Law Commons^™

Sexuality And The "System Of Liberty": Comment On Stolzenberg, William A. Galston

San Diego Law Review

Marriage and liberal democracy are forms of ordered liberty, one standing between sexual license and ascetics, and the other standing between anarchy and oppression. The relationship between liberal democracy and sexual liberty can be framed using four strategies devised by the liberal democratic project to limit the scope of personal freedom. This article places Stolzenberg's theory of love and liberty within the fourth strategy, which places limits on individual conduct through personal development and perfection. The author concludes that Stolzenberg is too bold for resting ordered sexual liberty on love, and suggests that the ultimate test for any form of …

The Meaning Of Marriage: State Efforts To Facilitate Friendship, Love, And Childrearing, Richard Arneson

San Diego Law Review

The Prioritarian Consequentialist approaches state regulation of marriage from a standpoint opposed to the Lockean Libertarian natural rights tradition. The prioritarian approach favors state regulation of marriage that induces people to make positive cost-benefit arrangements, whereas the lockean avers any coercive restriction of people's liberty. Taking a prioritarian consequentialist perspective, this article discusses the appropriate state policy regarding private relationships involving love, sex, and childrearing, and assesses the meaning of marriage and possible alterations to marriage that would lead to consequences on the quality of human life. The prioritarian consequentialist supports state policies that produce the best outcome for people's …

Who's Afraid Of Polygamous Marriage? Lessons For Same-Sex Marriage Advocacy From The History Of Polygamy, Cheshire Calhoun

San Diego Law Review

Attention to polygamy can strengthen the case for same-sex marriage. Both the historical debate on polygamy and the current debate on same-sex marriage concentrate on finding the best social response for the failure of conventional marriage to serve its purpose. The argument for traditional marriage conflicts with the Judeo-Christian tradition and a liberal democracy. Contrary to traditionalist arguments, polygamy and pluralistic relationships are a part of the Judeo-Christian tradition. Additionally, a liberal democracy is designed to protect an individual?s right to pursue a pluralistic way of life. Under a liberal theory, the state should remain neutral and allow individuals to …

Polygamy And Same-Sex Marriage: A Response To Calhoun, Samuel C. Rickless

San Diego Law Review

Support for legalizing same-sex marriage can be achieved without supporting the case for polygamy. This article responds to Professor Calhoun by raising objections to Calhoun's three main points. Polygamy does not strengthen the case for same-sex marriage because polygamy has not achieved any cultural significance equaling monogamy. Advocating the state to adopt a pluralistic, contractual approach to marriage overlooks the fact that the liberal state's role is not only to enforce but also to regulate private contracts. Polygamy is structurally problematic because it exacerbates the crises marriages face. Because same-sex marriages do not suffer from the same structural problems polygamous …

V.42-3, 2005 Masthead

San Diego Law Review

No abstract provided.

Introduction To The 2005 Editors’ Symposium: The Meaning Of Marriage, Larry Alexander

San Diego Law Review

Professor Alexander provides a brief introduction to the 2005 Editors' Symposium titled "The Meaning of Marriage."

Everything I Know About Marriage I Learned From Law Professors, Brian H. Bix

San Diego Law Review

Lawyers and legal academics routinely offer their views on social and political issues. This article considers whether legal academics add any special expertise to the current marriage debates, or whether legal academics should defer to others better suited to answer the questions raised in the marriage debates. The marriage debates involve questions concerning the regulation and definition of marriage, the legal requirements for marriage, and the presence of children. Because of their familiarity with legal analysis, family law doctrine and practice, legal academics and lawyers offer answers and views not available in the rhetoric of the political and media debates …

A Response To Professor Bix, Robert F. Nagel

San Diego Law Review

Legal academics study the legal process to understand how lawyers think and act. This article builds on Professor Bix by focusing on the influence lawyers and legal academics can have on the marriage debates. Lawyers and legal academics influence the marriage debates using their vocabulary, which allows them to craft solutions in a language alien to the general public, and render the marriage debate less understandable. Lawyers and legal academics influence the marriage debates through adversarial argumentation, which causes them to destabilize and shift settled understandings, and render the marriage debate distorted and impoverished. Although Professor Bix advocates deference on …

Who Knows?, Michael B. Kelly

San Diego Law Review

Even though other academic disciplines may provide better research and analysis for the discussion of marriage law, lawyers and legal academics can play a role in the marriage debates. This article responds to Professor Bix by discussing the roles lawyers and legal academics can play in the current marriage debates. The roles of lawyers vary from overcoming parochialism and broadening the inquiry outside specific academic disciplines to recognizing the areas that need investigating and synthesizing the results. The roles of legal academics stretch from helping “set the agenda” for research, that is, raising the issues and asking the important questions …

Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson

San Diego Law Review

The state offers marriage legal and financial support. This article questions whether the state is justified in supporting and promoting marriage by looking at recent studies that found that marriage produces differences in investment and well-being for children in marital households compared to other children. These studies isolated the value of marriage and identified the connection, if any, between supporting marriage and supporting children. The Manning and Lamb study evaluated outcomes for children in non-marital households, whereas, the Hoefferth and Anderson study examined different investments in marital and non-marital children by biological fathers. The two studies found a marriage advantage, …

Why The Federal Marriage Amendment Is Not Only Not Necessary, But A Bad Idea: A Response To Christopher Wolfe, Michael Perry

San Diego Law Review

The Federal Marriage Amendment does more than prevent same-sex couples from having marital status. In response to Professor Wolfe, this article contends that the Federal Marriage Amendment prevents state courts and state legislatures from choosing to grant marital status to same-sex couples. Gender complimentarity, the heart of Professor Wolfe's argument and the Federal Marriage Amendment's basis, is too controversial and problematic to bind future generations from allowing same-sex marriage. Even if society is currently opposed to same-sex marriage, this author concludes that the U.S. Constitution should not be amended in a way that prevents future generations from deciding whether to …

Three Tensions And One Omission, In The Case For The Federal Marriage Amendment, Donald A. Dripps

San Diego Law Review

Sam-sex marriage is a hotly contested social issue. This Article responds to Professor Wolfe by analyzing three tensions that premise the case for the Federal Marriage Amendment. The first tension portrays marriage as both fragile and fundamental. However, the long-standing institution of marriage faces more serious challenges than same-sex marriage. Therefore, if social changes, violence, and disease have not weakened marriage, same-sex marriage likely will not do the institution any grave damage. The second tension claims that activist judges threaten traditional marriage, thus necessitating its definition in Federal Constitutional law. However, the new Federal Marriage Amendment will be left to …

Liberals And Libertines: The Marriage Question In The Liberal Political Imagination, Nomi Maya Stolzenberg

San Diego Law Review

Liberalism and marriage are not easily separated from anti-libertine and libertine ideas. This article frames the meaning of marriage question by comparing Tolstoy’s anti-libertine novella, The Kreutzer Sonata with Roth?s libertine novella, The Dying Animal. Both novellas impale marriage and liberalism to reveal the strains of ambivalence toward freedom of love, sex, and personal attachments. In Tolstoy’s novella, Pozdnyshev reviles marriage because it is nothing more than licensed prostitution. In Roth’s novella, Kepesh despises marriage because it dampens sex and subjects the individual to constraints. The author offers two readings of these novellas, one that emphasizes the boundaries between liberal, …

What Is The "Meaning" Of "Marriage"?, Connie S. Rosati

San Diego Law Review

There is legitimacy to the conservative approach that goes beyond looking at the impact on people's welfare. This article responds to Professor Arneson by offering a different framework to investigate the underlying theoretical values behind appropriate state policies regarding private relationships. Neither the prioritarian consequentialist, nor the lockean libertarian captures the other side of the marriage debate, that is, the traditional ideal. The state’s interest in fostering the conservative, traditional marriage relationships begins to emerge through the author's assumptions that Kantian ethics is correct, that social stability depends on others—inviolate value, and that through love one can apprehend the value …

Thinking About Polygamy, Sanford Levinson

San Diego Law Review

The prohibition of same-sex marriage is no more defensible than the prohibition on other marital forms. This article enhances Professor Calhoun's proposal for polygamy by offering another reason to advocate pluralistic conceptions of marriage. If marriage is an institution focused on child-rearing and taking care of ailing partners, then polygamy offers a strong argument for state advocated pluralistic marital forms. The author concludes that Calhoun provides a necessary broader concept of marriage by suggesting a pluralistic approach as to what should count as a legally recognized marriage.

