Law Commons^™

Conflicts And Shifting Landscape Around Same-Sex Relationships, Hillel Y. Levin

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Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships.

In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like 2 and marriage-lite3 alternatives (i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) …

Social Security Benefits Formula 101: A Practical Primer, Francine J. Lipman

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No abstract provided.

Conflicts And The Shifting Landscape Around Same-Sex Relationships, Hillel Y. Levin

Scholarly Works

Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships. In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like and marriage-lite alternatives(i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) for same-sex …

When Reading Between The Lines Is Not Enough: Lessons From Media Coverage Of A Domestic Violence Homicide-Suicide, Elizabeth L. Macdowell

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In October 2008, Karthik Rajaram murdered his wife, mother-in-law, sons and, ultimately, himself, in a wealthy Los Angeles suburb. This Article analyzes media reports about the deaths to illustrate the resilience of patriarchy and significant gaps in research and scholarship about domestic violence, and suggests a strategic approach to building counter-narratives about violence against women.

The Article is composed of five parts. Part I is the Introduction. Part II draws on narrative theory and critical media scholarship to lay the groundwork for analysis, and to show why media coverage of homicide-suicide is implicated in the production of dominant ideology.

Part …

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

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We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …

Child Support And (In) Ability To Pay: The Case For The Cost Shares Model, Pamela Foohey

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Currently enacted child support guidelines primarily focus on maintaining children's economic well-being when a single household is split into two. This article argues that this focus discounts another consideration which, when combined with the current analysis, could further advance children's well-being: the ability of parents to pay. An analysis of payment characteristics demonstrates that lower child support obligations may increase the amount of child support paid on average. Lowering presumptive obligations will make lower-income parents better able and more likely to pay their obligations, thereby increasing the amount of child support paid to lower-income children, while at most only marginally …

Ketubah, The Marriage Contract Under Jewish Law, And Its Application In Secular Legal Systems, Marketa Trimble

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The article presents ketubah, an institute of Jewish law that is unknown in the current Czech academic literature; it describes its evolution and content, and the manner in which secular countries with large Jewish communities deal with it. Throughout the centuries ketubah achieved a standardized format that has been adjusted to local customs. Additionally, there are attempts to use ketubah to solve the problem of agunah – the problem of parties who have obtained a secular divorce but not a divorce under Jewish law because the other party prevented it. Some legal systems, such as those of the State of …

Same-Sex Marriage In New York, Lewis A. Silverman

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No abstract provided.

Standing In Babylon, Looking Toward Zion, Katherine R. Kruse

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This article defends the triumph of vision at the 2006 UNLV Conference on Representing Children in Families by examining the interrelationship between idealism and realism in the definition of lawyers' roles and the importance of idealized visions to the process of reforming dysfunctional systems. This article suggests that the vision of lawyering for children sketched in the UNLV Recommendations--though based in idealism--is both deeply realistic and ultimately practical. This article thus affirms the choice of the group of idealists who stood together for a few days in modern-day Babylon to keep their eyes trained on the vision of Zion as …

Expanding Collateral Sanctions: The Hidden Costs Of Aggressive Child Support Enforcement Against Incarcerated Parents, Ann Cammett

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Legal barriers or "collateral consequences" arising from criminal convictions came to the forefront of the legal and policy discourse at the dawn of the twenty-first century, as the population of people with criminal convictions skyrocketed. These barriers act as restrictions to post-incarceration reentry into society, including the resumption of employment, occupational licensing, access to housing and public benefits, driving privileges, educational loans, immigration, voting rights, and other means of economic survival and civic re-engagement.

What is barely examined are the ways in which these barriers affect family law, specifically in the area of child support and the debt accrued by …

Protecting Children From The Dark Side Of The Internet, Anne Dupre, John Dayton, Christine Kiracofe

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This article examines the history of judicial and legislative responses to the issue of consumption of pornography and other harmful materials over the Internet by children. The article begins by giving a brief overview of free speech law in the US. Next, summaries of relevant U.S. legislation and corresponding litigation on Internet free speech are given. Highlighted are: 1) the Communications Decency Act (CDA) and the U.S. Supreme Court’s response in Reno v. ACLU; 2) The Child Pornography Prevention Act (CPPA) and Ashcroft v. Free Speech Coalition; 3) the Children’s Internet Protection Act (CIPA) and United States v. American …

Harry Potter & The Law: Family Life And Moral Character, James C. Smith

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Harry Potter's mistreatment by his Muggle family does not amount to a legal wrong. Notice that Dumbledore did not threaten the Dursleys with legal proceedings, either in Muggle or Wizard tribunals. The ethic of equitable treatment is societal and lacks a legal basis in Anglo-American family law. Family law has many facets; it is an amalgam of legal rules and principles. My focus is the lens of property law -- in particular, family property norms -- although it is also plain that the Dursleys have not violated non-property based family law norms.

Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett

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The New Jersey Institute for Social Justice prepared this report in response to concerns about child support debt—in particular as it creates a barrier to employment for low-income parents and works at cross-purposes with the goals of the child support program. Drawing on examples from other states, this report identifies a range of policies that inform child support practice in New Jersey and offers administrative, legislative, and programmatic solutions to address child support arrears owed by low-income and incarcerated parents.

Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus

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Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating …

Attorneys' Perceptions Of Child Witnesses With Mental Retardation, Rebecca Nathanson

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Children with mental retardation are more likely to be abused than the general population, yet are often denied access to the justice system. Research on children without mental retardation has revealed skepticism as to their reliability as witnesses in the court of law. Even more so, children with mental retardation face the issue of credibility because of their age and disability. This study assesses attorneys' perceptions of child witnesses with mental retardation. Thirty-nine criminal attorneys completed a 33-item questionnaire designed to assess their opinions of the abilities of adults and of children with and without mental retardation to recall and …

Justice Miriam Shearing: Nevada's Trailblazing Minimalist, Mary E. Berkheiser

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Nevada Supreme Court Justice Miriam Shearing retired at the end of her second term on January 4, 2005. Over the nearly thirty years of her very public life on the bench, many have written of her accomplishments as the firs woman to enter the brotherhood of the Nevada judiciary. With Justice Sharing’s retirement, the time is ripe for an examination of her judicial decisions during the twelve years she served on the Nevada Supreme Court. The analysis here provides one perspective on her body of work. It begins, as it must, with a glimpse into the person behind the work.

Of Child Welfare And Welfare Reform: The Implications For Children When Contradictory Policies Collide, Kay P. Kindred

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On August 22, 1996, President Bill Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter, “PRWORA” or the “welfare reform law”), which replaced the Aid to Families and Dependent Children Program (“AFDC”), the nation’s primary cash-assistance program, with the Temporary Assistance to Needy Families Program (“TANF”), funded by block grants to states. PRWORA represented a dramatic change in social welfare policy in the United States. Among the many changes effected by the law in the nation’s social welfare programs were: (1) the increased authority of the states over cash-assistance programs for needy families, giving …

The Effects Of The Courtroom Context On Children’S Memory And Anxiety, Rebecca Nathanson

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Modifications of the courtroom environment have been proposed to enhance the ability of child witnesses to offer complete and accurate testimony and reduce system-induced stress. However, these interventions have often been conceived without the benefit of empirical data demonstrating intervention efficacy. The present study examines the effects of the courtroom context on children's memory and anxiety. Eighty-one eight- to ten-year-olds participated in a staged event involving bodily touch, and two weeks later their memory for the event was tested. Half of the children were questioned in a mock courtroom in a university law school, and half were questioned in a …

The Effects Of The Courtroom Context On Children's Memory And Anxiety, Rebecca Nathanson

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Modifications of the courtroom environment have been proposed to enhance the ability of child witnesses to offer complete and accurate testimony and reduce system-induced stress. However, these interventions have often been conceived without the benefit of empirical data demonstrating intervention efficacy. The present study examines the effects of the courtroom context on children's memory and anxiety. Eighty-one eight- to ten-year-olds participated in a staged event involving bodily touch, and two weeks later their memory for the event was tested. Half of the children were questioned in a mock courtroom in a university law school, and half were questioned in a …

Introduction To Symposium, The Rights Of Parents With Children In Foster Care: Removals Arising From Economic Hardship And The Predicative Power Of Race, Ann Cammett

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Professor Cammett introduces a symposium at the Association of the Bar of the City of New York exploring the predicament posed by the surge of child removals through neglect petitions, and the subsequent placement of those children in foster care. The panel’s published comments offer some poignant reflections on the crisis of the child welfare system.

Adult Guardianship In Georgia: Are The Rights Of Proposed Wards Being Protected? Can We Tell?, Eleanor Crosby Lanier

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National scrutiny of guardianship policies and practice by scholars and legal, health, and social service practitioners followed. This resulted in a succession of forums, studies, and recommendations aimed at improving the guardianship system. One such forum was the Wingspread conference, convened by the American Bar Association (ABA) in 1988. Experts from a variety of fields met to produce a groundbreaking set of recommendations for reforming guardianship. Wingspan, a second national guardianship conference addressing reform issues in 2001, produced in a second series of recommendations. The recommendations from these two conferences proposed greater protection for the proposed ward's liberty interests and …

Defining Marriage: What Ballot Question 2 Doesn’T Do, Mary Lafrance

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This article examines he oddly-worded initiative, which constituted Question 2 on Nevada’s 2002 ballot and explains how it was a bit of a puzzle, even two years after it was first sprung upon the electorate. Touted during its previous appearance in the 2000 election as a “definition of marriage,” this article shows how it is all too clear that the initiative was anything but that. Neither the initiative, nor any existing provision of Nevada law, made the slightest attempt to define marriage.

