Law Commons^™

The Invisible Prison: Pathways And Prevention, Margaret Brinig, Marsha Garrison

Journal Articles

In this paper, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multi-generational sample of unmarried fathers from a rust-belt region of the United States as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: The Court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children (the …

Multi-Partner Fertility In A Disadvantaged Population: Results And Policy Implications Of An Empirical Investigation Of Paternity Actions In St. Joseph County, Indiana, Margaret Brinig, Marsha Garrison

Journal Articles

In this paper, we report data on multi-partner fertility (MPF) in a population of children and parents for whom paternity actions were brought, in 2008 or 2010, in St. Joseph County, Indiana. The computerized, court-based record system we utilized enabled us to collect information on parental characteristics and child outcomes that other MPF researchers have been unable to access. Our research thus offers a unique, data-rich window into an important, and growing, aspect of contemporary family life. It also points the way to needed shifts in family policy and law.

Getting Blood From Stones: Results And Policy Implications Of An Empirical Investigation Of Child Support Practice In St. Joseph County, Indiana Paternity Actions, Margaret F. Brinig, Marsha Garrison

Journal Articles

Today, there is consensus that the current system of calculating and enforcing support obligations does not work well for disadvantaged families, most of which are nonmarital. Nonmarital children are less likely to have support orders established than marital children, and they are much less likely to experience full payment.

In this paper, we report data on parenting time, child support calculation, and enforcement actions in a population of nonmarital children for whom paternity actions were brought, in 2008 or 2010, in St. Joseph County, Indiana. The computerized, court-based record system we utilized to collect data gave us access to information …

There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett

Journal Articles

This short essay is a contribution to a volume celebrating a new casebook, "Christian Legal Thought: Materials and Cases", edited by Profs. Patrick McKinley Brennan and William S. Brewbaker.

Adultery: Trust And Children, Margaret F. Brinig

Journal Articles

Deborah Rhode writes that while adultery is admittedly not good, it should not be criminal. She argues that it should not generate a tort action either, because the original purposes for which the torts of alienation of affections and criminal conversation come from a time with quite different views about marriage and gender, while no-fault and speedy divorce today give adequate remedies to the wronged spouse. Further, adultery should not affect employment (as a politician or in the military) unless it directly impacts job performance.

My own reluctance to disengage adultery and law stems from the seriousness of adultery. First, …

Chickens And Eggs: Does Custody Move Support, Or Vise-Versa?, Margaret Brinig

Journal Articles

Most, if not all, of the theoretical work on child support presupposes that it becomes an issue only when couples separate, that is, that the flow moves between custody and child support and that the duty to make monetary payments is typically owed by the noncustodial parent. (I realize, of course, that there can be issues regarding the identity of the payor and that there are criminal and civil actions possible when parents refuse or neglect to provide support to dependent children.) Some empirical work confirms the relationship between the two. For example, Judith Seltzer, Weiss and Willis, and Brinig …

Racial And Gender Justice In The Child Welfare And Child Support Systems, Margaret Brinig

Journal Articles

While divorcing couples in the United States have been studied for many years, separating unmarried couples and their children have proven more difficult to analyze. Recently there have been successful longitudinal ethnographic and survey-based studies. This piece uses documents from a single Indiana county’s unified family court (called the Probate Court) to trace the effects of race and gender on unmarried families, beginning with a sample of 386 children for whom paternity petitions were brought in four months of 2008. It confirms prior theoretical work on racial differences in noncustodial parenting and poses new questions about how incarceration and gender …

Result Inequality In Family Law, Margaret Brinig

Journal Articles

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the US Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs.

This presentation …

Religion And Child Custody, Margaret Brinig

Journal Articles

This piece draws upon divorce pleadings and other records to show how indications of religion (or disaffiliation) that appear in custody agreements and orders (called “parenting plans” in both states studied) affect the course of the proceedings and legal activities over the five years following divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child (at least in theory), the child’s independent religious needs …

Shared Parenting Laws: Mistakes Of Pooling?, Margaret F. Brinig

Journal Articles

In their recent paper “Anti-Herding Regulation,” forthcoming in the Harvard Business Review, Ian Ayres and Joshua Mitts argue that many well-intentioned public policy regulations potentially harm rather than help situations. That is, because they seek to pool — or herd — groups of people, treating them as equal, they miss or mask important differences among the regulated, thus magnifying systematic risk. Anti-herding regulation, on the other hand, can produce socially beneficial information, in their words steering “both private and public actors toward better evidence-based outcomes.” Left to their own, or with various carrot-and-stick incentives, some groups, anyway, would instead fare …

