Category: Family Law


Encouraging Adoption

I thought I’d post on a different topic from what I normally write about.  Here is the question–Should we encourage pregnant women who do not want their child to bring the baby to term and give him or her up for adoption?  If so, how?

Let’s say that you want to implement President Clinton’s abortion standard (“Safe, legal, and rare.”)  How do you make the “rare” part happen without imposing an undue burden on a woman’s right to choose?  One option, of course, involves improvements in birth control (whether you want to call that abstinence, contraception, or whatnot) to minimize unwanted pregnancies.  Another is to convince those who have an unwanted pregnancy to have the child and raise it (though persuasion rather than coercion).  A third option, exemplified by Steve Jobs among others, would be to encourage women to carry the child to term and then give the baby up for adoption.

It strikes me that this last option gets far less attention than it should.  If you are pro-life, you would presumably prefer the possibility of adoption over abortion.  If you are pro-choice, you would presumably prefer the choose for adoption over a mandate.  Thus, one might expect to see policies that would offer incentives to women who elect to give up a child for adoption.  For example, the state could bear the costs of the pregnancy (medical expenses, lost wages, etc.). Or the state could pay women a lump-sum “reward” for bearing the burden of pregnancy when they will not raise the child.  We don’t, though, see such policies.  Why not?

One possibility is that we’d be concerned that not enough adoptions would happen.  In effect, would policies such as I’ve described lead to giant “Oliver Twist” style orphanages?  Another thought is that these policies would simply cost too much money.  Or perhaps people feel like this would be a kind of welfare that rewards irresponsible behavior?  I’m genuinely unsure.


Illinois Law Review, Issue 2012:2 (March 2012)

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University of Illinois Law Review, Issue 2012:2

Please see our website for past issues


Homogeneous Rules for Heterogeneous Families: The Standardization of Family Law When There is no Standard Family – Katharine K. Baker (PDF)

Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)

Sealand, HavenCo, and the Rule of Law – James Grimmelmann (PDF)

David C. Baum Memorial Lecture on Civil Rights and Civil Liberties

Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)


Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)

Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives – J. Matthew Haws (PDF)

The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights – Marcy Zora (PDF)


Personhood Amendments: Be Careful What You Wish For

In the last election, the voters of the State of Mississippi failed to pass a referendum that would have declared a fetus a “person” under the Mississippi Constitution. Specifically, Article III of the constitution of the state of Mississippi would have been amended by adding a new Section 33. Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” Since the defeat of the Mississippi referendum, movements for a similar amendment have arisen in close to a dozen other states and Members of Congress have introduced three bills that would likewise declare a zygote to be a person from conception. Much of the debate about the defeated Mississippi amendment and the subsequent proposals involved the question of the impact of the laws on abortion and other reproductive issues such as birth control. However, one potential aspect of these proposals appears to have been ignored in the discussions; what other legal rights would attach to the zygote/fetus once “personhood” is conferred.

The American legal system has wrestled with the legal status of minors for more than a Century. At one time, parents and guardians had total control over the lives of the children under their charge. Parents, primarily fathers were entitled to the services of their children and could under certain circumstances kill their children with the approval of the government. Moreover, parents could “lease” their children out to others for the payment of debts, the generation of income, or merely because they could not afford to support and maintain their children. In essence, the law viewed children as property.

Beginning in the latter part of the 19th Century, reformation movements began to challenge the status and treatment of children and undermined the legal concept of children as property. Child labor laws, compulsory education laws, and eventually laws prohibiting child abuse and neglect created a new perception of children as entity worthy of protection from their parent, guardians and even employers. Children were no longer property, but were people. However, once the law determined that children were not the property of their parents or guardians, the question of what status children hold under the law has been a challenging proposition. Several cases developed a jurisprudence involving parents’ responsibilities related to the actions involving their children. In Meyers v. Nebraska (teaching a foreign language before 8th grade), Pierce v. Society of Sisters (children attending private school), Prince v. Massachusetts (child distributing religious literature at night), and West Virginia v. Barnette (children forced to say the pledge of allegiance), the U.S. Supreme Court examined the liberty interest of parents with barely a mention of the children’s legal status.

