Law Commons^™

A Human Capital Theory Of Alimony And Tax, Tessa R. Davis

Faculty Publications

The current taxation of alimony is a broken scheme. Severed from any strong theoretical mooring, it draws lines in the sand between property settlement, child support, and alimony. The lack of coherence between the substance of alimony in family law and the tax concept of alimony (“tax alimony”) could be justified on other policy grounds, however. Yet current law, which allows the payor a deduction under §215 and requires inclusion by the recipient per §71, is difficult to interpret, resulting in frequent litigation and costly noncompliance. In short, the current concept of tax alimony fails to satisfy any of the …

The Marital Wealth Gap, Erez Aloni

All Faculty Publications

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.

How can the …

Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande

Faculty Publications

In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.

Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman

All Faculty Scholarship

This article marks the 30th anniversary of the Supreme Court of New Jersey’s Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be …

Family Law's Exclusions, Clare Huntington

Faculty Scholarship

As Fordham Law School commemorates the hundredth anniversary of women in its ranks, the school is also acknowledging the ways it has excluded women. For this special Issue celebrating scholarship by the women of Fordham, I see a similar theme echoing in my work. From my first article, published soon after I graduated from law school, through my most recent work, I have identified and explored the exclusions riddling family law.

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.

There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more …