Family Law
Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality
Why Civil Gideon Won’t Fix Family Law
This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necessarily mean that custody disputes should have the same procedural character as criminal matters, as becomes evident upon exploring some of the social, emotional, and structural qualities that differentiate the two contexts. Enhancing access to justice in family law requires that we design custody dispute resolution systems that honor the constitutionally significant interests at stake while recognizing the truly unique posture in which separating parents litigate. To pursue civil Gideon as a stand-alone reform falls short of this challenge; it accepts the primacy of a lawyer-centric adversary system as the preferred means for resolving custody disputes in the face of growing evidence that this framework does more harm than good for most domestic relations litigants.
Rethinking Criminal Law and Family Status
119 Yale L.J. 1864 (2010). In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their essays, Professors Alafair Burke, Alice Ristroph, and Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the deficiencies of the proposed alternatives. While we appreciate and admire the efforts of our critics to advance this important conversation, we hope this Essay will illuminate why the normative framework of Privilege or Punish remains a more helpful structure to policymakers assessing how family status should intersect with the criminal law within a liberal democracy such as our own.
Disestablishing the Family
119 Yale L.J. 1236 (2010). This Feature explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships. Though substantial rights to what might be called “free exercise of the family” have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Feature suggests reasons to rethink these existing familial establishments. Disestablishment is a risky and unpredictable enterprise, but its risks may be the risks inherent in liberty.
When Family Matters
In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial status and identifying the potential harms that are unleashed when criminal law recognizes family status. This Feature seeks to complement that contribution by situating the authors’ observations within the context of two considerations beyond Privilege or Punish’s immediate focus: chronological trends and the practical realities that can shape application of formal law. By distinguishing criminal law’s traditions from contemporary trends, the Feature identifies both a gradual de-emphasis of legally recognized family forms and an increased willingness to enforce criminal law within families, regardless of how they are comprised. It concludes by arguing that effective enforcement of criminal law within families often requires the criminal justice system to yield to family relationships, not for the purpose of promoting preferred family forms, but to serve the criminal law’s familiar retributive and utilitarian goals.
Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth
Racial Classification in Assisted Reproduction
118 Yale L.J. 1844 (2009). This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the expressive dimension of wrongful discrimination. Even practices marked by innocent motives and benign effects can give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. Race-based differentiation in voting ballots, dating websites, and donor catalogs helps us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.
Constructive Notice Under the Family and Medical Leave Act
118 Yale L.J. 795 (2009).
The Marriage of Family Law and Private Judging in California
116 Yale L.J. 1615 (2007)
Unpacking the Household: Informal Property Rights Around the Hearth
As Aristotle recognized in The Politics, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, have devoted far more attention to the family and to marriage than to the household as such. To unpack the household, this Article applies transaction cost economics and sociological theory to interactions among household participants. It explores questions such as the structure of ownership of dwelling units, the scope of household production, and the governance of activities around the hearth. Drawing on a wide variety of historical and statistical sources, the Article contrasts conventional family-based households with arrangements in, among others, medieval English castles, Benedictine monasteries, and Israeli kibbutzim. A household is likely to involve several participants and as many as three distinct relationships--that among occupants, that among owners, and that between these two groups (the landlord-tenant relationship). Individuals, when structuring these home relationships, typically pursue a strategy of consorting with intimates. This facilitates informal coordination and greatly reduces the transaction costs of domestic interactions. Utopian critics, however, have sought to enlarge the scale of households, and some legal advocates have urged household members to write formal contracts and take disputes into court. These commentators fail to appreciate the great advantages, in the home setting, of informally associating with a few trustworthy intimates. Read Professor Ellickson's Pocket Part Essay adapted from this Article. Read Professor Shoshana Grossbard's Response, Repack the Household: A Response to Robert Ellickson’s Unpacking the Household. Read Professor Robert Pollak's Response, Bargaining Around the Hearth.
