legal Construction Of The Family, Kristin Collins
Administering Marriage: Marriage-Based Entitlements, Bureaucracy And The Legal Construction Of The Family, Kristin Collins
Faculty Scholarship
Today marriage-based entitlements are considered part and parcel of marriage itself. This was not always the case. Mining hundreds of handwritten administrative records, executive branch reports, and federal statutes, this Article traces the origins of public marriage-based entitlements to an underexamined and surprisingly broad-scale system of early nineteenth-century federal military pensions and land grants that provided financial assistance to tens of thousands of widows. The story of widows’ military subsidies challenges claims to laissez-faire liberalism’s particular hold on the nineteenth century and, as important, evidences the complex mutually constitutive relationship between marriage law and social provision for women. While traditionally …
The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas
The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas
Faculty Scholarship
Sexual reproduction, also known as making babies the old-fashioned way, has always brought with it significant challenges for family law, especially regarding protecting the best interests of children, and the identification of parents with the right and responsibility to rear them. But these challenges often seem mundane in the face of what has evolved since physicians have been injected into baby making and thus into novel parent-child relationships. The addition of physicians and their "new" medical technologies, sometimes called Assisted Reproductive Technology (ART), have forced the law to reconsider the very definition of motherhood and have radically altered society's view …
Red Versus Blue (And Purple) States In The Same-Sex Marriage Debate: From Values Polarization To Common Ground?, Linda C. Mcclain
Red Versus Blue (And Purple) States In The Same-Sex Marriage Debate: From Values Polarization To Common Ground?, Linda C. Mcclain
Faculty Scholarship
What is the role of courts in circumstances of "values polarization"? The framing of this question brings to mind, but differs from, some familiar inquiries about the judicial role in circumstances of conscientious moral disagreement or value pluralism and debates about liberty, morality, and community. Using the conflict over whether civil marriage should extend to same-sex couples as an example, I contrast two recent analyses of values polarization and its implications for finding agreement, Ronald Dworkin’s book, Is Democracy Possible Here?, and June Carbone and Naomi Cahn's project, Red Families v. Blue Families. Dworkin's strategy is to identify shared principles …
Family Life, The Politics Of The Family, And Social Transformation, Linda C. Mcclain
Family Life, The Politics Of The Family, And Social Transformation, Linda C. Mcclain
Faculty Scholarship
Why do families matter? Is it simply because of their role in social reproduction, or does this ignore the personal goods, the benefits and burdens, of intimate life? Does an emphasis on the formative role of families risk treating them merely as serving the state and divert attention from the rights of persons to form families and the rights - and needs - of children to nurturing relationships? What kind of social and economic transformation would be necessary to implement a normative vision of family that supports families, is egalitarian, and respects diversity? What is the best way to rectify …
The Role Of The 'Natural Family' In Religious Opposition To Human Rights Instruments, Linda C. Mcclain
The Role Of The 'Natural Family' In Religious Opposition To Human Rights Instruments, Linda C. Mcclain
Faculty Scholarship
This chapter examines how the vision of the natural family articulated by several prominent conservativereligious organizations in the United States shapes their opposition to certain human rights instruments. TheUnited Nations' 1989 Convention on the Rights of the Child seems to reflect an advance in internationalhuman rights formulations and to have generated a high degree of formal commitment by governments, as evidenced by its quick and virtually universal ratification. However, the United States stands nearly alone innot having ratified the Convention, and the religious groups examined in this chapter strenuously urge that it should not do so, lest it undermine the …
Women's Place: Urban Planning, Housing Design, And Work-Family Balance, Katharine B. Silbaugh
Women's Place: Urban Planning, Housing Design, And Work-Family Balance, Katharine B. Silbaugh
Faculty Scholarship
In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. 'Place' is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead …
The 'Male Problematic' And The Problems Of Family Law: A Response To Don Browning's 'Critical Familism', Linda C. Mcclain
The 'Male Problematic' And The Problems Of Family Law: A Response To Don Browning's 'Critical Familism', Linda C. Mcclain
Faculty Scholarship
