Law Commons^™

Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker

Faculty Scholarship

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …

The Ali Principles Of The Law Of Family Dissolution: Addressing Inequality Through Functional Regulation, Linda C. Mcclain, Douglas Nejamie

Faculty Scholarship

As part of a volume commemorating the American Law Institute on its centennial, this Essay reflects on the ALI Principles of the Law of Family Dissolution. We show how the Principles’ drafters intervened in cutting-edge issues at a time of flux in family law in ways that elaborated a progressive agenda that would continue to gain traction in the years after the Principles’ publication in 2000. Beginning from the assumption that family law should reflect how people actually live, the drafters developed a functional, rather than formal, approach to legal regulation. Such an approach, they believed, could vindicate commitments to …

Developmental Justice And The Voting Age, Katharine B. Silbaugh

Faculty Scholarship

Several municipalities have lowered the voting age to 16, with similar bills pending in state legislatures and one considered by Congress. Meanwhile, advocates for youth are trying to raise the ages of majority across an array of areas of law, including ages for diverting criminal conduct into the juvenile justice system (18 to 21); buying tobacco (18 to 21); driving (16 to 18); and obtaining support from the foster care system (18 to 21). Child welfare advocates are fighting the harms of Adultification, meaning the projection of adult capacities, responsibilities, and consequences onto minors. In legal and social history, seeing …

Brief Of Amici Curiae Scholars Of The Constitutional Rights And Interests Of Children In Support Of Respondents, Angela Onwuachi-Willig, Catherine E. Smith, Tanya Washington Hicks, Lauren Fontana, Jessica Dixon Weaver, Cary Martin Shelby

Faculty Scholarship

This Brief of Amici Curiae Scholars of the Constitutional Rights and Interests of Children in Support of Respondents filed in Fulton v. City of Philadelphia makes two points. First, a categorical exemption, based on religious beliefs rather than foster children’s needs, does not serve the best interests of children and violates the government’s duty to foster youth. Such an exemption needlessly restricts the pool of prospective foster parents, increasing the risk of a greater number of children being confined to long-term, institutional care. The reduction of same-sex foster parents would also have a disproportionate impact on “special needs” and LGBT …

The Legal Design For Parenting Concussion Risk, Katharine B. Silbaugh

Faculty Scholarship

This Article addresses a question as yet unexplored in the emerging concussion risk literature: how does the statutorily assigned parental role in concussion risk management conceptualize the legal significance of the parent, and does it align with other areas of law that authorize and limit parental risk decision-making? Parents are the centerpiece of the “Lystedt” youth concussion legislation in all fifty states, and yet the extensive legal literature about that legislation contains no discussion of parents as legal actors and makes no effort to situate their statutory role into the larger legal framework of parental authority. This Article considers the …

Environmental Determinism: Functional Egalitarian Spaces Promote Functional Egalitarian Practices, Katharine B. Silbaugh

Faculty Scholarship

Egalitarian, place-based thinking belongs at the table when considering approaches to improving early childhood. Places connect people’s lives. They also generate patterns that organize, and can re-organize, our social order and behavior. Places can spark and support the development of self-governance and cultivate a political voice grounded in the needs of the same community that place generates. Whether considered as community schools, community centers, or more ambitiously, community housing developments designed to include services that meet the needs of residents, the spatial dimensions of early childhood policy require explicit consideration.

The Rhetoric Of Bigotry And Conscience In Battles Over "Religious Liberty V. Lgbt Rights", Linda C. Mcclain

Faculty Scholarship

Charges, denials, and countercharges of “bigotry” are a familiar feature in debates over the evident conflict between LGBT rights and religious liberty. A frequent claim is that religious individuals who reject the extension of civil marriage to same-sex couples and seek conscience-based exemptions from state public accommodations law that protect against discrimination on the basis of sexual orientation are being “branded” as bigots. The rhetoric of bigotry raises a number of puzzles. Is sincerity or the appeal to conscience a defense to charge of bigotry? Is a charge of bigotry inferred simply from asserting that society should learn lessons from …

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

Extending The Normativity Of The Extended Family: Reflections On Moore V. City Of East Cleveland, Angela Onwuachi-Willig

