Law Commons^™

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 …

The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton

Faculty Publications

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover – and one in ten U.S. women do – experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who …

Ten Questions Every Cohabitant Should Think About Before Moving In, Robin F. Wilson

Scholarly Articles

None available.

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 …

Rethinking Children As Property, Kevin Noble Maillard

College of Law - Faculty Scholarship

Despite the collective view in law and social practice that it is intrinsically taboo to consider human beings as chattel, the law persists in treating children as property. Applying principles of property, this Article examines paternity disputes to explain and critique the law’s view of children as property of their parents. As evidenced in these conflicts, I demonstrate that legal paternity exposes a rhetoric of ownership, possession, and exchange. The law presumes that a child born to a married woman is fathered by her husband, even when irrefutable proof exists that another man fathered the child. Attempts by the non-marital …

Collegiality And Individual Dignity, Tobias Barrington Wolff

All Faculty Scholarship

This Essay identifies and describes the tension between the norms of collegiality and basic principles of individual dignity that LGBT scholars and lawyers encounter when confronted with the dehumanizing arguments that are regularly advanced by opponents of equal treatment under law for lesbian, gay, bisexual and transgender people. It is a transcript of remarks delivered at a March 2012 symposium on the Defense of Marriage Act at Fordham Law School, with minimal edits for publication.

Decoupling Taxes And Marriage: Beyond Innocence And Income Splitting, Michelle Lyon Drumbl

Scholarly Articles

Fourteen years ago, members of Congress sympathetically listened as divorcees testified to their struggles to raise children while being pursued by the Internal Revenue Service for tax debts, often unknown to them, that were attributable to their ex-husbands' income. Rather than adopting one of many proposals to end joint and several liability, Congress instead elected to expand the grounds on which these individuals could seek relief from such liability. Since that time, taxpayers have seen a steady expansion of the grounds for so-called “innocent spouse relief” that has evolved through a combination of legislative, administrative, and judicial action. Yet the …

Between Tradition And Progress: A Comparative Perspective On Polygamy In The United Satates And India, Cyra Akila Choudhury

Faculty Publications

Both the United States and India have had longstanding experiences with polygamy and its regulation. In the United States, the dominant Protestant majority has sought to abolish Mormon practices of polygamy through criminalization. Moreover, the public policy exception has been used to deny recognition of plural marriages conducted legally elsewhere. India’s approach to polygamy regulation and criminalization has been both similar to and different from that of the United States. With a sizable Muslim minority and a legal framework that recognizes religious law as family law, India recognizes polygamy in the Muslim minority community. However, it has criminalized it in …

The First Father: Perspectives On The President's Fatherhood Initiative, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This short article presents an analysis of the thirteen-year-old President's Fatherhood Initiative utilized by the executive branch to tackle the problem of absent fathers in America. It argues that this social policy attempts to recapture the economic incentives central to the controversial Moynihan Report of 1965, emphasizing patriarchal and classist solutions to America's family crisis. The programs instituted by the Fatherhood Initiative stigmatize black and brown fathers and fail to address underlying government policy issues that impact their ability to be present and financially supportive in their children's lives. The programs still emphasize the marriage dyad as a cure-all rather …

The Internationalization Of American Family Law, Barbara Stark

Hofstra Law Faculty Scholarship

Even fifty years ago, the United States was a superpower and Americans traveled for pleasure and worked abroad. Then, like now, the United States was a magnet for immigrants seeking freedom, or asylum, or opportunity. Then, like now, human relationships crossed geographical and political boundaries, challenging the limits of family law.

But globalization and the vast migrations of capital and labor that have accompanied it in recent decades have transformed family law in once unimaginable ways. Families have been torn apart and new families have been created. Borders have become more porous, allowing adoptees and mail order brides to join …

Reconfiguring Sex, Gender, And The Law Of Marriage, Deborah Widiss

Articles by Maurer Faculty

This article brings together legal, historical, and social science research to analyze how couples allocate income-producing and domestic responsibilities. It develops a framework—what I call the marriage equation—that shows how sex-based classifications, (non-sex-specific) substantive marriage law, and gender norms interrelate to shape these choices. Constitutional decisions in the 1970s ended legal distinctions between the duties of husbands and wives but left largely in place both gender norms and substantive rights within marriage, tax, and benefits law that encourage specialization into breadwinning and caregiving roles. By permitting disaggregation of the marriage equation, the new reality of same-sex marriage can serve as …

Marriage Fraud, Kerry Abrams

Faculty Scholarship

This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in the twentieth century, a massive expansion of public benefits tied to marriage prompted new marriage fraud doctrines to develop in various areas of the law, shifting the concept of the injured party from the defrauded spouse to the public at large. It proposes a framework …

A Horrible Fascination: Segregation, Obscenity, & The Cultural Contingency Of Rights, Anders Walker

All Faculty Scholarship

Building on current interest in the regulation of child pornography, this article goes back to the 1950s, recovering a lost history of how southern segregationists used the battle against obscenity to counter the Supreme Court’s ruling in Brown v. Board of Education. Itself focused on the psychological development of children, Brown sparked a discursive backlash in the South focused on claims that the races possessed different cultures and that white children would be harmed joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal …

Changing The Marriage Equation, Deborah A. Widiss

Articles by Maurer Faculty

This Article brings together legal, historical, and social science research to analyze how couples allocate income-producing and domestic responsibilities. It develops a framework—what I call the “marriage equation”—that shows how sex-based classifications, (non-sex-specific) substantive marriage law, and gender norms interrelate to shape these choices. The marriage equation has changed over time, both reflecting and engendering societal preferences regarding the optimal allocation of breadwinning and caretaking responsibilities.

Until fifty years ago, sex-based classifications in family and employment law aligned with gender norms to enforce an ideology of separate spheres for men and women. The groundbreaking sex discrimination cases of the 1970s …

Private Parties, Legislators, And The Government's Mantle: On Intervention And Article Iii Standing, Suzanne B. Goldberg

Faculty Scholarship

This essay takes up questions regarding whether initiative proponents and legislators can defend a law in federal court when the government declines to defend. Looking first at intervention under the Federal Rules of Civil Procedure, I argue that neither has the cognizable interest needed to enter an ongoing lawsuit as a party. Yet even if they are allowed to intervene, these would-be defenders of state or federal law cannot take on the government’s mantle to satisfy Article III because the government’s standing derives from the risk to its enforcement powers, which is an interest that cannot be delegated to others. …

Of Wife And The Domestic Servant In The Arab World, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The author asserts to avoid common misunderstandings on the relevance of Sharia to modern women in the Arab World that a) Shari’s relevance to the lives of modern women in the Arab World has been largely confined to the area of family law, b) in the modern nation state Sharia has been codified, i.e., certain rules derived from Islamic jurisprudence on the family have been selected and passed as laws, each nation state having its own unique combination of such rules, c) the courts and the judges who adjudicate disputes on family law are either secular courts/judges, or judges trained …