This essay explores the relationship between the male problematic and the problems of family law. The problem of fatherhood, or what religion scholar and marriage movement leader Don Browning calls the male problematic, is a central concern of that movement. The premise is that marriage addresses a core societal challenge - binding men to the mothers of the children they foster and securing men's paternal investment in those children. The essay responds to Browning's review (in 56 Emory Law Journal 1383 (2007)) of my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006), in which …
What Place For Marriage (E)Quality In Marriage Promotion?, Linda C. Mcclain
What Place For Marriage (E)Quality In Marriage Promotion?, Linda C. Mcclain
Faculty Scholarship
The place of marriage in a just and fair constitutional democracy reverberates as one of the most challenging questions posed in debates over family law and policy. Should government properly support and promote marriage, defined as the union of one man and one woman, as the proxy for the form of family best able to undergird our polity by allowing realization of the goods associated with family life and carrying out the important functions society assigns to families? Or is marriage's privileged place undeserved because it is an imperfect and inadequate proxy for these purposes. This article argues that, although …
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
Faculty Scholarship
The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil …
'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain
'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain
Faculty Scholarship
Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …
Federalism's Fallacy: The Early Tradition Of Federal Family Law And The Invention Of States' Rights, Kristin Collins
Federalism's Fallacy: The Early Tradition Of Federal Family Law And The Invention Of States' Rights, Kristin Collins
Faculty Scholarship
By examining the history of the federal government's role in the regulation of the family, this article joins the work of others who in recent years have begun to piece together the history of the federal government's role in crafting domestic relations law and policy.'8 Much of this attention has focused on federal involvement in domestic relations in the late nineteenth and early twentieth centuries, with relatively less consideration given to the pre-Civil War period. Though recent contributions to this field have helped to cure this imbalance, 19 there remains a strong sense, especially among lawyers and judges, that …
The Practice Of Marriage, Katharine B. Silbaugh
The Practice Of Marriage, Katharine B. Silbaugh
Faculty Scholarship
Over the past 40 years, robust law has developed addressing the treatment of non-marital cohabitants. Consequently, the government's gatekeeping role operates somewhat differently than before. States are now more clearly policing the social benefits and the symbolism accompanying marriage, having agreed to provide many of its legal benefits to non-marital couples. This article investigates the state's current role in articulating and managing, as well as responding to, the social meaning of marriage in the context of three recent high profile cases: the prosecution of polygamist Tom Green, the Goodridge same sex marriage case in Massachusetts, and the challenge to Michael …
Is The Work-Family Conflict Pathological Or Normal Under The Fmla? The Potential Of The Fmla To Cover Ordinary Work-Family Conflicts, Katharine B. Silbaugh
Is The Work-Family Conflict Pathological Or Normal Under The Fmla? The Potential Of The Fmla To Cover Ordinary Work-Family Conflicts, Katharine B. Silbaugh
Faculty Scholarship
The Family and Medical Leave Act (FMLA) provides relief to workers, helping them in their struggle to meet the sometimes competing demands of work and family. There have been numerous attempts to expand legislation to cover more occasions where work and family obligations are in tension. This Essay will address one way that the courts may be expanding the Act’s application. It will investigate whether this modest interpretive expansion can be explained partially by society’s deeper understanding of the challenges of work-family balance over the ten years since the FMLA’s passage. Have we changed our general understanding of conflicts between …
Intimate Affiliation And Democracy: Beyond Marriage?, Linda C. Mcclain
Intimate Affiliation And Democracy: Beyond Marriage?, Linda C. Mcclain
Faculty Scholarship
This article takes up the question: Should family law and policy move beyond marriage? It assesses a spectrum of answers to that question. Rejecting proposals, on the one hand, to shore up traditional marriage, and, on the other, to abolish marriage, it argues that family law and policy should not move wholly beyond marriage, but should support marriage in a way that better fosters greater equality within and among families. The article is part of a symposium on "Marriage, Families, and Democracy," published in 32 Hofstra Law Review 23-421 (2003).