Faculty Scholarship

Part I of this Article briefly recounts the plurality decision in Moore before analyzing Justice Brennan’s concurring opinion and detailing how the concurrence affirms, rather than deconstructs, the notion of African American deviance in families. Next, Part II specifies the ways in which Justice Brennan could have truly uplifted African American families and other families of color by identifying and explicating the strengths of extended or multigenerational family forms among people of color and by showing how such family forms can be a model, or even the model (if one must be chosen), for all families. Then, Part III concludes …

Will Focusing On Men's Moral Calculus Make Abortion Less "About" Gender?, Linda C. Mcclain

Faculty Scholarship

Decades ago, feminist leader Gloria Steinem quipped that, “if men could get pregnant, abortion would be a sacrament.” As President Trump reinstates restrictions on women’s reproductive rights that the Obama Administration lifted (such as the “global gag rule”), the visual imagery of Trump signing executive orders while surrounded by an audience of white men raises – once again – the question of how gender shapes the abortion issue. In the recent unsuccessful Republican effort to repeal “Obamacare,” when Kansas Senator Pat Roberts was asked whether he supported removing the mandate that insurance companies cover “essential health benefits” such as maternity …

Brief Amici Curiae Of Professors Of History, Political Science, And Law In Support Of Respondent, Kristin Collins, Catherine E. Stetson, Jessica K. Jacobs

Faculty Scholarship

Sex-based laws premised on archaic presumptions about the proper roles of men and women run afoul of established constitutional principles, especially when they interfere with the parent-child relationship. Amici write to explain the history of the federal government’s use of sex-based classifications in the regulation of citizenship. In its regulation of intergenerational and interspousal citizenship transmission, the federal government has perpetuated outdated gender-based norms concerning proper parental roles, even when those norms have been rejected in other legal and social contexts. In addition, the laws governing derivative citizenship have significantly encumbered the ability of American fathers to transmit citizenship to …

Distinguishing Households From Families, Katharine B. Silbaugh

Faculty Scholarship

The study of the relationship between all families, whether marital or non-marital, and households, is underdeveloped, despite extensive study of the mismatch between family law, which is still focused on marriage and parenthood, and family practices. Often, in an effort to update the discourse, discussions of non-marital families seem to deploy households or living arrangements as a substitute classification in the place of the old marital family. This Article argues that we need to resist the tendency to substitute the idea of “household” when the boundaries of legal family fail us, because households are not necessarily familial, and because core …

Civil Marriage For Same-Sex Couples, "Moral Disapproval," And Tensions Between Religious Liberty And Equality, Linda C. Mcclain

Faculty Scholarship

In the United States and Europe, an increasing emphasis on equality has pitted rights claims against each other, raising profound philosophical, moral, legal, and political questions about the meaning and reach of religious liberty. Nowhere has this conflict been more salient than in the debate between claims of religious freedom, on one hand, and equal rights claims made on the behalf of members of the lesbian, gay, bisexual, and transgender (LGBT) community, on the other. As new rights for LGBT individuals have expanded in liberal democracies across the West, longstanding rights of religious freedom—such as the rights of religious communities …

The Intersection Of Civil And Religious Family Law In The U.S. Constitutional Order: A Mild Legal Pluralism, Linda C. Mcclain

Faculty Scholarship

This chapter considers how civil and religious family law intersect in the U.S. legal system and how U.S. constitutional law shapes and constrains the accommodation of religious pluralism as it pertains to family law. To the question, “Is there too much or too little pluralism in U.S. family law?,” I answer that family law appropriately embraces a mild legal pluralism, while clearly distinguishing between civil and religious marriage. After illustrating this distinction in the context of the recent controversy over same-sex marriage, I consider two categories of cases: (1) cases in which courts consider whether to enforce terms of Jewish …

Is There A Way Forward In The 'War Over The Family'?, Linda C. Mcclain

Faculty Scholarship

When Judge Posner, in Baskin v. Bogan, expressed incredulity -- given actual demographic trends in family formation -- that state marriage laws excluding same-sex couples furthered interests in “channeling” procreative sex and addressing accidental pregnancy, he brought together two conversations about marriage, family law, and family life that too often proceed independently. In the first, same-sex couples challenging marriage laws and the courts who rule in their favor emphasize the high stakes of exclusion by characterizing marriage as an incomparable institution and a signal that one’s intimate commitment is worthy of equal respect and dignity. To be left out of …