Starting in the mid-1960s (In Re Gault [juvenile justice case] and Tinker v. Des Moines Independent School District [free speech in public school]) and through 2007 (Morse v. Frederick [free speech outside of the school building]), the Court has declared children to be “persons” under the Constitution and wrestled with the implications of that declaration. One of the major challenges that the Court and legal scholars have faced is the oxymoron of children as legal persons. One of the significant underpinnings of our Constitutional jurisprudence regarding individual rights is the concept of choice. The Bill of Rights fundamentally protects individual freedom to make choices – the choice to speak publically, worship according to individual beliefs, the choice to remain silent when charged with a crime and to refuse to be searched without prior government authorization. At the same time, the law declares children to be incompetent to make choices because of their purported lack of capacity, particularly when they are very young, including the time when they cannot speak for themselves. How does a minor operate as a person whose choices in certain areas are constitutionally protected when the law says that the same minor lacks the capacity to make enforceable choices?

Taking this dilemma to the current movement to enact Personhood Amendments, the dilemma becomes even more challenging. The legal system has difficulty determining how to recognize, manifest and protect the choices of minors who can articulate a choice, or infants who possibly could demonstrate a choice. How could it determine how to recognize, manifest or protect the choice of a zygote or a fetus, as arguably be required if the status of personhood is granted under the Personhood Amendments? It would seem that even the strongest advocate for children’s rights would be at a loss in articulating a method to answer this question. It almost comes down to this. Children as persons under the Constitution – whether federal or state – are a legal oxymoron that present significant legal dilemmas. A zygote or fetus as a legal person is an oxymoron on steroids, defying solutions to a larger than life legal dilemma.



Pregnancy and Disability

Yesterday I posted about a dilemma in parental leave policies: The desire for formal sex equality leads to equal “caretaking” leave for men and women; when this leave is paid by the employer, it is typically quite short. The reality of biological differences is dealt with by providing separately for “disability” leave for pregnant and birthing women, often for a much longer period. In practice, that means that a woman who gives birth has an extended opportunity to bond with and care for a new child, while people who become parents in other ways do not. This creates an early discrepancy in caretaking between birthing and non-birthing parents. When children are adopted, the family as a whole suffers from not having that extra leeway for caretaking.

A woman in New York has filed a suit challenging these inequities in a novel way: Kara Krill received 13 weeks of paid maternity leave when she gave birth to her first child. Krill was unable to bear another child, and she and her husband hired a gestational surrogate, who gave birth to twins. This time, Krill was allowed only 5 days of leave, under the company’s policy for adoptive parents. Her suit alleges disability discrimination, saying that if it weren’t for her disability, which required her to have her children through a surrogate, she would have given birth and been entitled to the full 13 weeks of leave.

Krill faces an uphill battle under current law. I’m drawn, however, to the idea of designing parental leave policy around the idea that the inability to give birth is a disability that should be accommodated—and not just for women. Read More


Sex Equity in Parental Leave

Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:

U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.

The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Read More


Book Review: Banks’s Is Marriage for White People? How African American Marriage Decline Affects Everone

Richard Banks,Is Marriage for White People? How African American Marriage Decline Affects Everyone (Dutton 2011).

A half century ago, high rates of marriage were close to universal.  The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising.  Today, marriage has emerged as a marker of class for the country as a whole.   For the first time ever, fewer than half of all households consist of married couples.  Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair.  According to the National Marriage Project, the likelihood of marrying, staying married and raising children within marriage correlates strongly with education.   Compared to twenty years ago, the likelihood that a fourteen-year old girl will be in a family with both parents has risen for the children of college graduates and fallen substantially for everyone else.  In the midst of cries of alarms about family decay, marital stability has increased for college graduates with declining divorce rates and non-marital birth rates that have stayed below ten percent.  As in 1965, however, the notable exception to the rosy picture for family stability, at least for the elite, comes from African-Americans.   While the white   non-marital birth rate for college graduates has stayed at 2%; for African-American  college graduates, the numbers are rising and now approach the 25% level that caused such alarm at the time of the Moynihan report.  National Marriage Project, fig. S.2, p. 56.

Stanford Law Professor Richard Banks, in a book that has already triggered fireworks, courageously addresses the issue.   In Is Marriage for White People?  How the African American Marriage Decline Affects Everyone, he points out the enormous disparity between the marriage rates of black men and black women and the fact that the issue is no longer one limited to the black underclass.  While marriage has effectively disappeared from the poorest communities (the non-marital birth rates for black high school dropouts is 96%), Banks’ concern is successful African-American women.  Their marriage rates have been dropping, and their dissatisfaction with the behavior of black men is the subject of plays, movies and Banks’ book.  Banks’ explanation is straightforward: black women have been so disproportionately successful that they outnumber the men.  So, too, is his solution.  He writes the book to argue that the only realistic choice for African-American women is to marry outside the race and as a prominent African-American male, he is effectively giving them permission.

