Family Law Commons^™

A Dilemma Of Doctrinal Design: Rights, Identity And The Work-Family Conflict, Lauren Sudeall

Vanderbilt Law School Faculty Publications

This symposium article suggests that with regard to the work-family conflict, we may have exhausted doctrine’s potential in setting a constitutional foundation for women to be treated as equals in the workplace and requiring that they not be discriminated against in the event that they decide to start a family. For purposes of this piece, those accomplishments constitute the first phase or “first generation” of progress. This article is concerned with how doctrine relates to “second generation” issues arising from the work-family conflict: how to balance work and family once some initial level of equality has been achieved; how to …

Grandma In The White House: Legal Support For Intergenerational Caregiving, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Marian Robinson’s status as the live-in First Grandmother is an example of a growing trend in the United States - the multigenerational family. The 2010 United States Census Data reflects that the number of households with multiple generations living under one roof has increased by 25% this decade. Mrs. Robinson also reflects another new development in American families: grandparents helping their adult children with caregiving. More than 70% of grandparents are taking care of their grandkids on a regular basis, and 13% are primary caretakers. Many grandparents treat their role as caregiver like a profession, and they sacrifice jobs, residences, …

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret F. Brinig, Linda C. Mcclain

Journal Articles

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs. A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be …

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret F. Brining, Linda C. Mcclain

Faculty Scholarship

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs.

A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be let …

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 …

Unsex Mothering: Toward A New Culture Of Parenting, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

In this Article, I observe that “mothering” and “fathering” have been inappropriately tethered to biosex. “Mothering” should be unsexed as the primary parental relationship. “Fathering,” correspondingly, should be unsexed from its breadwinner status. In an ideal world, people now considered “mothers” and “fathers” would be “parents” first, a category that includes all forms of caretaking. One could even imagine an androgynous world in which parenting has no sexed subcategories, whether attached to biosex or not. I doubt our world is anywhere near that; I also wonder whether universal androgyny is a utopian ideal worth pursuing. I instead focus in this …

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

University of Colorado Law Review

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, a 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 …

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 …

Symposium: Radical Nemesis: Re-Envisioning Ivan Illich's Theories On Social Institutions Foreword, Jennifer L. Levi

Faculty Scholarship

The eight articles in this Symposium issue reflect the divergent topics that Ivan Illich managed to reflect upon in his life’s works. The topics include discussion of prisons, education, family law structures, privatization of welfare services and its impact on labor consciousness, media, and the rule of law.

The Symposium was a daylong conference of ideas that invited the engagement of those who joined. The students of Illich and students of students of Illich shared with those of us who had not studied at his side, his passion for ideas, his insights, and his invitation for anyone with or without …

To Lynch A Child: Bullying And Gender Nonconformity In Our Nation's Schools, Michael J. Higdon

Indiana Law Journal

No abstract provided.

Is Law And Art Or A Science?: Comments On Objectivity, Feminism, And Power, Joan Williams

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Exporting Subjects: Globalizing Family Law Progress Through International Human Rights, Cyra Akila Choudhury

Faculty Publications

This article examines the global export of domestic U.S. legal projects and strategies in the realm of family law and gender justice to South Asia. While such projects have undoubtedly achieved substantial gains for women in the U.S., there have also been costs. At a remove of two decades, scholars have now begun to theorize those costs and argue that feminism needs to reconsider its commitments to particular projects that have been held central to women’s emancipation. Yet much of these critiques have not reached the transnational women’s movements that are led by U.S. feminist activists and scholars. Relying on …

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Publications

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay …

A Diva Defends Herself: Gender And Domestic Violence In An Early Twentieth-Century Headline Trial, Carolyn B. Ramsey

Publications

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend …

Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth Emens, Berta E. Hernández-Truyol, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Publications

(Excerpt)

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family …

All In The Family, Angela Onwuachi-Willig, Jacob Willig-Onwuachi

Faculty Scholarship

Your essay “Pregnant Man?” highlights many significant issues concerning the intersection of law, gender, sexuality, race, class, and family. In an earlier article A House Divided: The Invisibility of the Multiracial Family, we explored many of these issues as they relate to multiracial families, including our own. Specifically, we, a black female-white male married couple, analyzed the language in housing discrimination statutes to demonstrate how law and society function together to frame the normative ideal of family as heterosexual and monoracial. Our article examined the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of …

It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, Lolita Buckner Inniss

Publications

No abstract provided.

Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth F. Emens, Berta E. Hernández-Truyol, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In late winter 2009, the airwaves came alive with stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are the vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother’s well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long …

The State As Batterer: Learning From Family Law To Address American's Family-Like Racial Dysfunction, Angela Mae Kupenda

Journal Articles

The women's movement for equality bootstrapped to the movement for equality for Blacks. Now the reverse can happen. This Article uses family law and the plight of some battered women, as a lens to address analogous racial conflicts in the broader American family.

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford, Lolita Buckner Inniss

Publications

In early 2009 the airwaves came alive with sensational stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother's well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long history …

Marriage Equality For Same-Sex Couples: Where We Are And Where We Are Going, Jennifer Levi

Faculty Scholarship

The legal landscape for same-sex couples seeking to marry has shifted dramatically over the last five years. On October 10, 2008, the Connecticut Supreme Court became the third state high court to rule that its state constitution could not sustain a statutory framework that excludes same-sex couples from marrying, following the Massachusetts Supreme Judicial Court on November 18, 2003, and the California Supreme Court on May 15, 2008. Same-sex couples throughout the country have gotten married in Connecticut, Massachusetts, California, and in other countries throughout the world that provide full marriage equality, including in Canada. The Author discusses the developments …

The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock

Journal Articles

Family policy and the law based on it assume universals. That is, if marriage improves the welfare of the majority of couples and their children, it is worth pushing as a policy initiative. Further, laws will be written (or kept on the books) that privilege marriage over other family forms. Similarly, research that tells us that divorce harms children except following the relatively small number of highly conflicted marriages, spawns efforts to preserve troubled marriages or even to roll back liberal or relatively inexpensive divorce laws. With yet another example, since adopted children mostly do better than children left either …

(Mis)Appropriated Liberty: Identity, Gender Justice And Muslim Personal Law Reform In India, Cyra Akila Choudhury

Faculty Publications

This article argues that in order to emancipate Indian-Muslim women from an outdated family legal code, their position at the intersection of gender and a minority religion must be taken seriously. Proposals for reform that have been suggested by Western liberal, secular feminists that ignore the importance of women's religious affiliation fail to do this. Moreover, by making assumptions about the strength of secularism in India, the willingness of the state to enact legal reforms driven by gender concerns, and by failing to acknowledge the limits of formal rights alone in changing norms, these scholars do not account for the …

Friends With Benefits, Laura A. Rosenbury

UF Law Faculty Publications

Family law has long been intensely interested in certain adult intimate relationships, namely marriage and marriage-like relationships, and silent about other adult intimate relationships, namely friendship. This Article examines the effects of that focus, illustrating how it frustrates one of the goals embraced by most family law scholars over the past forty years: the achievement of gender equality, within the family and without.

Part I examines the current scope of family law doctrine and scholarship, highlighting the ways that the home is still the organizing structure for family. Despite calls for increased legal recognition of diverse families, few scholars have …

Same-Sex Marriage In New York, Lewis A. Silverman

Scholarly Works

No abstract provided.

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

ExpressO

This paper is an analysis of the petitions, answers, affidavits, and court docket for the first nine years of the English divorce and matrimonial causes court. It examines in detail the child custody, alimony, gender, and class components of the court’s first nine years. After analyzing the petitions and court docket along gender lines for the different causes of action (divorce, separation, annulment, and restitution of conjugal rights), and their success rate by gender and by age of the marriage, it then breaks down marriages by age and speculates on a variety of causes for the different results and considers …

Report Of The Working Group On The Role Of Sex And Sexuality, Working Group On The Role Of Sex And Sexuality

Nevada Law Journal

No abstract provided.

Adverse Possession Of Identity: Radical Theory, Conventional Practice, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

This Article examines the conditions under which acting as if one has a particular legal status is sufficient to secure that status in the eyes of the law. Legal determinations of common-law marriage, functional parenthood, and racial identity share striking similarities to adverse possession law – these doctrines confer legal status on those who are merely acting as if they have that legal status. In each case, the elements of a legal claim are strikingly similar: physical proximity, notoriety and publicity, a claim of right, consistent and continuous behavior, and public acquiescence. The reason public performance is critical is that …