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

Journal Articles

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 …

Explaining Abuse Of The Disabled Child, Margaret F. Brinig

Journal Articles

This article discusses abuse of disabled children in terms of two competing theories for why it may occur. The evolutionary biology theory has been discussed in the legal literature as well as in biological and social science pieces. The author contrasts this theory with a novel one, mimetic desire, which may be less familiar in legal circles, but which, he believes, better explains the abuse of Attention Deficit Hyperactive Disorder children and offers more hope for preventing abuse without disrupting intact families. While the evolutionary biology explanations for child abuse may be helpful and important, more territory can be covered …

Child Support Guidelines And Divorce Incentives, Margaret F. Brinig, Douglas W. Allen

Journal Articles

A child support guideline is a formula used to calculate support payments based on a few family characteristics. Guidelines began replacing court awarded support payments in the late 1970s and early 1980s, and were eventually mandated by the federal government in 1988. Two fundamentally different types of guidelines are used: percentage of obligor income, and income shares models. This paper explores the incentives to divorce under the two schemes, and uses the NLSY data set to test the key predictions. We find that percentage of obligor income models are destabilizing for some families with high incomes. This may explain why …

Belonging And Trust: Divorce And Social Capital, Margaret F. Brinig

Journal Articles

To whom do spouses belong? Do they belong to their communities as well as each other and their immediate families? These questions are explored in an empirical paper demonstrating ways in which social capital in communities may affect even the marriages of people living in them.

Parents: Trusted But Not Trustees Or (Foster) Parents As Fiduciaries, Margaret F. Brinig

Journal Articles

Some fifteen years ago, Elizabeth and Robert Scott wrote an important article making the case that parents could be usefully described using a fiduciary model. This paper explains why their model fits foster parents better than biological or adoptive parents, at least in the sense that Tamar Frankel explains in her new book on fiduciary law.

Child Support Guidelines: The Good, The Bad, And The Ugly, Margaret F. Brinig, Douglas W. Allen

Journal Articles

Child support guideline systems do more than simply determine the amount of income to be transferred from the noncustodial to the custodial household. They create incentives, one way or another, for spouses to divorce and seek custody and support payments. We examine three cases found in North America, and find that the common method of income shares provides a decent guideline that does not create any perverse incentives for divorce. Percentage-of-obligor-income methods do worse than other systems, and can cause increases in divorce rates for families in which one spouse earns a high income. Finally, the Canadian system, which is …

Do Joint Parenting Laws Make Any Difference?, Margaret Brinig, Douglas W. Allen

Journal Articles

Using a unique data set on divorcing couples, we analyze the effects of a change in legal entitlement on the outcomes for divorcing couples. In particular, we analyze the 1997 change to custody provisions in the State of Oregon. Prior to 1997, Oregon assigned custody, based on the discretion of the court, in the best interests of the child. This was changed to a presumption- of joint parenting, which manifests in the courts encouraging and imposing joint (or shared) custody in cases that otherwise would have had sole custody arrangements. We find that the law had several implications for divorce …

The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock

Journal Articles

Family policy and the law based on it assume universals. That is, if marriage improves the welfare of the majority of couples and their children, it is worth pushing as a policy initiative. Further, laws will be written (or kept on the books) that privilege marriage over other family forms. Similarly, research that tells us that divorce harms children except following the relatively small number of highly conflicted marriages, spawns efforts to preserve troubled marriages or even to roll back liberal or relatively inexpensive divorce laws. With yet another example, since adopted children mostly do better than children left either …

Children's Beliefs And Family Law, Margaret F. Brinig

Journal Articles

In a recent series of opinions authored by Justice Stevens, the Court has recognized that children may have independent religious rights, and that these may be in conflict with their parents'. The questions for this piece are whether considering children's rights independently is a good thing whether it is warranted by children's actual religious preferences and whether children's religious activities actually do anything measurable for the children.

I do not advocate that the Supreme Court become more involved with family law than it has been since the substantive due process days of Meyer and Pierce. I am also not one …

Are All Contracts Alike?, Margaret F. Brinig

Journal Articles

This Article compares two sets of contracts that are structurally and contextually similar. They originate in two quite different fields, however: the commercial arena and the family. The contracts come from two separate empirical investigations. The first investigation studied 131 telecommunication interconnection agreements made between SBC Communications, Inc. ("SBC") and various local phone companies in Michigan beginning in 1998. The second investigation involved 141 divorce cases granted in 1998 in Johnson County, Iowa, all of which involved children, and 130 of which involved contracts, or "stipulations" as they are called locally. Though each empirical project has been described separately elsewhere, …

Legal Status And Effect On Children, Margaret F. Brinig, Steven L. Nock

Journal Articles

One of the haunting claims of each poor, unmarried mother in Edin and Kefalas' Promises I Can Keep is that at least she can guarantee she will love her child, even though she cannot promise to make a lifelong commitment to a mate. That love, each young mother says, will be a sustaining gift both to her and the child. Similarly, in work done by sociologists McLanahan and Garfinkel to counteract the claim that it was not single parenting that made children's prospects dim, but poverty, sociologists have found that many of the bad effects of single parenting go away …

From Family To Individual And Back Again, Margaret F. Brinig

Journal Articles

Loving v. Virginia has been thought of in many ways: as an important step toward full equality for African-Americans, as, more generally, a statement about the suspect classification of race, as a declaration about the fundamental nature of marriage, and as a critical addition to the construction of the right to privacy (as well as, of course, exemplified in the validation of the Lovings' own marriage).

