Law Commons^™

And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg

Matthew E Feinberg

The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.

The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …

To Have And To Hold, For Richer Or Richer: Premarital Agreements In The Comparative Context, Margaret Ryznar, Anna Stępień-Sporek

Margaret Ryznar

The premarital agreement, perhaps one of the world’s most unromantic documents, also happens to be quite powerful and complex. Although its most highly-publicized use has been to control post-divorce property division, the premarital agreement’s most significant importance is in its power to circumvent the statutory defaults governing spouses’ rights and responsibilities not only during divorce or death, but also during marriage. However, the enforceability of premarital agreements is subject to procedural and substantive review in the United States. Such agreements also raise universal public policy issues with regard to the meaning of fairness and the limits on freedom of contract. …

Kidnapped From That Land Ii: A Comparison Of Two Raids To Save The Children From Polygamy, Linda F. Smith

Linda F. Smith

In the spring on 2008 America watched as over 400 children were removed from their polygamist parents on the Yearning for Zion Ranch in rural west Texas. That raid was eerily reminiscent of the Short Creek Raid of 1953, meant to rescue the children from the same polygamist group in Arizona and Utah. This article compares and contrasts the two raids in light of changes to child protection law in the intervening years. Despite advances in our understanding of child development and in our respect for constitutional rights, the Texas raid repeated and compounded the mistakes of the Short Creek …

Finding A Reasonable Way To Enforce The Reasonable Efforts Requirement In Child Protection Cases, Jeanne M. Kaiser

Jeanne M. Kaiser

Abstract: Under federal law, state child protection agencies are required to exert “reasonable efforts” to reunite abused and neglected children with their parents before seeking to terminate parental rights and free the children for adoption. The scope of this requirement is undefined in federal statutes and in the statutory law of many states. As a result, it has fallen to appellate courts to determine the degree of effort a state agency must exert before the relationship between a parent and a child is severed. This has proven no easy task. By the time a parental termination case has reached an …

Tribal Marriages, Same-Sex Unions, And An Interstate Recognition Conundrum, Mark Strasser

Mark Strasser

When justifying the recognition of Native American polygamous unions, courts tended to appeal the rationale that unions valid where celebrated would be valid everywhere. Yet, courts would not recognize polygamous unions that were celebrated on non-tribal lands, even if those marriages had been valid where celebrated. The focus of this essay is on why Native American polygamous unions tended to be recognized, and the implications that these recognition practices might have for the validity of same-sex marriages across state lines.

Interstate Marriage Recognition And The Right To Travel, Mark Strasser

Mark Strasser

Historically, states were forced decide whether to recognize a marriage, valid where celebrated, that could not have been celebrated locally. As a general rule, non-incestuous, non-polygamous marriages that were valid in the domicile at the time of celebration were treated as valid everywhere, although courts split with respect to how to apply the rule to interracial marriages. Yet, these marriage recognition practices occurred in a context where it was believed that the United States Constitution imposed no limitations on the ability of states to refuse to recognize a marriage validly celebrated elsewhere. This article examines interstate marriage recognition practices, and …

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

Abstract The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate …

To Work, Or Not To Work? The Immortal Tax Disincentives For Married Women, Margaret Ryznar

Margaret Ryznar

Among the most fundamental barriers to the aggressive participation of many married women in the work force are the disincentives for secondary income earners embedded in the federal tax code. Specifically, the current code contains a marriage penalty, which is aggravated by the progressive nature of taxation and any potential increases in income taxation. Meanwhile, child care expenses, a prerequisite for entry to the labor market, are treated inadequately. Although these immortal problems persist despite political pushes for relief, new attention to this topic is warranted given the Obama Administration’s pledge for tax law reform. If the principle to be …

Shaping Parental Authority Over Children's Bodies, Alicia Ouellette

Alicia Ouellette

U.S. law treats parental decisions to size, shape, sculpt, and mine children’s bodies through the use of non-therapeutic medical and surgical interventions like decisions to send a child to a particular church or school. They are a matter of parental choice except in extraordinary cases involving grievous harm. This Article questions the assumption of parental rights that frames the current paradigm for medical decisionmaking for children. Focusing on cases involving eye surgery, human growth hormone, liposuction, and growth stunting, I argue that by allowing parents to subordinate their children’s interests to their own, the current paradigm distorts the parent-child relationship …

Shaping Parental Authority Over Children's Bodies, Alicia Ouellette

Alicia Ouellette

U.S. law treats parental decisions to size, shape, sculpt, and mine children’s bodies through the use of non-therapeutic medical and surgical interventions like decisions to send a child to a particular church or school. They are a matter of parental choice except in extraordinary cases involving grievous harm. This Article questions the assumption of parental rights that frames the current paradigm for medical decisionmaking for children. Focusing on cases involving eye surgery, human growth hormone, liposuction, and growth stunting, I argue that by allowing parents to subordinate their children’s interests to their own, the current paradigm distorts the parent-child relationship …

A Comprehensive Blueprint For A Crucial Service: Florida’S New Supervised Visitation Strategy, Nat S. Stern

Nat S Stern

No abstract provided.

