Law Commons^™

Losing The Struggle For Another Voice: The Case Of Family Law, Carol Smart

Dalhousie Law Journal

This paper is based on empirical work in progress concerning co-parenting and the ways in which mothers and fathers organize the care of children after separation. It deals with two foundational issues: Gilligan's concept of "another voice" and its congruence with recent developments in family law in the United Kingdom and otherdeveloped countries including Canada and the United States. The author concludes that the ethic of care incorporated in the British legislation and given some expression in the judicial system does not fully recognize two kinds of caring. There is caring about and caring for. The caring about of fathers …

Alaska Supreme Court And Court Of Appeals Year In Review 1994, Laura E. Fahey, Steven D. Moore, James P. Ursomarso

Alaska Law Review

No abstract provided.

Love It Or Leave It: Property Rules, Liability Rules, And Exclusivity Of Remedies In Partnership And Marriage, Saul Levmore

Law and Contemporary Problems

A claim for "final accounting" as a partner's exclusive remedy is a traditional rule in partnership law, but this rule can be unfair and inefficient. The evolution of the rules of partnership law away from the love-it-or-leave-it, or "exclusivity," tradition is discussed, and traditional partnership law is compared to domestic relations and to corporate law.

Why Teach International Family Law In Conflicts?, William L. Reynolds

Faculty Scholarship

[The author] sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignorning international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

Models For Parenthood In Adoption Law: The French Conception, Laura J. Schwartz

Vanderbilt Journal of Transnational Law

According to Ms. Schwartz, adoption in the United States is currently in a state of disarray and confusion because it has not achieved a satisfactory balance between biological and psychological parent-child relationships. U.S. adoption law has never adequately evaluated the relative importance of both types of relationships to the process of family formation. In contrast, although French adoption faces many of the same challenges as U.S. adoption, the French adoption process is not riddled with the same inconsistency and indeterminacy. Instead, French adoption law and government family policy reflect a societal consensus on the central and intrinsic importance of biological …

The United Nations International Conference On Population And Development: Religion, Tradition, And Law In Latin America, Gregory M. Saylin

Vanderbilt Journal of Transnational Law

At the 1994 United Nations International Conference on Population and Development, the Vatican, along with several Latin American and Muslim nations, fought against First World nations that sought to include provisions relating to abortion, contraception, sexual education, and women's issues in the Conference's Program of Action. Universal agreement was not reached and several nations, including the Vatican, refused to completely join the Program of Action.

This Note examines the history and theory behind the United Nations population conferences. Against this background, the author examines the 1994 Conference and considers its effect on Latin America by discussing the religion, tradition, and …

Beyond Biology: The Politics Of Adoption & Reproduction, Elizabeth Bartholet

Duke Journal of Gender Law & Policy

It is exciting simply to be having this conference focused on adoption law and policy. I remember some nine years ago starting to plan a course dealing with adoption issues and wondering whether I would be able to justify its place in the Harvard Law School curriculum. It is also exciting to look around the room at the wonderfully diverse and knowledgeable group of people the Duke Journal of Gender Law & Policy gathered here to participate in these discussions of important issues involving adoption and the meaning of family. My topic today has to do with adoption and, more …

Parental Rights Vs. Best Interests Of The Child: A False Dichotomy In The Context Of Adoption, Annette R. Appell, Bruce A. Boyer

Duke Journal of Gender Law & Policy

I. Introduction: Identifying the Controversy The mythology of adoption involves a scenario in which a teenage girl gets pregnant, and neither she nor the father is ready to raise a child. Upon birth, these young parents voluntarily relinquish the baby to an upwardly mobile couple who have been waiting years to adopt. The adoptive parents become, in essence, the birth parents to the baby who grows up happy and well-adjusted. The birth parents vanish from the picture, perhaps eventually marrying and having additional children. No one looks back. But what happens to this myth when the birth mother changes her …

Controlling Improper Financial Gain In International Adoptions, Kristina Wilken

Duke Journal of Gender Law & Policy

When I went with the lawyer to pick up Kate--some part of town I could never find again--her mother was lying there, not in a house really, more like a stall with a bed in it. . . . It was like we were going baby shopping. 1 Although once rarely contemplated, international adoption has become a realistic option for couples in the United States. In fact, the United States has received more foreign children for adoption than any other country in the world. 2 Since the first wave of international adoptions in the late 1940s, 3 over 130,000 children …

Race Separatism In The Family: More On The Transracial Adoption Debate, Elizabeth Bartholet

Duke Journal of Gender Law & Policy

Some twenty-five years ago a trial court in Virginia upheld the state ban on interracial marriage, reasoning that God created different races and, accordingly, that it was natural to maintain racial purity, and unnatural to engage in racial mixing. 1 At that time, many other state laws banned both interracial marriage and transracial adoption. In Loving v. Virginia, 2 the United States Supreme Court struck down the Virginia antimiscegenation law, reversing the trial court's decision and holding that it was unconstitutional for states to mandate racial separatism in the family. Later, in Palmore v. Sidoti, 3 the Court ruled that …

Are You My Mother?: Conceptualizing Children’S Identity Rights In Transracial Adoptions, Barbara Bennett Woodhouse