Care As A Public Value: Linking Responsibility, Resources, And Republicanism, Linda C. Mcclain
Care As A Public Value: Linking Responsibility, Resources, And Republicanism, Linda C. Mcclain
Faculty Scholarship
I begin this Article with the preceding two statements concerning care for children because they focus on the relationship between resources and responsibility and capture two conflicting approaches to that relationship. The first statement resists a definition of "responsibility" that leaves out the work of social reproduction, that is, of caring for children and preparing them to take their place as responsible, self-governing members of society. Highlighting the lack of resources that poor parents face when tackling the work of social reproduction, the statement also suggests common ground among parents across class lines as to the importance of caring for …
When Fathers' Rights Are Mothers' Duties: The Failure Of Equal Protection In Miller V. Albright, Kristin Collins
When Fathers' Rights Are Mothers' Duties: The Failure Of Equal Protection In Miller V. Albright, Kristin Collins
Faculty Scholarship
The history of coverture and the transmission of American citizenship brings an elementary point into focus: The allocation of parental rights is always correlated with the allocation of parental responsibility. This basic legal truism, and its numerous implications for citizenship law, suggests that the principal gender injustice caused by § 1409 is not its truncation of fathers' rights, but its creation and perpetuation of a legal regime in which mothers assume full responsibility for foreign-born nonmarital children. Once we recognize this gendered operation of § 1409, broader failures of equal protection analysis come into relief. First, while the jurisprudential understanding …
Foreword, Katharine B. Silbaugh
Foreword, Katharine B. Silbaugh
Faculty Scholarship
This special section of The Boston University Public Interest Law Journal addresses the issue of transracial adoptions. Few topics within family law generate as much controversy as the placement of Black or other minority and mixed race children for adoption with white families. Although transracial placement could in theory apply to the placement of white children with mixed race and Black families, in practice it has not. The predominant practice of matching adoptive children with adoptive parents of the same race has come under increasing scrutiny in recent years as many older and difficult to place minority children wait in …
'Irresponsible' Reproduction, Linda C. Mcclain
'Irresponsible' Reproduction, Linda C. Mcclain
Faculty Scholarship
In recent years, there have been countless calls for reversing the rise in irresponsibility in American society.' Calls for restoring personal responsibility in both private and political life sound from both of the major political parties as well as from various cultural critics, pundits, and academics. 2 Proponents of a return to personal responsibility wage their battle on numerous fronts, advocating a cultural revolution, a moral revival, and a recovery of "virtue" to bring about a reformation of attitudes and behaviors regarded as troublesome. 3 Many voices now urge that law and public policy should encourage, or require, personal responsibility …
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Faculty Scholarship
This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.1 In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. 2 Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, 3 thus settling a controversial …
Mapping The Human Genome And The Meaning Of Monster Mythology, George J. Annas
Mapping The Human Genome And The Meaning Of Monster Mythology, George J. Annas
Faculty Scholarship
Pre-Columbian cartographers drew their maps to the extent of their knowledge, and then wrote in the margins, "Beyond this point there are dragons." With the voyage of Columbus, we lost both our fear of the geographic frontier and our innocence. We accept that knowledge can generally overpower fear; but we have also learned that the application of new knowledge often has a dark side that can lead to brutality and disaster. The discovery of America, for example, led to unforeseen value conflicts of justice and fairness involving native Americans that were "resolved" only by their merciless subjugation and genocidal destruction. …
The Inapplicability Of Market Theory To Adoptions, Tamar Frankel
The Inapplicability Of Market Theory To Adoptions, Tamar Frankel
Faculty Scholarship
Judge Posner addresses an important issue. More than 130,000 couples in this country want to adopt children, and plenty are available. But most couples want healthy, white infants, and those children are in short supply. To get the child of their choice, these couples are forced to pay large sums of money to intermediaries. On the other hand, many unwed, teenage women face unwanted pregnancies. Many of them opt for abortion, which is relatively inexpensive, or for carrying to term and raising the children themselves, which is governmentally subsidized. But few of these women choose to have the child and …
Parents' Rights And Juvenile Court Jurisdiction: A Review Of Before The Best Interests Of The Child, Stanley Z. Fisher
Parents' Rights And Juvenile Court Jurisdiction: A Review Of Before The Best Interests Of The Child, Stanley Z. Fisher
Faculty Scholarship
This new book1 by the authors of Beyond the Best Interests of the Child2 also makes a major contribution to the field of family law. Concentrating this time on the subject of child neglect and abuse, the authors mount a powerful attack on state intrusion into families under current child protection laws. Like Beyond the Best Interests, this book has attracted wide attention and provoked intense controversy. It should be read by all those concerned about the law's impact on children and families.
Families With Service Needs: The Newest Euphemism, Stanley Z. Fisher
Families With Service Needs: The Newest Euphemism, Stanley Z. Fisher
Faculty Scholarship
Juvenile court jurisdiction over "status offenders" - juveniles engaging in noncriminal misconduct such as truancy, running away, and "incorrigibility" - has become the subject of national debate. Most participants in the many-sided discussion agree that the system needs reform. The major disagreement, however, is between those who wish merely to reform the court's jurisdiction over this conduct, and those who would substantially eliminate it. This article concerns the newest reform proposal: to revise status offense jurisdiction under a new category entitled "Families With Service Needs" (FWSN). Proposed in 1977 by a federally funded task force, 5 the FWSN concept has …
Deductibility Of Expenses For Child Care And Household Services: New Section 214, Alan L. Feld
Deductibility Of Expenses For Child Care And Household Services: New Section 214, Alan L. Feld
Faculty Scholarship
It is increasingly common to find families composed of husband, wife and young children, where both husband and wife are gainfully employed. For some, this pattern is regarded as preferable to the older "ideal" family, where the husband was the sole breadwinner and the wife cared for the children, performed household chores and perhaps engaged in social or charitable activities. Where both spouses are gainfully employed, it is often necessary for the family to employ household help to care for the children and do the housework. These expenditures are "necessary" to the gainful employment of both spouses in the sense …