Incompetence To Maintain A Divorce Action: When Breaking Up Is Odd To Do, Douglas Mossman, Amanda N. Shoemaker

Douglas Mossman

The law has well-established provisions for handling divorce actions initiated on behalf of persons already adjudged incompetent or by competent individuals against incompetent spouses. But how should a court respond if a mentally ill petitioner who is competent to manage most personal affairs seeks to divorce a spouse for bizarre, very odd, or crazy-sounding reasons? Whether to allow a divorce action when the petitioner is motivated by psychotic ideas about a spouse is a matter addressed in just a few published cases, and then only indirectly. Largely unanswered are questions about whether domestic relations courts have the authority to stop …

Autonomy Feminism: An Anti-Essentialist Critique Of Mandatory Interventions In Domestic Violence Cases, Leigh Goodmark

Leigh Goodmark

In the 1970s and 80s, feminists led the way in crafting and advocating for policies to address domestic violence in the United States—and those feminists got it wrong. Desperate to find some way to force police to treat assaults against spouses as they would strangers, the battered women’s movement seized on the idea of mandatory arrest—relieving police of discretion and requiring them to make arrests whenever probable cause existed. But mandatory arrest also removed discretion from the women that the policy purported to serve, a trend that has come to characterize domestic violence law and policy. Later policy choices, like …

You Take The Embryos But I Get The House (And The Business): Recent Trends In Awards Involving Embryos Upon Divorce, Mark Strasser

Mark Strasser

Various state courts have been asked to decide who should have control of remaining frozen embryos upon divorce. Different models have been proposed, ranging from enforcement of prior agreements to balancing the needs and desires of the parties to requiring both parties to agree before implantation can take place. This article discusses some of these models, concluding both that the enforcement of the initial agreement model is preferable to the others proposed and that one of the most popular current models--the contemporaneous consent model—is a public policy disaster that should be repudiated at the earliest opportunity.

Married Against Their Will? Toward A Pluralist Regulation Of Spousal Relationships, Shahar Lifshitz

Shahar lifshitz

This article addresses the regulatory regime governing the relationships between unmarried cohabitants. In the article I challenge the conventional divide between conservative and liberal approaches: on one hand, moral condemnation of non-marital conjugal relationships and public policy in favor of marriage lead conservatives to reject the application of marriage law to cohabitating partners. On the other hand, drawing on principles of freedom, tolerance and equality, liberals tend to equate the mutual legal commitments of cohabitants with those of married partners. I break with conventional analysis by offering a novel liberal model that separates between the mutual obligations of cohabitants and …

Married Against Their Will? Toward A Pluralist Regulation Of Spousal Relationships, Shahar Lifshitz

Shahar lifshitz

MARRIED AGAINST THEIR WILL? TOWARD A PLURALIST REGULATION OF SPOUSAL RELATIONSHIPS Shahar Lifshitz

This article addresses the regulation of the relationships between unmarried cohabitants. In the article I challenge the conventional divide between conservative and liberal approaches: On one hand, moral condemnation of non-marital conjugal relationships and public policy in favor of marriage lead conservatives to reject the application of marriage law to cohabitating partners. On the other hand, based on principles such as freedom, tolerance and equality, liberals tend to equate the mutual legal commitments of cohabitants with those of married partners. I break with conventional analysis by offering …

Wto Dispute Resolution: Short-Term Solutions Providing The Foundation For Long-Term Trade Agreements, Patrick M. Delaney

Patrick M Delaney

No abstract provided.

The Pursuit Of Life, Liberty, Happiness…And Fairness? Property Division In American And English Big Money Divorce Cases, Margaret Ryznar

Margaret Ryznar

Eyebrows have recently arched not only at the high sums involved in big money divorce cases, but also at the amount of ink spilled on this relatively small subset of divorce cases. Yet, it is precisely in big money cases that fairness acquires substantial haziness. Is it fair for a high-wage earner to pay an ex-spouse half of his future profits? Or, would it be fairer for the ex-spouse to be awarded less than half, but still receive millions of dollars? Such questions are particularly acute in short marriages or when one spouse is at fault for the divorce. Courts …

The Slip And Fall Of The California Legislature In The Classification Of Personal Injury Damages At Divorce And Death, Helen Y. Chang

Helen Y Chang

This article critiques California’s classification and treatment of personal injury damages at divorce and death. Of the nine community property states, California is the only state not to follow a replacement or analytic approach in classifying personal injury damages. Since the current statute was enacted in 1968, California has seen important developments in no-fault divorce reform, the rise of women’s rights, and tort law but California has failed to update its mechanistic formula for personal injury damages in the marital property context.

California’s present rule classifies personal injury damages as community property during marriage but awards the monies to the …

Clitoridectomy And The Economics Of Islamic Marriage And Divorce Law - Ryan M Riegg - 2009, Ryan M. Riegg

Ryan M. Riegg

No abstract provided.