Duke Journal of Gender Law & Policy

I. Adoption and the Clash of Rights Perspectives Adoption law in the United States, depending on whom you ask, is either at a turning point or hopelessly gridlocked. 1 Many issues seem to defy consensus. Media reports of high profile adoption cases 2 have attracted enormous attention, not only because of their inherent drama, but also because they implicate highly contested definitions of what makes a family. Many of the most volatile adoption issues are couched in terms of rights: the birth mother's right to confidentiality; the adoptive parent's right to be treated equally without regard to race, ethnicity, religion, …

Adoption Of Minor Children By Lesbian And Gay Adults: A Social Science Perspective, Charlotte J. Patterson

Duke Journal of Gender Law & Policy

Does adoption of minor children by openly lesbian or gay adults serve the best interests of children? Although forbidden in some jurisdictions, 1 such adoptions have taken place in other parts of the country. Considerable public controversy continues to surround adoptions by lesbian and gay parents. 2 In this article, I begin with a description of two actual adoptions which illustrate the difference between stranger adoptions, in which the biological parent's rights are terminated, and second parent or co-parent adoptions, in which a second person becomes a legal parent without terminating the legal or biological parent's rights. In this way, …

Redefining The Transracial Adoption Controversy, Ruth-Arlene W. Howe

Duke Journal of Gender Law & Policy

I. Introduction Transracial adoption is a sensitive topic, evoking acrimonious debate "between those who view transracial placements as positive for both the children and society as a whole and those who view them as injurious to Black children and Black communities." 1 Efforts to declare race-matching preference policies or statutory schemes unconstitutional are intensifying. 2 Some legal writers assert that such a prohibition is needed in order to avoid or minimize harm to Black 3 youngsters in the foster care system. 4 In a re cent law review article analyzing the same-race statutory preference schemes of three states, the commentator …

Second Parent Adoption: A Model Brief, Suzanne Bryant

Duke Journal of Gender Law & Policy

The Liberal Judicial Construction of State Adoption Laws Allows Courts to Grant Second Parent Adoptions to Lesbian and Gay Adults I. Introduction: Second Parent Adoptions A second parent adoption refers to the adoption of a child by his or her legal parent's 1 non-marital partner, without requiring the first partner to give up any parental rights or responsibilities. 2 In second parent adoptions, as in step-parent adoptions, the child is already living in the couple's home and will continue to live there. In both types of adoptions, a non-legal parent has a relationship with the child and wishes to adopt …

Adoption And Aspiration: The Uniform Adoption Act, The Deboer-Schmidt Case, And The American Quest For The Ideal Family, Joan Heifetz Hollinger

Duke Journal of Gender Law & Policy

When the state must designate a child's legal parentage, should the goal be to protect the biological parents' "opportunity interests" to raise "their" child or to protect the child's established relationships with the individuals who have actually functioned as her parents? What characteristics render an adult an appropriate parent? These questions, long in the background of disputes over adoption, have been raised with new intensity in the early 1990s in two distinctive settings. The first is the debate about these questions waged in the courts and the media. The second is the effort of the National Conference of Commissioners on …

S. 1224—In Support Of The Multiethnic Placement Act Of 1993, Howard M. Metzenbaum

Duke Journal of Gender Law & Policy

Anyone who knows me, friend or foe, will tell you that one of my great passions in life is children. They represent the best in all of us and our best hope for the future. All my life I have pursued policies to ensure that all children, no matter what the circumstances of their birth, are treasured and nurtured. Whether it is a baby born with AIDS and addicted to crack, or my own wonderful grandchildren, I want to do everything in my power to make sure that every child grows up in a loving, caring, stable, and safe environment. …

Adoption By Lesbian And Gay People: The Use And Mis-Use Of Social Science Research, Marc E. Elovitz

Duke Journal of Gender Law & Policy

In the past twenty years, openly lesbian and gay people have joined in the evolving national dialogue, within the law and elsewhere, about adoption. This Article considers the adoption dialogue, addressing in particular the facts and beliefs that sometimes form (both by informing and misinforming) the dialogue. Part I of this Article describes the ways in which lesbian and gay people confront adoption's legal structures. Part II discusses the findings of social science research on parenting by lesbian and gay people. Part III reviews and analyzes some of the responses to this research. The Conclusion considers the nature of the …

Why Teach International Family Law In Conflicts?, William L. Reynolds

Vanderbilt Journal of Transnational Law

Professor Reynolds sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignoring international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

Moreover, this Article suggests several additional reasons for including international family law in the general conflicts course. First, litigants entangled in divorce and custody proceedings with international complications face high financial and emotional costs; …

Jurisdictional Conflicts Between Juvenile Courts And Child Welfare Agencies: The Uneasy Relationship Between Institutional Co-Parents, Bruce A. Boyer

Maryland Law Review

No abstract provided.

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 …

Pillow Talk, Richard Hyland

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Balancing Acts: Crisis, Change, And Continuity In American Family Law, 1890-1990, Michael Grossberg

Articles by Maurer Faculty

No abstract provided.

Substantive Due Process And Parental Corporal Punishment: Democracy And The Excluded Child, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.