Category: Family Law

6

Involuntary Divorce

Here’s a question that I have about the upcoming same-sex marriage argument.  Suppose you are a same-sex couple that lives in one of the circuits that held that there is a constitutional right to same sex marriage and where the cert. petition was denied last Fall.  In other words, the judgment is final.  Your home state did not legalize same-sex marriage, but (relying on the circuit case), you got married.  In June, the Supreme Court holds that there is no right to same-sex marriage (unlikely, but humor me).

Would that decision means that you are legally divorced?  And if that is true, could one of the parties avail themselves of the state’s divorce law in, say, two years if the relationship breaks down?  How would that work?

0

Buffett on Family Business: Beat the Third Generation Curse

warren buffettWarren Buffett is very good at spotting great family businesses. What does he look for? How can his filters help family businesses prosper?

For one, they can mitigate one of the greatest dangers: the third generation “curse.” This refers to how few family businesses survive beyond the third generation, let alone prosper.

An under-appreciated fact about Berkshire Hathaway, the conglomerate Buffett built: virtually all its family businesses boast second or third generation descendants who rival or outshine previous generations. That is rare among family businesses.

So while every family and business situation differs, Berkshire’s two dozen family companies are a good place to look for insight about multi-generational prosperity in the family business.

Studying Berkshire’s family businesses, I found that they are united by the following values. These values are important factors in their success, in the founding generation and subsequent ones.

Family business members, and their professional advisors, whether in law, accounting, or other fields, would do well to ponder these points.

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6

Law and the Marriage Gap

 

In his column this week at Al-Jazeera on inequality and marriage,  David Cay Johnston uses our recent book, Marriage Markets: How Inequality is Remaking the American Family, to show why marriage has become a class privilege. He suggests a variety of policies to promote investment in the next generation, policies that start to get at an issue we struggled with in the book (and that we thought would be an easy question): what role did the law play in the emerging class gulf in family formation, with the college graduates who have long been the leading champions of the sex revolution settling down into very traditional marriages while marriage seemed to be disappearing from working class communities that once espoused more conventional values?

Our initial inclination was to say not much. The first section of the book argued that the change in the economy and, particularly the disappearance of well-paying stable blue collar jobs for men, explained most of the shift in family form and, indeed, that the economic changes produced fairly predictable cultural changes that increased gender distrust and produced less reliance on marriage To be sure, we acknowledged Carl Schneider’s work two decades ago arguing that family law plays a “channelling function” in reinforcing shared notions of appropriate behavior. But, we also recognized that the class-based marriage divide is not about different norms; most Americans, regardless of race or class, expect to marry and value what marriage has to offer in similar ways. They differ primarily   in whether they expect to find a suitable partner and a point in their lives where marriage makes sense.

As we dug deeper into the research, however, we ultimately did come to a different conclusion: a conclusion that the law does matter and has something to do with the decision about whether it makes sense to marry a particular partner. Read More

4

Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

7

Child Safety, Part II

In my last post, I introduced a set of studies that suggest that parents and nonparents alike prefer to invest about twice as much in child safety as adult safety. For purposes of this post, I want to take that descriptive claim as true and ask: What justifies that differential treatment?

One answer is simply that we should respect preferences (almost) regardless of their content. But that seems too quick.

Below are a few thoughts on how we could justify greater protections for children.
I invite readers to add to this preliminary list.

  • Children have more life years ahead of them to live with permanent injury, and lose more life years if they die. This is likely part of the story, but it is an incomplete defense of the data because focusing on life years would not justify providing children with extra protection for temporary injuries like spending one year in the hospital or catching the common cold.
  • Perhaps everyone deserves an opportunity to achieve certain milestones in life, like growing up and falling in love, that often occur during adolescence and young adulthood. To the extent that life years leading up to those milestones are more valuable, we might want to offer younger people more protection. We might also want to ensure that temporary injuries do not impede those opportunities. (Something like this view might be at work here, where one couple recently wrote up a bucket list for their terminally ill infant and went to great lengths to ensure that they checked off each entry.)
  • Children might deserve an open future.

Stay tuned for Part III, where I will discuss what these empirical patterns might mean for tort law …

 

2

Child Safety, Part I

Parents: Do you invest more in your child’s safety than your own? Less? Roughly the same amount?