Common And Uncommon Families In The American Constitutional Order, Linda C. Mcclain

Faculty Scholarship

This essay reviews Professor Mark E. Brandon’s aptly named book, States of Union: Family and Change in the American Constitutional Order, which challenges the familiar story that the U.S. constitutional and political order have rested upon a particular, unchanging form of family – monogamous, heterosexual, permanent, and reproductive – and on the family values generated by that family form. That story also maintains that such family form and the legal norms that sustained it remained relatively undisturbed for centuries until the dramatic transformation spurred in part, beginning the 1960s, by the U.S. Supreme Court’s constitutionalizing of family and marriage through, …

The Other Marriage Equality Problem, Linda C. Mcclain

Faculty Scholarship

This article introduces the term “the other marriage equality problem” to invite attention to a marriage equality issue distinct from gay men's and lesbians’ access to the institution of civil marriage. That problem is captured in warnings about the growing class-based marriage divide and the “diverging destinies” of children that flow from these emerging patterns of family life, sometimes referred to as “the reproduction of inequalities.” Growing family inequality warrants attention for many reasons, including the crucial role that families, along with other institutions of civil society, play in sustaining the American experiment in “ordered liberty.” Strikingly, such warnings coexist …

From Romer V. Evans To United States V. Windsor: Law As A Vehicle For Moral Disapproval In Amendment 2 And The Defense Of Marriage Act, Linda C. Mcclain

Faculty Scholarship

This article considers the intertwined fates of Romer v. Evans and the Defense of Marriage Act (DOMA), which both date back to 1996. In United States v. Windsor, Justice Kennedy, writing for the majority, struck down Section 3 of DOMA, using Romer as a template. This article reflects on Romer as it bears on the use of law as a vehicle to express morality, in particular, “moral disapproval of homosexuality” and moral approval -- and the defense and nurture -- of “traditional, heterosexual marriage.” Proponents of Amendment 2 (struck down in Romer, in an opinion written by Justice Kennedy) and …

A Diversity Approach To Parenthood In Family Life And Family Law, Linda C. Mcclain

Faculty Scholarship

Extraordinary changes in patterns of family life and family law have dramatically altered the boundaries of parenthood and opened up numerous questions and debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Is parenthood separable from marriage or couplehood when society seeks to foster childrens well-being? What is the better model of parenthood from the perspective of child outcomes? Intense disagreements over the definition and future of marriage often rest upon conflicting convictions about parenthood. What Is Parenthood? asks bold and direct questions about parenthood in contemporary society, and it brings together …

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

Faculty Scholarship

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 let …

Federal Family Policy And Family Values From Clinton To Obama, 1992-2012 And Beyond, Linda C. Mcclain

Faculty Scholarship

This Article traces the evolution of federal family law and policy from 1992-2012 and beyond by considering the legacy of Clintonism, the “Third Way” political philosophy developed by William Jefferson Clinton and the Democratic Leadership Council. Present day economic inequality is spurring reflection on the role of government and on the meaning and form of progressive politics. Clintonism’s centrist, progressive approach linked governmental provision of opportunity to personal responsibility (“working hard and playing by the rules”) and appealed to values of family, community, faith, liberty, and inclusion. By linking family values to family policies, Clintonism’s New Covenant successfully challenged the …

What Is Parenthood?: Contemporary Debates About The Family Introduction, Linda C. Mcclain, Daniel Cere

Faculty Scholarship

Extraordinary changes in patterns of family life – and family law – have dramatically altered the boundaries of parenthood and opened up numerous questions about debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Despite this uncertainty, the intense focus on the definition and future of marriage diverts attention from parenthood. Demographic reports suggesting a shift away from marriage and toward alternative family forms also keep marriage in constant public view, obscuring the fact that disagreements about marriage are often grounded in deeper, conflicting convictions about parenthood. This book (as the posted …

Marriage Pluralism, Family Law Jurisdiction, And Sex Equality In The United States, Linda C. Mcclain