In my contribution to the first Loving symposium, I wrote about the increasing tendency of the Supreme Court, following the 1967 decision, to treat the rights of intimacy as belonging to the individual adults …

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Journal Articles

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …

Does Parental Autonomy Require Equal Custody At Divorce?, Margaret F. Brinig

Journal Articles

This paper considers the affect of amendments to state divorce laws that strengthen their joint custody preference. It does so in the context of suits by noncustodial parents challenging substantive custody standards not requiring equal custody at divorce. The complaint is that most custody laws, by using a best interests standard rather than equally dividing custodial time, violate substantive due process. Further, two states, Iowa and Maine, have recently amended their custody legislation to strongly presume joint physical custody.

After setting out the constitutional problem and describing the legislation in some detail, this paper tests the effects of the change …

Unhappy Contracts: The Case Of Divorce Settlements, Margaret F. Brinig

Journal Articles

This paper examines a particular type of contracts that is, sadly, increasingly frequent: the agreements produced by divorcing couples. They are unhappy contracts, agreements produced as a necessary part of exit from what is now suboptimal marriage. They are virtually required by many states and are, in theory at least, closely monitored by courts since, when children are involved, they will be incorporated into court orders.What parties to unhappy contracts do is attempt to minimize losses, rather than maximize gain. How are contracts structured that will do this, and how does a difference in the size or power of the …

The Role Of Socioeconomics In Teaching Family Law, Margaret F. Brinig

Journal Articles

Applying knowledge from other social sciences makes particular sense with the law and economics of the family. Much of the behavior we see and experience within families is difficult to see or understand as economically rational, that is, narrowly self-interested. Many of the legal changes we make that appear to be rational, at least from a cost-benefit perspective, turn out to be unsatisfying or even counterproductive. Though economists tend to view motivations or "utility functions" based upon "revealed preference," extended models like that of socioeconomics go below what is revealed to measure, as best we can, people's attitudes and feelings …

Marry Me, Bill: Should Cohabitation Be The (Legal) Default Option?, Margaret F. Brinig, Steven L. Nock

Journal Articles

Are cohabitation and marriage similar enough to warrant similar legal treatment? Earlier public reports on cohabitation have focused on the question of whether cohabitation before marriage increases or decreases the divorce rate.

But increasingly cohabitation is being proposed not as a testing ground for marriage, but as a functional substitute for it. The trend in family law and scholarship in Europe and Canada is to treat married and cohabiting couples similarly, or even identically.

In this country, the American Law Institute [ALl] recently proposed that, at least when it comes to the law of dissolution, couples who have been living …

Promoting Children's Interest Through A Responsible Research Agenda, Margaret F. Brinig

Journal Articles

I deeply wish to see more good empirical work in family law. If our system had all of the money in the world, I would wish to spend it to guarantee happy, healthy children. But since resources are scarce, and children's issues must compete with other interests that range from national security to care for the elderly, I would suggest spending a relatively modest amount to determine what programs would likely prove successful.

Usually public policy follows from the wishes of adults. In family law, this occurs although virtually all the legislation dealing with families and children begins with a …

How Much Does Legal Status Matter? Adoptions By Kin Caregivers, Margaret F. Brinig, Steven L. Nock

Journal Articles

Virtually all the legislation dealing with families that include children begins with a "best interests of the child" premise.' Most, if not all, of the litigated results at least seem to maximize the outcomes for adults. This discrepancy should not be surprising, for both substantive and procedural reasons.

The substantive reason, as even the Supreme Court has noted, is that most of the time, what is good for parents will also be good for children. Moreover, having parents who possess many "rights" allow them to better exercise their parental responsibilities. From a procedural perspective, adults are usually the named parties …

Domestic Partnership: Missing The Target?, Margaret F. Brinig

Journal Articles

Chapter 6, Domestic Partnerships, like many other parts' of the ALI Principles of the Law of Family Dissolution, functions as a set of default rules. Under the ALI Principles for domestic partnerships, therefore, if the parties meet state presumptive requirements for domestic partnerships and have not otherwise contracted, the rules of Chapter 6 apply. Usually, law sets default provisions to 1) what most parties would want; or 2) to what will promote efficiency. I will discuss these two concepts in turn, illustrating how the ALI domestic partnerships provisions satisfy neither ex ante hypothetical bargaining nor efficiency criteria, and thus that …