Law Commons^™

In The Shadow Of A Myth: Bargaining For Same-Sex Divorce, Noa Ben-Asher

Faculty Publications

This Article explores a relatively new phenomenon in family law: same-sex divorce. The Article’s central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser’s terminology, they are not “bargaining in the shadow of the law.” Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex divorce.

The Article …

Reconsidering Substantive Canons, Anita S. Krishnakumar

Faculty Publications

This paper provides the first empirical study of the Roberts Court’s use of substantive canons in its statutory interpretation cases. Based on data from 295 statutory interpretation cases decided by the Roberts Court during its first six-and-a-half terms, the paper argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court. Substantive canons — such as the rule of lenity, the avoidance canon, or the presumption against extraterritorial application of domestic laws — have long been criticized as undemocratic judge-made rules that defeat congressional intent, …