Family Law
Feature
Time and Punishment
The legal system’s ability to control people’s time is a form of dominion that exacerbates the structural disadvantages that marginalized families already face. Constriction, stretching, and indeterminacy are important aspects of temporal marginalization in the family regulation system. Considering …
Forum
Hayek Goes to Family Court
Applying Hayek’s theory of law and liberty to contemporary American family law, this Essay concludes that family-law scholars—especially those undertaking distributional analyses—would benefit from greater attention to the Hayekian values of predictability, adaptation, and equal application.
Forum
Facilitating Future Workforce Participation for Stay-at-Home Parents: Mitigating the Career Costs of Parenthood
Current policies help parents stay in the workforce after having children. But what about the quarter of American mothers who choose to become stay-at-home moms, then later face employment obstacles? This Essay proposes expanding worker opportunity tax credits and Title VII to help stay-at-home pare…
Article
In Loco Reipublicae
This Article proposes a new framework for children in constitutional law that recognizes children’s rights as developing citizens and parents’ duties to safeguard those rights. An examination of children’s First Amendment right to access ideas illustrates parents’ duty to ensure children are exposed…
Article
Family Law for the One-Hundred-Year Life
Family law is failing older adults, offering neither the family forms older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these problems. This Article responds to these challenges by proposing family law reform …
Forum
Racial Myopia in [Family] Law
Racial myopia in law is a complex phenomenon that centers white identity as the standard. A critique of the Article Family Law for the One-Hundred-Year Life, this Response presents a concrete framework and clarion call for all scholars to address legal issues in a racially inclusive way.
Forum
Radical Early Defense Against Family Policing
What possibilities arise when law-school clinics experiment in challenging a well-oiled system at its untouched margins, within a collective, community-based movement whose lodestar is abolition? This Essay examines this question in the family-policing context and articulates a radical vision of fam…
Forum
Weaponizing Fear
Governor Abbott’s directive that the Texas Department of Family and Protective Services should investigate so-called “abusive sex change procedures” fits within a broader project of weaponizing fear to control marginalized families. The issue is not primarily the directive’s misuse of the family reg…
Forum
Chosen Family, Care, and the Workplace
Although federal law offers, at best, unpaid time off work to care for family members with medical needs, recently enacted state laws guarantee paid leave. This Essay argues the laws are groundbreaking in their inclusion of nonmarital partners, extended family, and other chosen family, and it propos…
Forum
The Case for Creative Pluralism in Adoption and Foster Care
Religious and secular beliefs about marriage and sexuality are often in tension. Partisans on both sides commonly insist that public policy entirely reflect their views, which leads to perpetual conflict. This Essay advocates for pluralistic solutions to such conflicts, using an example from the con…
Forum
Religious Exemptions and the Family
This Essay highlights the threat claims for religious exemptions to antidiscrimination laws pose to the diverse family arrangements that now populate our society. It argues we should not abide efforts to thwart, undermine, and ultimately overturn advances in equality norms in the family based on rel…
Forum
Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce
The prohibition on contingency fee arrangements with divorce lawyers is a relic of the coverture regime. It cannot withstand Due Process scrutiny because the supposed governmental interests it purports to advance—burdening access to the divorce process for economically vulnerable persons—are not leg…
Forum
While They Waited: Pre-Obergefell Lives and the Law of Nonmarriage
This Essay looks at married same-sex couples who, pre-Obergefell, spent time in nonmarital relationships while awaiting the right to wed. In discussing how courts now count those pre-equality years toward the length of couples’ relationships—a decision relevant to adjudicating many benefits—the Essa…
Note
Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn
A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law has increasingly embraced “functional families,” those whose bonds can be traced to cohabitation, while zoning law has narrowed to restrict residency to individuals related by blood,…
Forum
In the Shadow of Child Protective Services: Noncitizen Parents and the Child-Welfare System
The noncitizen parent exists between two often-conflicting legal identities: that of an immigrant and that of a parent. This Essay argues that state child services should strive to mitigate the tension between these identities and take an active role in shielding these parents from immigration conse…
Forum
Top-Down or from the Ground?: A Practical Perspective on Reforming the Field of Children and the Law
Cheryl Bratt responds to Dailey & Rosenbury’s New Law of the Child, arguing for a youth-led movement to reform how children are understood and valued in American culture.
Forum
The (Not So) New Law of the Child
Martin Guggenheim responds to Dailey & Rosenbury’s New Law of the Child, defending the existing "authorities framework" and arguing that any new framework for children’s rights must focus on questions of structural inequality.
Article
The New Law of the Child
This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The authors show how the existing legal regime focuses narrowly on state and parental control over children, and they propose a new framework that promotes a broader range of children’s …
Forum
Nurturing Parenthood Through the UPA (2017)
This Response to Douglas Nejaime’s The Nature of Parenthood shows how the recently approved revisions to the Uniform Parentage Act (UPA)—which expand the ways in which a nonbiological parent may establish her or his parentage—address many of the critical gaps in parentage law identified by NeJaime. …
Article
The Nature of Parenthood
This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary…
Article
Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality
The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however…
Forum
Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality
In Griswold v. Connecticut,1 the Supreme Court ruled that a Connecticut statute criminalizing the use of contraception violated married couples’ privacy rights. On the decision’s fiftieth anniversary, this brief Essay takes cues from a principle at stake in Griswold—that procreative li…
Forum
Roundup: Should We Treat Pregnant Workers Like Disabled Workers?
On December 3, the Supreme Court heard arguments in Young v. United Parcel Service, a case that asks if the Pregnancy Discrimination Act (PDA) entitles pregnant workers to receive the same accommodations as disabled workers.1 Already, the EEOC has issued Enforcement Guidance explaining that d…
Essay
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 necess…
Feature
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 Ala…
Feature
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 stat…
Feature
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-stat…
Note
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 exp…
Forum
Unpacking the Household: Informal Property Rights Around the Hearth
Lawyers and legal scholars understandably tend to focus on domains of life where law is central. There is much to be learned, however, from domains where people deliberately structure their affairs to minimize formalities such as written contracts and legal entanglements. Just as studying conditions…
Forum
Bargaining Around the Hearth
In Unpacking the Household: Informal Property Rights Around the Hearth, Robert Ellickson argues that as long as members of a household expect their relationship to continue, norms, rather than law, will determine allocations among them. More specifically, Ellickson argues that in “midgame” house…
Forum
Repack the Household: A Response to Robert Ellickson’s Unpacking the Household
In the United States and many other industrialized countries, there is much concern that younger generations fail to invest the amount of household production time that is needed for society to reproduce itself and for children to receive the education that will make them into productive citizens. I…
Article
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, h…
Forum
Because Breaking Up Is Hard To Do
Just about everyone has been in a romantic relationship that, in hindsight, should have ended sooner than it did. Why do people stay? Hope, or commitment, or because they share a lease or she owns the car. Life and love are complicated, and, as Neil Sedaka sang, “Breaking up is hard to do.” That…
Article
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 misd…
Article
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 illi…
Comment
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-fashio…
Article
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": Th…