Traditionalism And Rationalism In The Courts, Gail Heriot

San Diego Law Review

Same-sex marriage might pose an unbridgeable issue between rationalist and traditionalist thinking. This article responds to Professor Wax by fitting the legislature and courts into Wax's rationalist/traditionalist paradigm. Like the traditionalist, the court must be cautious, conservative, and avoid egregious errors. The court must decide which party legal tradition already supports. In contrast, the legislature can be viewed as a conduit for rationalist ideas. Like the rationalist, the legislature can break with tradition and choose competing legal reforms that will improve society. Thus, the author concludes that the legislature, not the courts, should decide same-sex marriage issues because when courts …

Tradition And The Law: A Response To Wax, Dana Nelkin

San Diego Law Review

Professor Wax provides an acute, secular conservative view addressing same-sex marriage. This article responds to Professor Wax by raising several questions. If the majority of Americans are not inclined to social change when it comes to marriage, this article questions why Wax gives more weight to Burke's faith in tradition over reason than to the particular heuristic that arises from his rationale. Though Wax constructs an opposition to same-sex marriage, this article questions whether Burke and Oakeshott's rationale would meet this standard. Further, this article questions Wax's assessment of the conservative approach's outcome. In conclusion, however, the author favors a …

Marriage, Pluralism, And Change: A Response To Professor Wax, Maimon Schwarzschild

San Diego Law Review

There is no formula for assessing social change and resolving the traditional, conservative opposition to same-sex marriage. To augment Professor Wax's argument, this article offers a solution to the current marriage debate. Under a value pluralism approach, a solution to same-sex marriage would entail enacting different state laws that reflect diverse values. Value pluralism suggests that there are competing and conflicting ideals in life, none of which can be reduced and answered consistently. However, value pluralism ushers in other uncertainties. This author concludes that a successful case for same-sex marriage will not arise through a formula, but rather through persuading …

The Conservative's Dilemma: Traditional Institutions, Social Change, And Same-Sex Marriage, Amy L. Wax

San Diego Law Review

Thus far, there has been no coherent, secular elucidation of the opposition to same-sex marriage. This article attempts to develop a consistent position by applying the traditionalist and rationalist views of Edmund Burke and Michael Oakeshott to the same-sex marriage debate, while questioning whether traditional marriage should be changed to include same-sex unions. Burke and Oakeshott represent the conservative approach that advocates an adherence to tradition in the face of change. Through developing this conservative approach, this article seeks a heuristic, in the form of legislative change reflecting a majority view, for when society should accept change. Although an answer …

Metaphysics For The Marriage Debate, Janet Radcliffe Richards

San Diego Law Review

The debate concerning what marriage is and what marriage ought to be is confused by conflicting ideas of natural law. John Stuart Mill sees law as a means by which to improve a universe with no natural moral order, whereas James Fitzjames Stephen views law as a means to correct that which is morally against nature. This article focuses on understanding a morally neutral working of nature, which requires looking past something's moral desirability, and devising what form social arrangements, like marriage, should take. Once the ideas of natural law, together with moral goodness, are abandoned, and ideas discussing the …

Natural Law And Evolutionary Conservatives: Comments On Janet Radcliffe Richards, Matt Zwolinski

San Diego Law Review

Even though social and political institutions continue to develop and evolve, natural law should not be abandoned. Instead social institutions should change to remedy or compensate for nature's moral defects. The imperceptibility of justifications for marriage is a poor reason to think traditional, monogamous marriage has no justification and abandon it for another form. In response to Professor Radcliffe-Richards, this article recognizes traditional marriage's emergence and continuance through the evolutionary process as evidence that marriage does a better job than any alternative institution. Any institution that emerges from a cultural evolution in peaceful, stable society has demonstrated its fitness. The …

The Hoynes Code, Patricia A. O'Hara

Hoynes Code

This code governs legal education at the University of Notre Dame in all programs and in all locations.

The Notre Dame Law School Honor Code is included as Appendix A.

Contents

Louisiana Law Review

No abstract provided.

Introduction

Louisiana Law Review

No abstract provided.

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

Louisiana Law Review

No abstract provided.

Differentiating Types Of Domestic Violence: Implications For Child Custody, Nancy Ver Steegh

Louisiana Law Review

No abstract provided.

Rhetoric, Divorce And International Human Rights: The Limits Of Divorce Reform For The Protection Of Children, Barbara Stark

Louisiana Law Review

No abstract provided.

Collaborative Practice: A New Opportunity To Address Children's Best Interest In Divorce, Susan Gamache

Louisiana Law Review

No abstract provided.

The Legal Definition Of Parenthood: Uncertainty At The Core Of Family Identity, June Carbone

Louisiana Law Review

No abstract provided.

Will Changing The Process Change The Outcome? The Relationship Between Procedural And Systemic Change, Julie Macfarlane

Louisiana Law Review

No abstract provided.