I’ve been pondering these questions lately. I have numerous friends who have purchased safer cars once they became parents, or suddenly took an interest in the finest of fine print on warning labels. These anecdotes suggest that we invest more time and money in child safety compared to adult safety.  Interestingly, more rigorous empirical examinations support these anecdotes. Those data suggest that parents invest about twice as much in protecting children as they do in protecting themselves, even when both are facing the same probability of experiencing the same harm. Parents are not alone in this preference. Both parents and nonparents appear to want governments to invest about twice as many resources in protecting children as adults. Here’s some of the data:

Untitled

Readers: Does this ring true?

Stay tuned for what these preferences might mean for tort law…

0

Prosecutors vs. Divorce Court Judges

What do prosecutors and divorce court judges have in common?

Although this sounds like the start to a lawyer joke, I think examining the two groups together can yield interesting insights. One commonality is their wide and essentially unreviewable discretion.   Prosecutors can decline to charge altogether or can choose which charges to bring.   Divorce court judges often decide based on broad notions of fairness how to split a couple’s entire life savings, and also have power to prohibit parents from having overnight guests when they have physical custody of their children.

The literature on prosecutors is full of potential solutions to the perceived problems of unchecked discretion. One solution is to provide more judicial review. This has been a popular proposal in family law as well, where commentators seek more appellate review of trial court discretion. In my previous post, I explored ways of incorporating community input into family law decisions. This could be framed as roughly analogous to calls for various forms community policing or notice and comment sentencing.

Other reforms call on prosecutors to voluntarily develop guidelines. I want to explore what that might look like if translated to the family law context. Could judges band together and create local guidelines? The answer appears to be no. Below the fold I argue that, contrary to what most appellate courts have held, there are reasons to think that individual judges should be allowed to publically announce their personal rules of thumb and groups of judges should be allowed to publically create group rules of thumb.

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6

Sex (and Money) in the City

Thanks to Solangel, Dan, and the rest of the folks at Concurring Opinions for inviting me to be a guest blogger this month!

A few weeks ago, an Oklahoma judge was tasked with dividing Harold and Sue Ann Hamm’s $2Billion marital estate. And the judge’s only guidance was to divide it in any way that was, in his mind, “fair,” “just,” and “reasonable.”  Billion dollar divorces like this one highlight long-known problems with divorce law. Namely, that courts have wide and almost unreviewable discretion over many aspects of a divorcing couples’ lives.  When I ask students in my family law class how they would divide a particular marital estate, I generally get a lot of variation.  Many people choose 50%-50%, a substantial number choose 66%-34% or 75%-25%, but there are always a lot of students who choose more extreme divisions, like 90%-10%.  This highlights the lottery-like aspect of many family law issues.

But what can be done? I want to float a controversial idea, and then very briefly explain why it deserves serious attention.

Here’s the idea: Let local governments (like city councils) weigh in on how local judges should exercise their discretion.

The rest is below the fold…

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0

ICWA and Military Families

I want to thank Solangel for having me here at the blog for the month of May. I’ve enjoyed writing posts about our work at the Indigenous Law and Policy Center.

Yesterday I was part of a roundtable discussion at Law and Society with a number of Indian law scholars who all talked for about 10 minutes on their current projects. The eight projects covered everything from the oil spill clean up process to ongoing treaty rights cases to the effect of extractive industry development on human trafficking. All of them were grounded in specific needs for tribes and tribal attorneys. It was an impressive panel.

I spoke about my latest writing project, the intersection of the Indian Child Welfare Act and military families. In Adoptive Couple v. Baby Girl, the Supreme Court based much of its discussion on the biological father’s “abandonment” of his child. Nowhere in the opinion did the Court mention the father’s military service and his year-long deployment to Iraq.

The law that prevented the adoption from moving forward during the father’s deployment, the Servicemembers Civil Relief Act, was amended in 2008 to include any child custody proceeding in the cases that could be stayed when a servicemember cannot be present at the court hearings. However, during the time the father was deployed, the baby stayed with the potential adoptive couple. In a family law situation, the length of a child’s placement receives increasing weight the longer the placement. While the South Carolina courts found that the child should be placed back with her father under the Indian Child Welfare Act, there was reluctance to do it based on the length of time the potential adoptive couple had had the baby. Cases involving service members need to be stayed, but the stay does not contemplate the ramifications on a family law case like Adoptive Couple.

Native people serve at a proportionally higher rate than other groups. In the case of active duty service members, they have the possibility of having to ask a state court to enforce not one relatively unknown federal statute, but two. Investigating how these play out in the case law, and also how the active efforts to preserve the Indian family (as required by ICWA) can be defined include specific services for Native veteran parents are two of the areas I’m working on this summer.

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UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)
Articles

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480

 

Comments

Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548