Law Commons^™

Marital Status And Privilege, Laura Rosenbury

Laura A. Rosenbury

This essay challenges the privilege attaching to marriage as a distinct form of relationship. Responding to Angela Onwuachi-Willig’s new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, the essay identifies the legal and extralegal privileges flowing not just to monoracial marriage but to marriage. States recognize and support one form of relationship between adults to the exclusion of all others, creating privilege that flows outside of the home into the workplace and beyond. Instead of arguing that such privilege should be distributed more equally between monoracial and multiracial couples, this essay seeks to …

The Crisis Of Child Custody: A History Of The Birth Of Family Law In England, Danaya Wright

Danaya C. Wright

This article attempts to show that the inter-spousal custody cases of the nineteenth century created such a crisis in equity that they eventually demanded a new court structure and a new set of legal doctrines. The custody cases posed such a profound threat to the stability and authority of the Chancery courts that within fifty years an entirely new court system was required. That court system combined the tripartite jurisdictions of the law, equity, and ecclesiastical courts in matrimonial matters. While many scholars and historians have applauded that moment, I would suggest that the new court was merely a way …

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret Brinig, Linda Mcclain

Margaret F Brinig

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs. A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be …

The Trouble With Inclusion, Yuvraj Joshi

Yuvraj Joshi

Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary …

Op-Ed: Worth Worrying About? Same-Sex Marriage & Religious Freedom - Commonweal, July 17, 2013, Richard Garnett

Richard W Garnett

Op-ed: Worth Worrying About? Same-Sex Marriage & Religious Freedom in Commonweal The late-June release of the Supreme Court’s more controversial or culturally salient decisions has become a major media event—like the Oscars, or the election-day tallying of the midnight ballots from Dixville Notch. Refreshing, if archaic, rules prohibiting cameras and live broadcasting from the Court cause tens of thousands to glue themselves to celebrity law-reporters’ Twitter feeds and the SCOTUSBlog webcast.

The Legacy Of Jane Larson: The Politics Of Practicality And Surprise, Martha Ertman

Martha M. Ertman

Jane Larson's work and life enriched my own and others. Her intellectual framework - applying legal economic ideas of consent to feminist theory, backed up by legal history - suggest surprising practical solutions to problems ranging from the injuries of adultery and prostitution to housing in border towns.

The Law Of The Land: Will Gay Marriage Change Marriage, And If So, How?, Martha Ertman

Martha M. Ertman

This panel, moderated by Naomi Cahn, included presentations by Martha Ertman, Liza Mundy, and Jonathan Rauch.

Gay Parenthood And The Revolution Of The Modern Family: An Examination Of The Unique Barriers Confronting Gay Adoptive Parents, Nicholas Arntsen

Nicholas Benedict Arntsen

Abstract: In recent decades, the structure of the American family has been revolutionized to incorporate families of diverse and unconventional compositions. Gay and lesbian couples have undoubtedly played a crucial role in this revolution by establishing families through the tool of adoption. Eleven adoptive parents from the state of Connecticut were interviewed to better conceptualize the unique barriers gay couples encounter in the process adoption. Both the scholarly research and the interview data illustrate that although gay couples face enormous legal barriers, the majority of their hardship comes through social interactions. As a result, the cultural myths and legal restrictions …

Actualizing Intimate Partnership Theory, Alicia Kelly

Alicia B. Kelly

This article offers concrete ways to modernize and advance existing laws governing the economics of couple relationships through fuller development and implementation of a “partnership of equals” theory. This is much needed because contemporary law does not adequately protect against financial vulnerabilities produced by partnering, and does not fairly share its benefits. As a result, law contributes to inequalities across a range of groups: between men and women; between cohabitants and married couples; and between same sex and opposite sex couples. Accordingly, I recommend a shift in law's foundation and application. Couple's law should be based on economic sharing behavior, …

Money Matters In Marriage: Unmasking Interdependence In Ongoing Spousal Economic Relations, Alicia B. Kelly

Alicia B. Kelly

This Article presents a rare exploration of the interactions among money, marriage and law while the relationship is ongoing. Using insights on the relational landscape from the social sciences as a lens, I examine the law’s regulation of spousal economic relations and its account of and potential impact within a functioning marriage. Building on my previous work, my claim is that the law governing money in marriage should be grounded on a distinctive and clarified model of partnership marriage that understands the relationship to be of equal persons who join forces to share the burdens and benefits of a shared …

Reconstructing Marriage: An Intersexional Approach, Martha Ertman

Martha M. Ertman

No abstract provided.

Promoting Marriage Experimentation: A Class Act?, Julie Nice

Julie A. Nice

For nearly sixty years, the federal government maintained a policy of preventing or discouraging receipt of welfare by two-parent families. In its massive overhaul of welfare in 1996, Congress reversed course and declared its new policy was to promote marriage for welfare recipients. With great fan fare, the Bush Administration pledged $1.5 billion to support a healthy marriage initiative for recipients of Temporary Assistance to Needy Families. As Professor Nice reveals, however, the marriage promotion policy is not what it seems to be. For example, in the 2005 Deficit Reduction Act, Congress quietly reinstated a marriage penalty by authorizing sanctions …

Transgender Theory: Reprogramming Our Automated Settings, Marybeth Herald

Marybeth Herald

Over the course of the last few decades, both law and society have struggled to deprogram unhelpful and downright destructive gender stereotypes that are ubiquitous in our everyday existence. It has not been an easy task, nor entirely successful on either the legal or cultural front. Laws that prohibit gender discrimination, such as Title VII, have helped end overt discrimination. The next phase involves the challenging problem of unconscious bias, which often effectively keeps us treading the same mental paths while bypassing any roads not traveled.

It is not surprising then that when the validity of even the basic categories …

The Formless City Of Plato's Republic: How The Legal And Social Promotion Of Divorce And Same-Sex Marriage Contravenes The Principles And Undermines The Projects Of The Universal Declaration Of Human Rights, Scott Fitzgibbon

Scott T. FitzGibbon

In the Republic, Plato describes a stage in social decay called “formlessness,” where all sorts of differences are accepted and none is preferred. No one need hold office or obey. People are impatient with all the ties that ought to bind them. Plato's formess city displays three deplorable features. One is the denigration of law and custom. A second is ethical skepticism or nihilism. A third is the repudiation of duty. These features also characterize the divorce culture and the same-sex marriage movement. The Universal Declaration of Human Rights reflects a philosophy quite the reverse of Plato’s formless city. Its …