Law Commons^™

Equal Protection In Dobbs And Beyond: How States Protect Life Inside And Outside Of The Abortion Context, Reva Siegel, Serena Mayeri, Melissa Murray

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In two paragraphs at the beginning of Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi’s abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief’s arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case …

Youth And Families Matter: Reconstructing The System One Youth At A Time From The Expertise Of Youth Advocates, Marcia Hopkims, Kara Finck, British Christopher, Duane Price, Anthony Simpson, Ishale Watson

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A group of youth advocates were tasked with discussing their experiences in the child welfare system as children and their perspectives on reforming the system. Informed by their experiences in foster care and work with the Juvenile Law Center, the youth advocates addressed issues of racism, reform, abolition, and child well-being. They concluded that meaningful reform of the child welfare system mandates a radical realignment of power to provide full participation, collaboration, and shared decision-making authority to families impacted by the child welfare system.

Keynote: How I Became A Family Policing Abolitionist, Dorothy E. Roberts

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This piece is a written version of Professor Dorothy Roberts' keynote speech at the Columbia Journal of Race and Law's 11th annual symposium, titled Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being.

What Is Nonmarriage?, Katharine Baker

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As rates of cohabitation rise, and marriage becomes a status reserved almost exclusively for socio-economic elites, the scholarly calls for family law to recognize more nonmarital families grow stronger by the day. This Article unpacks contemporary proposals to recognize more nonmarital families and juxtaposes those proposals with family law’s contemporary marital regime. Family law’s status-based system provides a mostly simple and efficient means of distributing resources at the end of a marriage by imposing a formulaic, but distinctly communitarian, non-market-based approach to obligation, entitlement, and value. In full, the Article defends family law’s status-based system for what it does well, …

Responding Effectively To Trauma Manifestations In Child Welfare Cases, Rebecca Stahl

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This article defines trauma and how it manifests in the dependency court system. Trauma is prevalent in child welfare cases and all of the professionals on these cases can respond to the trauma they see and experience more effectively through a better understanding of how to regulate the nervous system and the body. Trauma often manifests as difficult behaviors in the dependency court world, but there is a lack of information for effective strategies to deal with it. This article discusses how families and professionals experience trauma in dependency court and provides tools rooted in a physiological understanding of trauma. …

The Harm Of Child Removal, Shanta Trivedi

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When the state proves or even merely alleges that a parent has abused or neglected a child, family courts may remove the child from the parent’s care. However, research shows separating a child from her parent(s) has detrimental, long-term emotional and psychological consequences that may be worse than leaving the child at home. This is due to the trauma of removal itself, as well as the unstable nature of, and high rates of abuse in, foster care. Nevertheless, the child welfare system errs on the side of removal and almost uniformly fails to consider the harms associated with that removal. …

Promoting Permanency And Human Rights, Lauren Bartlett

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An increasing number of children are being cared for exclusively by grandparents or extended family. The majority of these caregivers are raising children outside of the foster care system without a formal legal status. In fact, kinship diversion, placing children whose parents cannot or will not care for them with family or friends outside of the foster care system, is encouraged by state and federal law. Informal kinship caregivers face many obstacles to providing care for children and they are more likely to be unemployed, receive government benefits, and be less educated, as compared with parents raising their own children. …

Religious Issues In Child Welfare Cases, Rebecca Stahl

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No abstract provided.

Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad

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The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as …

An Immodest Proposal For Birth Registration In Donor-Assisted Reproduction, In The Interest Of Science And Human Rights, Elizabeth Samuels

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No abstract provided.

Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman

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This article marks the 30th anniversary of the Supreme Court of New Jersey’s Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be …

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

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The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

When Law Is Complicit In Gender Bias: Ending De Jure Discrimination Against Women As An Important Target Of Sustainable Development Goal 5, Rangita De Silva De Alwis

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Ending all forms of discrimination against women and girls is not only a basic human right, but also crucial to accelerating sustainable development. The very first target of Goal 5. 1.1 calls to end all forms of discrimination against all women and girls everywhere and the indicator for the goal is: “Whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex”. In many countries around the world the legal frameworks themselves allow for both direct (de jure) and indirect (de facto) discrimination against women. This essay identifies some areas …

Editorial Notes: April 2017, Barbara A. Babb

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This issue of Family Court Review (FCR) begins by honoring the life and memory of Ruth Stern, former Managing Editor of Family Court Review, who passed away in October, 2016. Her husband, Professor Herbie DiFonzo, offers glimpses into Ruth's life and their life together. Coming from a baseball family myself, I am particularly moved by Ruth's and Herbie's mutual passion for the New York Mets. It is obvious from the details Herbie graciously shares that theirs was a love and a life of unique tenderness and togetherness. I am deeply grateful to Herbie for allowing us the privilege to publish …

Editorial Notes: January 2017, Barbara A. Babb

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I am extremely honored to write my first “Editorial Notes” for Family Court Review, and I am most grateful to the Association of Family and Conciliation Courts (AFCC) Board of Directors for appointing me to succeed Professor Andrew Schepard. I have been a devoted reader of and contributor to FCR (and its predecessor journals) for many decades, and I have been a committed AFCC member since the early 1990s. Although I doubt anyone can fill Professor Schepard’s shoes, I certainly plan to try my best to follow in his incredibly large footsteps. He is a dear friend and colleague with …

The Elective Share Has No Friends: Creditors Trump Spouse In The Battle Over The Revocable Trust, Angela M. Vallario

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A revocable trust is a popular estate planning tool used to disinherit a spouse in sixteen jurisdictions. In common law jurisdictions, a surviving spouse, who is dissatisfied with his or her inheritance, has the right to receive an elective share of the decedent's estate regardless of the decedent's estate plan. However, sixteen jurisdictions have defined a dissatisfied spouse's rights with a fractional share of the deceased spouse's "net probate estate," allowing one spouse to disinherit the other, by single-handedly transferring his or her assets to a revocable trust. To add insult to injury seven of these common law jurisdictions have …