Restitching The American Quilt: Untangling Marriage From The Nuclear Family, Lisa Milot

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Part I of this Note will trace the various threads of American marriage law, particularly the perception that marriage is unraveling today due to an unprecedented divorce crisis. Part II will disentangle the conflicting patterns of contract law and status regimes that variously govern marriage, focusing on the uneven enforcement of antenuptial contracts and the implications of such. Part III will argue that the true focus of regulation is the status of the nuclear family, not of marriage per se. Finally, Part IV will propose a bifurcation of the legal regimes governing marriage and the family, recognizing the ability of …

Child Care For Families Leaving Temporary Assistance For Needy Families, Rebecca L. Scharf, Sujatha Jagadeesh Branch, Cynthia Godsoe, Sherry Leiwant, Roslyn Powell, Cary Lacheen

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Since Temporary Assistance for Needy Families (TANF) replaced the Aid to Families with Dependent Children program in 1996, the welfare rolls have decreased by more than 40 percent. While unemployment and poverty rates have declined, families who leave welfare generally earn low wages and remain below the poverty level. Because families leaving welfare are mostly single mothers with young children, child care is critical to their ability to work outside the home. Low-income parents trying to make ends meet, as well as employers of low-wage workers, emphasize the importance of appropriate, affordable child care in enabling women who leave welfare …

Vermont Civil Unions, Full Faith And Credit, And Marital Status, Lewis A. Silverman

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No abstract provided.

Weighing The Domestic Violence Factor In Custody Cases: Tipping The Scales In Favor Of Protecting Victims And Their Children, Kim Susser

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In 1996, the New York State Legislature attempted to afford additional protection to domestic violence victims and their children involved in custody disputes by amending New York's Domestic Relations Law and the Family Court Act to mandate consideration of domestic violence when determining the best interests of the child in custody and visitation cases. Four years later, it is evident that the amendment failed to change the behavior of the courts or overcome the entrenched attitudes of many judges, attorneys and forensic evaluators regarding domestic violence.

The first Part of this Article contains a brief overview of the case law …

Lies Between Mommy And Daddy: The Case For Recognizing Spousal Emotional Distress Claims Based On Domestic Deceit That Interferes With Parent–Child Relationships, Linda L. Berger

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This Article discusses whether courts should recognize spousal IIED causes of action based on intentional lies that interfere with the establishment or the continuation of parent-child relationships. The Article begins with an overview of the currents in family law and tort law that converge in domestic tort actions. Next, it reviews the current status of a particular domestic tort: spousal emotional distress. It then examines the evolution of emotional distress claims based on interference with parent-child relationships, moving from California's early and continuing rejection of these claims to the very recent recognition of these claims by other states. Finally, it …

Child Care In The Postwelfare Reform Era: Analysis And Strategies For Advocates, Rebecca L. Scharf, Jo Ann C. Gong, Alice Bussiere, Jennifer Light, Marc Cohan, Sherry Leiwant

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Adequate child care is essential to enable poor women to support their families with work outside the home. In 1994 the U.S. General Accounting Office found that offering a child care subsidy to poor mothers increased the likelihood by 15 percent that the mothers would work. An Illinois study found that 20 percent of parents who left public assistance for work returned to assistance because of child care problems. In Minnesota a study found that lack of child care caused 14 percent of parents awaiting child care subsidies to leave their jobs and rely on public assistance. These studies confirm …

When Equal Opportunity Meets Freedom Of Expression: Student-On-Student Sexual Harassment And The First Amendment In School, Kay P. Kindred

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Sexual harassment can take a variety of forms. It can be verbal, nonverbal or physical. Often it takes the form of hateful and harassing speech. In the AAUW Survey, 76% of the girls and 56 % of the boys surveyed had been the target of sexual comments, jokes, gestures or looks. Even when the harassment includes physical contact of some nature, it is typically accompanied or preceded by verbal harassment. While school officials and parents look for solutions to these problems, courts are struggling with the questions as well. In recent years, the problem of student-on-student sexual harassment has found …

Cloning And The Preservation Of Family Integrity, David Orentlicher

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No abstract provided.