Law Commons^™

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 …

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, …

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 …

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.

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 …

Empirical Work In Family Law, Margaret F. Brinig

Journal Articles

Until fairly recently, researchers have not done much theoretical work on the subject of family law. Although the move towards theoretical work is a positive one, unfortunately, most of the latest reforms in family law have been uninformed by empirical studies. Furthermore, the few empirical studies that have been conducted are replete with intractable problems.

In this essay, Margaret Brinig discusses some of the problems researchers have encountered in their attempts to conduct empirical work in the area of family law. For example, most researchers have used state cross-sectional data for their experiments. Reliance on this type of data can …

The Family Franchise: Elderly Parents And Adult Siblings, Margaret F. Brinig

Journal Articles

In this paper, I am going to concentrate on one family transition where we have established substantial legal barriers-that of emancipation. However, I will briefly allude to other "broken families," such as the divorcing family and the family divided by adoption.

As students of the family, we are preoccupied with divorce. We write about families in crisis and use the fabric of their lives worn thin and stretched to the breaking point to develop our ideas about what families are and even what they ought to be. In a way, of course, law teaching and the Socratic method drive us …

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 …

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, …

Comment On Jana Singer's Alimony And Efficiency, Margaret F. Brinig

Journal Articles

I propose to make three comments on Professor Singer's article. First, I will present my views on the limitations of law and economics when applied to family law. Second, I will discuss why specialization between husbands and wives is not necessarily efficient, and perhaps not even the best use of law and economics in the study of the family. Finally, and perhaps most controversially, I will question whether there are gender differences that should impact alimony law.

Your Right To Privacy And Children's Rights/Family Law: A Selective Bibliography, Sandra S. Klein

Journal Articles

In a society increasingly aware of real or perceived social inequities, it is not surprising to note a greater concern for the rights of children and their families. It is also apparent that privacy issues are an integral subset of the larger social sphere of interests. Privacy aspects can be seen to be involved pervasively throughout the area of law dealing with children and families, especially in view of the fact that there is obvious potential for conflict not only between families and the state, but between children and the families of which they are a part