Quacking Like A Duck? Functional Parenthood Doctrine And Same-Sex Parents, Katharine Baker

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Part I of this article introduces the tension between constitutionally protected parental autonomy rights and functional parent doctrine by examining the constitutional rights of parents. This examination demonstrates how the marital status of a parent has a substantial impact on the strength of that parent's constitutional rights. In cases in which there are two unmarried (never married or divorced) parents, neither parent has particularly robust constitutionally protected autonomy rights because both parents have competing constitutional rights that must be balanced against each other. Each parent has the right to invoke a court's jurisdiction in vindication of his or her own …

Crossing Two Color Lines: Interracial Marriage And Residential Segregation In Chicago, Dorothy E. Roberts

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Residential segregation and antimiscegenation were interwined means of maintaining an unequal racial order, challenging both sociological theories about immigrant assimilation and upward mobility and legal theories about the significance of interracial marriage for racial equality.

Intersectionality And The Constitution Of Family Status, Serena Mayeri

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Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less …

Why Baby Markets Aren’T Free, Dorothy E. Roberts

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Creating families in the twenty-first century increasingly happens in markets where the buying and selling of reproductive goods and services are facilitated by advanced technologies, the internet, contracts, and state laws and policies. Thus, the title of this international congress—“Baby Markets”—aptly captures a key aspect of modern reproduction. The ability of potential parents to engage in market transactions involving children enhances parents’ autonomy over their family lives. The free market seems to liberate us from the constraints of biology and state control.

This Essay argues, however, that baby markets aren’t free. Three aspects of the way reproductive goods and services …

Another Look At The Need For Family Law Education Reform: One Law School's Innovations, Barbara A. Babb

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The pressing need to change family law education stems from increased numbers and types of family law matters before the courts, changing legal standards, and the evolution of family law practice. The Family Law Education Reform Project, the Families Matter Report, and the IAALS Family Bar Summit recommend that traditional family law education be supplemented to reflect the importance of a holistic blend of theory and practice. This involves expanding student clinical or experiential programs, incorporating interdisciplinary studies specific to the context of family law, and enhancing continuing legal education opportunities. As one law school example, the University of Baltimore …

The Dna Default And Its Discontents: Establishing Modern Parenthood, Katharine Baker

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Most contemporary family law scholarship assumes that propriety of a DNA default for establishing parenthood - a presumption that, in the absence of marriage, whoever had the sex with the mother that resulted in the child should be the father of the child. This article problematizes that DNA default. It demonstrates how the DNA default necessarily magnifies the legal and social importance of sex, discounts the legal significance of women's reproductive labor, and marginalizes all children living outside the binary, heteronormative norm that a genetic regime necessarily edifies. When scrutinized, the DNA default looks just as moralistic and exclusionary as …

The Role Of Personal Laws In Creating A “Second Sex”, Rangita De Silva De Alwis, Indira Jaising

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The cultural construction of gender determines the role of women and girls within the family in many societies. Gendered notions of power in the family are often shrouded in religion and custom and find their deepest expression in Personal Laws. This essay examines the international law framework as it relates to personal laws and the commonality of narratives of litigators and plaintiffs in the cases from the three different personal law systems in India.

Foundling Fathers: (Non-)Marriage And Parental Rights In The Age Of Equality, Serena Mayeri

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The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however. Although unwed fathers won unprecedented legal rights and recognition in a series of Supreme Court cases decided in the 1970s and 1980s, they failed to achieve constitutional parity with mothers or with married and divorced fathers. This Article excavates nonmarital fathers’ quest for equal rights, until now a mere footnote in the history of constitutional equality law.

Unmarried fathers lacked a social …

Moving Family Dispute Resolution From The Court System To The Community, Jane C. Murphy, Jana B. Singer

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Over the past three decades, there has been a significant shift in the way the legal system approaches and resolves family disputes. Mediation, collaboration, and other non-adversarial processes have replaced a traditional, law-oriented adversarial regime. Until recently, however, reformers have focused largely on the court system as the setting for innovations in family dispute resolution. But our research suggests that courts may not be the best places for families to resolve disputes, particularly disputes involving children. Moreover, attempting to turn family courts into multi-door dispute resolution centers may detract from their essential role as adjudicators of last resort and forums …

Maryland's Family Divisions Are A Model For Change, Barbara A. Babb, Gloria Danziger, Michele H. Hong-Polansky

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In fiscal year 2014, 43 percent of all cases filed in Maryland’s trial court of general jurisdiction (the circuit court) were family law cases (Court Operations Department, 2014: CC-5). Historically, Maryland courts, like many states’ family justice systems, lacked a uniform structure to consolidate family law issues for an individual family. As a result, families often faced multiple hearings before different judges in different courtrooms to address a variety of issues, such as divorce, domestic violence, delinquency, and child abuse/neglect. This system created tremendous hardship for families (particularly low-income families, many of whom were self-represented litigants) and resulted in fragmented …

Marriage Equality And Marital Supremacy, Serena Mayeri

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No abstract provided.

Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri

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In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history …

Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy

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In the wake of the unrest over police misconduct in cities across the country, calls for reform have focused on the criminal justice system — making police, prosecutors, and criminal courts more accountable and just. While much work needs to be done in that arena, too little attention has focused on the ways in which low income families are hurt in civil courts. Many more men, women and children from low income communities of color pass through the doors of our family courts every day than those who interact with the criminal justice system. Some come to court as a …

Dna By The Entirety, Natalie Ram

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The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily …