Law Commons^™

United States: Deconstructing The American Family - Developments In Family Law During 1993, Lynn D. Wardle, Margaret F. Brinig

Journal Articles

Persons unfamiliar with the American legal system might be dismayed by the variety and inconsistency of developments in domestic relations law during 1993. The key to comprehending family law in the United States is to know that, within the broad parameters set by the Constitution and minimal federal legislation, each of the fifty American states retains substantial constitutional autonomy when regulating domestic relations. As a result, "a hundred flowers bloom" in American family law-in the form of tremendously varied (sometimes diametrically inconsistent) statutes, policies and doctrines. Despite national trends, novelties or developments of potentially broad interest that occur every year, …

A Maternalistic Approach To Surrogacy: Comment On Richard Epstein's Surrogacy: The Case For Full Contractual Enforcement, Margaret F. Brinig

Journal Articles

Many of the other participants in this Symposium have written extensively about surrogacy. Not only have they contributed to the debate, in some instances they have framed it. In some respects, therefore, I merely thank all of them and chime in. Unlike my fellow panelists, however, I do not think surrogacy merits an enthusiastic, positive response.

In this Comment, I propose to restate objections to specifically enforceable surrogacy contracts from a family-law perspective as well as from the philosophical or psychological roots of family law. I will then reexamine the problems of surrogacy from a contractarian, law-and-economics perspective, showing how …

Does Mediation Systematically Disadvantage Women?, Margaret F. Brinig

Journal Articles

When state legislatures enabled spouses to obtain divorces without proving fault, one of the real achievements was lower transaction costs. Although the benefit of lower transaction costs for divorce is not completely noncontroversial, the relaxed proof requirements mean that lawyers do not necessarily have to be involved in divorce proceedings. The vast majority of marriage dissolutions involve written agreements between the parties. No-fault divorce also energized the divorce mediation movement.

Mediation is the least intrusive form of third-party involvement in a dispute. Whereas a judge or arbitrator imposes an outcome on the disputants, the mediator assists the parties in reaching …