Faculty Scholarship

In many regions of the world, rights guaranteed under the civil law, including rights to gender equality within marriage and rights in the distribution of family property and child custody upon divorce, are in conflict with the principles of religious law. Women's rights issues are often at the heart of these tensions, which present pressing challenges for theorists, lawyers, and policymakers. This anthology brings together leading scholars and activists doing innovative work in Jewish law, Muslim law, Christian law, and African customary law. Using examples drawn from a variety of nations and religions, they interrogate the utility of recent theoretical …

Nature, Culture, And Social Engineering: Reflections On Evolution And Equality, Linda C. Mcclain

Faculty Scholarship

This book chapter explores evolution and morality by considering the appeal to nature, and in particular to how evolution has shaped female and male brains differently, to explain evident sex differences and the persistence of sex inequality. It uses as illustrative the popularizing accounts of male and female brains found in Louann Brizendine, The Female Brain and The Male Brain, and the portrayal in such accounts of fundamental male and female differences in human mate selection and parenting. Drawing on the work of scientist and philosophers, the chapter critiques these accounts for engaging in an increasingly popular “neurosexism.” Such neurosexism …

A Short History Of Sex And Citizenship: The Historians' Amicus Brief In Flores-Villar V. United States, Kristin Collins

Faculty Scholarship

The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last …

Child, Family, State, And Gender Equality In Religious Stances And Human Rights Instruments: A Preliminary Comparison, Linda C. Mcclain

Faculty Scholarship

The UN Convention on the Rights of the Child (CRC) recently began its third decade. Why has the United States still not ratified the CRC, celebrated as the most widely ratified international human rights treaty in history? Once again, this question is on the table: Congressional resolutions that President Obama should not transmit the CRC to the Senate for advice and consent rapidly followed intimations that the Obama Administration had some qualms about the U.S. keeping company only with Somalia in not ratifying it. Some scholars contend that enlisting the unique resources of religions would help to ground a culture …

What's So Hard About Sex Equality?: Nature, Culture, And Social Engineering, Linda C. Mcclain

Faculty Scholarship

Why is sex equality so hard to achieve? Social cooperation between women and men in various domains of life is assumed to be a fundamental and necessary building block of society, but proves hard to secure on terms of equality. One answer is that feminist quests for equality in private and public life are a form of misguided social engineering that ignores natural sex difference. This chapter examines arguments that nature and culture constrain feminist law reform. Appeals to nature argue that brain science and evolutionary psychology find salient differences between women and men, limiting what social engineering can achieve …

Sprawl, Family Rhythms, And The Four-Day Work Week, Katharine B. Silbaugh

Faculty Scholarship

We evaluate the four-day work week against the background of other institutional and social practices and constraints. But we fix these other variables when considering the value of this work reform. For example, workers enjoy the commute time and expense savings associated with a four-day week. These savings would mean little if the commutes in question were negligible. Therefore, the value of the four-day work week depends in part on the social history that gave us increasingly substantial commutes. This Article seeks to highlight some of the institutional practices that influence the adoption of a four-day work week, particularly those …

Marriage Pluralism In The United States: On Civil And Religious Jurisdiction And The Demands Of Equal Citizenship, Linda C. Mcclain

Faculty Scholarship

“Legal pluralism” is hot, particularly in family law. As family law and practice in the United States have become global due to the globalization of the family, some argue it is time for U.S. family law to embrace more legal pluralism so that civil government would cede jurisdictional authority over marriage and divorce law to religious communities. They point to forms of pluralism already present in U.S. family law, such as covenant marriage (available in three states) and New York’s get statutes. They suggest the U.S. should learn from how many other nations allocate jurisdiction over marriage and divorce law …

All In The Family, Angela Onwuachi-Willig, Jacob Willig-Onwuachi

Faculty Scholarship

Your essay “Pregnant Man?” highlights many significant issues concerning the intersection of law, gender, sexuality, race, class, and family. In an earlier article A House Divided: The Invisibility of the Multiracial Family, we explored many of these issues as they relate to multiracial families, including our own. Specifically, we, a black female-white male married couple, analyzed the language in housing discrimination statutes to demonstrate how law and society function together to frame the normative ideal of family as heterosexual and monoracial. Our article examined the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of …