Legal History Commons^™

An Incomplete Revolution: Reexaming The Law, History, And Politics Of Marital Property, Mary Ziegler

Scholarly Publications

Did the divorce revolution betray the interests of American women? While there has been considerable disagreement about the impact of divorce reform on women’s standard of living, many agree that judicial practices involving the division of marital property and the allocation of alimony have systematically disadvantaged women. Most often, in the courts and the academy, commentators see these practices as evidence of the need for family law reform.

These conclusions rely on a shared account of the history of divorce reform. According to this account, the transformation of divorce law in the 1970s and 1980s was a “silent revolution,” a …

Save Our Children: Overcoming The Narrative That Gays And Lesbians Are Harmful To Children, 21 Duke J. Gender L. & Pol'y 125 (2013), Anthony Niedwiecki

UIC Law Open Access Faculty Scholarship

This paper focuses on how gay rights activists had no real choice but to use the court system to advance marriage rights for same-sex couples because they were unable to use the political process to effectively rebut the claim that gays and lesbians were harmful to children. Part I begins with an overview of the ways in which the initiative process has been used to limit gay rights and prevent marriage equality. It then details how, in contrast to the political process, courts have been more receptive to advancing marriage rights for same-sex couples. Part II details Walter Fisher's narrative …

Globalization And Law: Law Beyond The State, Ralf Michaels

Faculty Scholarship

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Publications

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often presumed …

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Publications

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay …

A Diva Defends Herself: Gender And Domestic Violence In An Early Twentieth-Century Headline Trial, Carolyn B. Ramsey

Publications

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend …

Civil Rites: The Gay Marriage Controversy In Historical Perspective, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This short essay, written for a volume that celebrates and reflects on Lawrence M. Friedman’s work in legal history and legal culture, explores the modern controversy about same-sex marriage through a historical lens. The legalization of same-sex marriage by five states, and the express condemnation of it by more than forty others, has reintroduced the age-old problem of non-uniform marriage laws and the complicated interactions that follow. This modern story - a challenge to traditional marriage, a divisive moral debate, and the emergence of strong oppositional forces that are stuck, at least temporarily, but perhaps indefinitely, in a kind of …

It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, Lolita Buckner Inniss

Publications

No abstract provided.

Feminism As Liberalism: A Tribute To The Work Of Martha Nussbaum Symposium: Honoring The Contributions Of Professor Martha Nussbaum To The Scholarship And Practice Of Gender And Sexuality Law: Feminism And Liberalism, Tracy E. Higgins

Faculty Scholarship

In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities …

Christianity And The Legal Status Of Abandoned Children In The Later Roman Empire, Joshua C. Tate

Faculty Journal Articles and Book Chapters

Late Roman imperial legislation relating to abandoned or exposed children has been the subject of much debate. Some have argued that the constitutions of Constantine relating to abandoned children marked a new Christian influence, and that the years between Constantine and Justinian merely refined and explained Constantine's legislation. This paper argues that the legislation of Constantine was not distinctly Christian in content, but that some Christian influence can be seen in the rhetoric of imperial constitutions beginning in the fifth century, and that Christian ideas seem to have affected both the substance and the rhetoric of Justinian's legislation. The paper …

Gender And Nation-Building: Family Law As Legal Architecture Symposium - Nation Building: A Legal Architecture: Articles And Essays, Tracy E. Higgins, Rachel P. Fink

Faculty Scholarship

Although the discipline of family law in the western legal tradition transcends the public/private law boundary in many ways, it is the argument of this Essay that family law, in the private law sense of defining the rights and obligations of members of a family, forms an important part of the legal architecture of nation-building in at least three ways. First, access to the resources of the nation-state devolves through biologically and culturally gendered national boundaries, both reflecting and reinforcing the differential status of men and women in the sphere of the family. Second, the social institution of the family …

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

Publications

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one--and even extended it to abandoned women who killed their unfaithful …

Afterword: Elite Principles: The Ali Proposals And The Politics Of Law Reform, Carl E. Scheider

