Common Law Commons^™

Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli

Pepperdine Law Review

No abstract provided.

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

Marriage And Its Alternatives, Jeanine Elbaz

Tribeca Square Press

No abstract provided.

Federalism's Fallacy: The Early Tradition Of Federal Family Law And The Invention Of States' Rights, Kristin Collins

Faculty Scholarship

By examining the history of the federal government's role in the regulation of the family, this article joins the work of others who in recent years have begun to piece together the history of the federal government's role in crafting domestic relations law and policy.'⁸ Much of this attention has focused on federal involvement in domestic relations in the late nineteenth and early twentieth centuries, with relatively less consideration given to the pre-Civil War period. Though recent contributions to this field have helped to cure this imbalance, ¹⁹ there remains a strong sense, especially among lawyers and judges, that …

Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright

UF Law Faculty Publications

Historians of Anglo-American family law consider 1857 as a turning point in the development of modern family law and the first big step in the breakdown of coverture and the recognition of women's legal rights. In 1857, The United Kingdom Parliament ("Parliament") created a new civil court to handle all divorce and matrimonial causes, removing the jurisdiction of: the ecclesiastical courts over marital validity; the Chancery over custody of children and separate estates; the royal courts over marital property; and Parliament over full divorce. The new Divorce and Matrimonial Causes Court, a wing of the admiralty and probate courts, would …

The Crisis Of Child Custody: A History Of The Birth Of Family Law In England, Danaya C. Wright

UF Law Faculty Publications

This article attempts to show that the inter-spousal custody cases of the nineteenth century created such a crisis in equity that they eventually demanded a new court structure and a new set of legal doctrines. The custody cases posed such a profound threat to the stability and authority of the Chancery courts that within fifty years an entirely new court system was required. That court system combined the tripartite jurisdictions of the law, equity, and ecclesiastical courts in matrimonial matters. While many scholars and historians have applauded that moment, I would suggest that the new court was merely a way …

Divining The Deep And Inscrutable: Toward A Gener-Neutral, Child-Centered Approach To Child Name Change Proceedings, Lisa Kelly

West Virginia Law Review

No abstract provided.

The Road Less Taken: Annulment At The Turn Of The Century, Chris Guthrie, Joanna Grossman

Vanderbilt Law School Faculty Publications

It is hardly surprising that certain legal institutions--adoption, wills, and guardianship--have lasted through the centuries. Each meets a different, seemingly timeless need: providing parenting for orphans or abandoned children, distributing property at death, and dealing with legal incapacity, respectively. Similarly, divorce, though it appeared somewhat later, took hold and persisted for an obvious reason-the increasing demand for a legally sanctioned way to terminate broken marriages. The endurance of annulment, however, particularly in the face of increasingly liberalized divorce laws, defies easy explanation. The existence of annulment prior to the mid-nineteenth century is easily explained. Until 1857, England was a "divorceless …

Husband And Wife Are One - Him: Bennis V. Michigan As The Resurrection Of Coverture, Amy D. Ronner

Michigan Journal of Gender & Law

Although the legal fictions of coverture and guilty property have been repudiated by statutes and the Court respectively, the Supreme Court implicitly resurrected and fused the coverture and guilty property myths in Bennis v. Michigan. In that decision, the Court approved the forfeiture of Ms. Bennis' interest in a car in which her husband engaged in sexual activity with a prostitute. This Article explores that resurrected conglomerate in three parts. Part I is a concise review of the feudal doctrine of coverture and the disabilities it imposed on married women. Part II focuses almost entirely on the decision in …

How Do Judges Decide Divorce Cases?: An Empirical Analysis Of Discretionary Decision Making, Marsha Garrison

Faculty Scholarship

No abstract provided.

What To Do When There's No "I Do": A Model For Answering Damages Under Promissory Estoppel, Neil G. Williams

Washington Law Review

Since its inception in the seventeenth century, the common-law action for breach of promise to marry has been the subject of recurrent legal debates. Beginning in the 1930s, some states began passing statutes that abolished the action altogether. Even so, today about half of American jurisdictions retain the breach-of-promise action in some form. This Article advocates a compromise that is not currently the law in any American jurisdiction: parties who breach promises to marry should be liable for damages, but only to the extent they have induced reliance by those to whom they were formerly engaged. Under this proposed model, …

Rock-A-Bye Lawsuit: Can A Baby Sue The Hand That Rocked The Cradle, 28 J. Marshall L. Rev. 429 (1995), Geoffrey A. Vance

UIC Law Review

No abstract provided.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

In Common Law in Southern Africa, Kutner surveys the judgments that are published in South African Law Reports and the official law reports of other southern African states from 1947 to the present. English language commentaries on the cases and statutes discussed in the text are cited in the notes. A Table of Statutes, Table of Cases, Conflict of Laws Index and Torts Index also are provided.

The Incompetent Spouse's Election: A Pecuniary Approach, Susan P. Barnabeo

University of Michigan Journal of Law Reform

Although many state legislatures have preserved the incompetent widow's right of election, these states have developed only general guidelines to govern such an election. These guidelines merely direct the court to act in the "best interests" of the incompetent widow. Courts of the various jurisdictions differ in their approach to determining the "best interests" of the incompetent. Most courts examine all surrounding circumstances regarding the incompetent widow's situation, such as the intent of both the wife prior to her incompetency and of the testator, and the adequacy of the will's provision for the incompetent widow. A minority of jurisdictions, however, …

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

The Unnecessary Doctrine Of Necessaries, Michigan Law Review

Michigan Law Review

This Note argues that neither the traditional nor the modem necessaries doctrines are justifiable in contemporary society. Part I investigates the practical effects of both the traditional and contemporary necessaries doctrines and demonstrates that neither is an effective mechanism for providing support to a needy spouse. While a more successful support remedy might be devised to replace modem and traditional versions of the necessaries rule, Part II shows that yet another reformulation would not be worthwhile because the theoretical underpinnings of the doctrine are faulty. There is no persuasive evidence to establish the existence of the narrow support problem the …

Inequality In Marital Liabilities: The Need For Equal Protection When Modifying The Necessaries Doctrine, Debra S. Betteridge

University of Michigan Journal of Law Reform

This Note contends that the "primary/secondary" modification is unconstitutional because it ignores the husband's equal protection rights while unlawfully stigmatizing women as dependent. Part I discusses how the growing independence of women has led courts to modify the common law doctrine. Part II develops the test that the Supreme Court would apply in judging the constitutionality of any modification of the doctrine. Part III applies this test to the "primary/secondary" modification and concludes that the modification is unconstitutional and, therefore, not a legitimate reformation of the common law necessaries doctrine.

Abortion—Whose Decision?, Geoffrey Bennett, Christina M. Lyon

Journal Articles

Major Points

• The decision in Paton v. Trustees of B.P.A.S.
• Does a husband's "veto power" exist in English Law?
• The rights of the Foetus in English Law
• The rights of the "illegitimate father"
• The American position
• Some reflections

Prohibiting Nonaccess Testimony By Spouses: Does Lord Mansfield's Rule Protect Illegitimates?, Michigan Law Review

Michigan Law Review

Not surprisingly, there has been widespread disagreement concerning the validity of the policies advanced in support of Lord Mansfield's Rule and the efficacy of the rule to promote those policies. This Note assesses the validity of this rule of evidence in order to determine whether it is the most appropriate method of safeguarding the interests affected by the litigation of legitimacy. First, the historical development and justifications for Lord Mansfield's Rule are identified, and, in section II, the extent of the current acceptance of the rule in the United States is delineated. Section III analyzes traditional arguments advanced in support …

A Married Woman's Surname: Is Custom Law?, Julia C. Lamber

Articles by Maurer Faculty

A general awakening of concern for the rights of women has occurred in recent years, and with it the particular problems of married women have been analyzed against a background of centuries of legal and social assumptions. With the impetus of employment discrimination legislation, the proposed equal rights amendment, and litigation raising sex discrimination issues, it is not surprising that many women are actively seeking to retain their pre-marriage names. This movement compels us to re-examine the custom that a woman must assume her husband's surname upon marriage. That such a phenomenon is custom and not law deserves our attention …

Adopted Children In Pennsylvania: A Class Without A Clause, Bruce M. Dolfman, James Charles Schwartzman

Villanova Law Review (1956 - )

No abstract provided.