Criminal Law Comes Home
116 Yale L.J. 2 (2006) Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misdemeanor domestic violence enforcement that are transforming the role of criminal law in the home beyond the criminal punishment of violence. An important legal tool in this transformation is the protection order, which bans a person from the home on pain of arrest and enables treatment of presence at home as a proxy for violence. Through prosecutors' routine deployment of protection orders in the criminal process at arraignment, plea bargaining, and sentencing, the home is becoming a space in which criminal law deliberately reorders and controls private rights and relationships in property and marriage--not as an incident of prosecution but as its goal. The growing criminal law use of protection orders to prohibit the cohabitation and contact of intimate partners (often when substantial jail time is not imposed) is a form of state-imposed de facto divorce that subjects the practical and substantive continuation of intimate relationships to criminal sanction. This displacement of the choice to live like intimate partners exemplifies the changing legal meaning of the home, wherein the archetype of private space becomes a site of intense public investment suitable for criminal law control. Read Professor Cheryl Hanna's Response, Because Breaking Up Is Hard To Do.
Immoral Purposes: Marriage and the Genus of Illicit Sex
115 Yale L.J. 756 (2006) In Lawrence v. Texas, the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence, however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illicit sex, the genus of licit sex, and marriage. Viewed from this perspective, Lawrence marks the latest intervention in a legal conversation that began when Congress enacted the 1907 Immigration Act and the 1910 Mann Act, each of which prohibited the movement of women across borders--the former, international, the latter, interstate--for "immoral purposes." In the early twentieth century, through these provisions, lawmakers and judges constructed an isomorphic relationship between marriage/nonmarriage and licit sex/illicit sex. The "marriage cure" transported sex across the illicit/licit divide. But courts and legislators came to view these curative powers as a threat to marriage's place in the sociolegal order because individuals used marriage as a tool to evade legal penalties. Thus, they checked the powers of the marriage cure and, in so doing, uncoupled both parts of their original isomorphism. Lawrence represents the culmination of this process: the movement of a sexual relationship across the illicit/licit divide at least in part because it made no claim to marriage. This move reflects the persistent status of marriage as simultaneously powerful in its ability to confer legal privileges and to shield people from the dangers of sexual illicitness, and powerless to protect itself from the taint of those same illicit practices.
Divorcing Marriage from Procreation
114 Yale L.J. 1989 (2005) Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process. This Comment contends that both sides are partly right. I join those commentators who find Goodridge's reasoning flawed but its outcome correct. Where I part ways is in recognizing the vital importance but untapped potential of the Supreme Court's decision in Turner v. Safley. The Turner Court held unconstitutional a Missouri prison regulation denying inmates the right to marry except for "compelling reasons." It is a familiar case, frequently invoked in legal arguments over same-sex marriage to support the proposition that marriage is a fundamental right under our federal constitutional jurisprudence. Too often, however, these arguments miss the totality of what Turner tells us about exactly why marriage is a fundamental right. Because the Turner Court struck down a marriage ban that applied to a population with no legal right to procreate and that provided an exception for pregnancy, the decision undermines any claim that marriage is fundamental because of an inexorable connection to procreation. Part I of this Comment scrutinizes and ultimately rejects the Goodridge court's rational basis analysis. Part II explores the road not taken in Goodridge--the fundamental rights approach of cases such as Loving v. Virginia, Zablocki v. Redhail, and Turner. I argue that for marriage to comport with our fundamental rights jurisprudence, the source of its constitutional definition must be constitutional common law, not individual state statutes. Part III rediscovers Turner as a source of that constitutional definition, concluding that the case is irreconcilable with the view that the possibility of procreation is a necessary affluent of marriage's fundamentality. With Bowers v. Hardwick officially dead, Turner insists that same-sex marriage bans answer to strict, and therefore fatal, scrutiny.
In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State
112 Yale L.J. 1641 (2003) This Article argues that the law has constructed marriage as an institution capable of regulating the rights and responsibilities of even unmarried women. In various ways, the law has constructed the rights of certain groups of unmarried women "in the shadow of marriage": That is, the law--its imagination bounded by the dominant, normative paradigm of private, heterosexual relations--has defined an unmarried woman's legal status by virtue of her contiguous relationship (real or imagined) to marriage. By analyzing the shifting legal construction of widows' rights--particularly, the move away from widows' common-law dower rights--this Article explores the powers and limitations of marriage's shadow. It argues that even as lawmakers have sought to extend marriage's reach to women living outside marriage, they have simultaneously looked to the space outside of marriage's borders in order to define the meaning of marriage proper. A revised history of dower reveals the dynamic relationship between marriage's center and its shadow as the contested sociolegal terrain in which politicians and feminist advocates have--historically and today--debated the meaning of sex equality, as well as the proper relationship among women, the family, and the state.