While Banks does an exceptional job describing the plight of the most talented African-American women (the book has good stories in addition to its good statistics), he punts on a number of issues.  He treats the behavior of the men as a consequence of the numbers game and, rather than exhort black men to do better by their women, he addresses the book to the women – give up, if you can, on racial exclusivity and the men, facing a more competitive market, will have to come around.  He also does not question the importance of marriage.  Some would celebrate the freedom to create a variety of family relationships and associate higher rates of marriage with male dominance.  On this issue, Banks gets a pass.  He does not take on the larger issue of family organization.  Instead, he addresses the pain of well-educated African-American women who want a committed partner in their lives and are frustrated in their inability to find one.

Read More


Same-Sex Couples and Divorce

Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.

As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”

Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.

My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.

In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.


Sidebar Publishes Response to “Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality”

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Adrienne Davis’s article Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, by Professor Elizabeth M. Glazer of the Hoftra University School of Law.

In “Regulating Polygamy:  Intimacy, Default Rules and Bargaining for Equality” Professor Davis rejects the analogy between gay marriage and polygamy and instead “turns to commercial partnership law to propose some tentative default rules that might accommodate marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered.”  In her response, Professor Glazer “uses Davis’s examination of the same-sex marriage analogy to polygamy in order to examine why a better analogy—namely, that between sodomy and polygamy—has not been quite as frequently invoked.”  Professor Glazer argues that those favoring legalization of polygamous marriage should analogize it to sodomy, rather than same-sex marriage for two reasons:  (1) the effort to lift sodomy bans has been much more successful than the effort to win legal recognition for same-sex marriages and (2) sodomy and polygamy share in common a history of criminalization which same-sex marriage does not.


Divorce Law Beats Fraud, Maybe Contract

We’ve debated whether mutual mistake is a ground to rescind divorce settlements dividing marital property based on an account held with Madoff. The New York Court of Appeals will soon decide in the case of Simkin v. Blank.

As a matter of contract law, in my opinion, they should be rescindable, when people cannot reasonably be supposed to have allocated the risk that an account was fraudulent.

As I noted in Peter Lattman’s N.Y. Times story on the pending Simkin case, the real policy debate pits principles of contract law, about protecting party risk allocation, against principles of domestic relations law, where the finality of divorce settlements might warrant upholding even such mutually mistaken contracts.

The New York Court of Appeals today issued an opinion, CFTC v. Walsh, with clues about this balance. Today’s divorce settlement case involves an innocent spouse who received millions of dollars from an ex who allegedly committed a spectacular securities fraud (amounting to some $550 million).

Federal agencies want to recover the property from the innocent spouse. The defense: the millions counted as marital property and the settlement agreement makes it hers, even if fraudulently obtained and once belonging to innocent victims.

The Court thus weighed whether to privilege the public policy intended to restore stolen property to rightful owners or the one favoring finality of divorce settlement agreements. Read More


Same-Sex Marriage in New York

2009 was a big year for same-sex marriage. In 2009, the Iowa Supreme Court became the first state high court to issue a unanimous opinion in favor of marriage equality for same-sex couples. 2009 was also the year in which a U.S. jurisdiction (well, it turned out to be jurisdictions) achieved marriage equality legislatively. Vermont was the first such jurisdiction, followed by New Hampshire, Maine, and then DC. (Ultimately, however, the Maine legislation was repealed by voter referendum.) Although a number of states — including Delaware, Hawaii, and Illinois — have enacted civil union legislation since then, no additional states have been added to the marriage equality list.

But that might change soon; New York might join the list in the near future. Many expected New York to approve same-sex marriage legislation in 2009, but that did not come to pass. This time around, the legislation has support from a broad range of sources. Last week, the New York Times reported that the same-sex marriage campaign in New York is receiving “the bulk of their money” from “a group of conservative financiers and wealthy donors to the Republican Party.” There is also support from New York political leaders, including New York City Mayor Michael Bloomberg, and Governor Andrew Cuomo.

Another source of support is the organized Bar. A press conference was held today in New York by various bar associations that support marriage equality. The groups include the New York State Bar Association and the Association of the Bar of the City of New York, along with a number of other New York state and local bar associations. The list of supporters also comprises a wide array of minority bar associations, including the Asian American Bar Association of New York, the Dominican Bar Association, the Hispanic National Bar Association, the Muslim Bar Association of New York, the Puerto Rican Bar Association, the South Asian Bar Association of New York, and the Women’s Bar Association of the State of New York.

Last year, in August 2010, the American Bar Association likewise took a position in support of marriage equality. The resolution, which was approved overwhelmingly by the ABA House of Delegates, provides that the ABA urges states to “eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

A recent poll reported that 58% percent of New Yorkers support marriage equality for same-sex couples.