Widow's Succession In Common-Law Property State To Husband's Rights In Her Half Of Community Property Is Taxable And Valued At One-Half Of Entire Community--In Re Kessler's Estate, Michigan Law Review

Michigan Law Review

While residing with his wife in California, decedent purchased stock, which under California law became community property. The couple later moved to Ohio, a common-law property state, where decedent died. An Ohio probate court approved the executor's determination that the widow's one-half interest in the stock was not subject to the Ohio succession tax. On appeal by the state tax commissioner to the Ohio Supreme Court, held, reversed, three judges dissenting. A wife's succession to her husband's right to manage and control her half of the community property is subject to the Ohio succession tax on joint and survivorship …

Property-Joint Bank Accounts-The Donee's Inter Vivos Interest, David K. Kroll S.Ed.

Michigan Law Review

The use of joint bank accounts has become widespread throughout the United States in recent years and has been the source of considerable litigation and comment. The predominant importance of this type of account is that it allows funds remaining at the death of a co-depositor to pass to the survivor without the necessity of a will. This aspect of the account, causing it to be known sometimes as a "Poor Man's Will," has been the focal point of the attention given to the transaction; and today, after more than half a century of uneven treatment by the courts, all …

Chancery Practice On The American Frontier: A Study Of The Records Of The Supreme Court Of Michigan Territory, 1805-1836, William Wirt Blume

Michigan Law Review

The act of Congress of January 11, 1805, which created Michigan Territory out of Indiana Territory, provided that the new territory should have a government "in all respects similar" to that provided for the Northwest Territory by the Ordinance of 1787. The Ordinance had provided for the appointment of a court to consist of three judges who should have "a common law jurisdiction. "

The Formalities Essential To A Valid Marriage In Indiana

Indiana Law Journal

No abstract provided.

Husband And Wife - Right Of Wife To Sue For Loss Of Consortium Due To Negligent Injury To Husband, James M. Porter S.Ed.

Michigan Law Review

Plaintiff brought an action for loss of consortium with her husband, allegedly due to defendant's negligent injury of the husband. In a prior suit the husband's cause of action against the defendant had been settled and dismissed with prejudice. The trial court dismissed the present suit for failure to state a cause of action. On appeal, held, reversed. The wife has a valuable property right of consortium. Iowa statutes pertaining to the rights of married women clearly indicate the intent of the legislature to remove the common law bar of coverture that prevented a wife from maintaining an action …

Common Law Marriage-A Legal Anachronism

Indiana Law Journal

No abstract provided.

Support Rights And Duties Between Husband And Wife, Monrad G. Paulsen

Vanderbilt Law Review

According to the common law a husband was entitled to his wife's earnings and most of her personal property in addition to the pleasure of her company and services in the home. These advantages have been considered the quid pro quo for the man's duty of support. Today, because of legislation, most of a husband's legal control over the income and means of his wife is gone. If a husband's duty to support is to be grounded in a reciprocal benefit to him, that benefit is derived almost wholly from the wife's obligation to be a wife and to live …

The Law Of Infants' Marriages, Robert Kingsley

Vanderbilt Law Review

Just as the law requires, for ordinary contracts, that a party thereto must have reached an age sufficient to give him reasonable discretion, so, in connection with the contract of marriage, the law has required that the parties be not too immature. It must be remembered, however, that the word "infant" is not one of fixed meaning: when used with reference to ordinary contracts, and without further qualification, it usually means a person under twenty-one years of age; but in the field of criminal law the dividing line between "infancy" and "adult" responsibility is fixed at a lesser age (14 …