Book Chapters

The Reporters of the PRINCIPLES were distinguished legal scholars who produced a serious and ambitious document. The contributors to the present volume subject the PRINCIPLES to probing, thoughtful, and illuminating analysis. At the volume's beginning, Professor Glendon puts the problems of family law in a broader perspective by examining the challenges families today face in living good lives. Now, at the volume's close, I want to put both the PRINCIPLES and the essays in a broader perspective. I need not vivisect the PRINCIPLES; that is admirably done by the essayists. Rather, I proffer a tool for understanding the PRINCIPLES more …

Lesbian And Gay Parenting: The Last Thirty Years, Nancy Polikoff

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus

Scholarly Works

Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating …

Another Of Roger William's Gifts: Women's Right To Liberty Of Conscience: Joshua Verin V. Providence Plantations, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy's core institution and to express views on who should be included within it. The focus of this article is different. Like an "unmannerly wedding guest," this article invites the reader to pause amidst the whirlwind of marriage talk and to think critically about monogamy and its alternatives.

"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright

UF Law Faculty Publications

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and …

Incest In A Thousdand Acres: Cheap Trick Or Feminist Re-Vision, Susan Ayres

Faculty Scholarship

This article ultimately argues that the plot changes are not a cheap trick intended to manipulate the reader's emotions, but a feminist re-vision, which succeeds or not depending on the reader's critical feminist perspective. Thus, Part Two delineates several feminist stances, such as liberal feminism, radical feminism, social feminism, and postmodern feminism, and summarizes the plot changes Smiley has imposed on King Lear. Part Three considers one major plot change - the longing for the mother - in terms of patriarchy's suppression of a maternal genealogy and feminine language. This part argues that the novel successfully demonstrates the difficulty in …

Interview With Alan M. Lerner, Lake Srinivasan, Alan M. Lerner, Legal Oral History Project, University Of Pennsylvania Carey Law School

Legal Oral History Project

For transcript, click the Download button above. For video index, click the link below.

Alan M. Lerner (L '65) was a practice professor at the University of Pennsylvania Law School from 1993 until his death in 2010. He practiced and taught mainly in the areas of civil rights and family law.

Note: English Child Custody Law, 1660-1839: The Origins Of Judicial Intervention In Parental Custody, Sarah Abramowicz

Law Faculty Research Publications

Many legal historians see pre-1839 English child custody law as consisting of near-absolute paternal rights. These historians believe that the weakening of fathers' rights began with the 1839 Custody of Infants Act, which created certain maternal custody rights. Other historians have noted that paternal custody was qualified even before 1839 by the Court of Chancerys application of the doctrine of parens patriae. This Note tells a different story and argues that the origin of incursions into the so-called "empire of the father" was the 1660 Tenures Abolition Act, a statute that ironically seemed designed to strengthen fathers' rights. The …

Sex And The Social Order: The Selective Enforcement Of Colonial American Adultery Laws In The English Context, Carolyn B. Ramsey

Publications

No abstract provided.

The Newest Property: Reproductive Technologies And The Concept Of Parenthood, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Dutch Uncle Sam: Immigration Reform And Notions Of Family, Lolita Buckner Inniss

Publications

No abstract provided.

Territoriality And Moral Dissensus: Thoughts On Abortion, Slavery, Gay Marriage And Family Values, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.

The Only Good Poor Woman: Unconstitutional Conditions And Welfare, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

Ex Proprio Vigore, James J. White

Articles

The National Conference of the Commissioners on Uniform State Laws (NCCUSL) is a legislature in every way but one. It drafts uniform acts, debates them, passes them, and promulgates them, but that passage and promulgation do not make these uniform acts law over any citizen of any state. These acts become the law of the various states only ex proprio vigore - only if their own vitality influences the legislators of the various states to pass them.

Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America, Elizabeth B. Clark

Publications

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

The Politics Of God And The Woman's Vote: Religion In The American Suffrage Movement, 1848-1895, Elizabeth B. Clark

Publications

This thesis examines the role of religion— both liberal and evangelical Protestantism— in the development of a feminist political theory in America during the nineteenth century and how that feminist theory in turn helped to transform American liberalism. Chapter 1 looks for the genesis of women's rights language, not in the republican rhetoric of the Founding Fathers, but in the teachings of liberal Protestantism and its links with laissez-faire economic theory. The antebellum understanding of rights is shown to have encompassed social and civil rights alike, and to have arisen from a vision of the mutual benefits that derived from …