Category: Feminism and Gender


Parent-Partners and Intimate Partner Violence

Professor Merle Weiner’s proposal for a parent-partner status in American family law is novel and intriguing, and her exhaustively researched book makes a persuasive case for seriously considering the adoption of such a status. But because my principal preoccupation is intimate partner violence, I have to admit that it worries me. Weiner’s status would obligate parents to refrain from abusing each other (an obligation that already exists by virtue of both criminal and civil law, but is still too frequently breached) while at the same time requiring them to engage in relationship work both at the start of the parenting relationship and at the time when the romantic relationship ends (which assumes there has been a romantic, rather than short sexual, relationship between the parties). I immediately began to have doubts: how would the non-abuse and relationship provisions coexist in relationships marked by intimate partner violence?

Because Professor Weiner has long been thoughtful about intimate partner violence, she anticipated my concerns. In fact, Professor Weiner contends, the parent-partner status will provide greater protection for people subjected to intimate partner violence, not less. She proposes changes to both criminal and civil law that she believes would better protect parent-partners. Moreover, she makes it clear that the relationship work requires only that a parent attend counseling or an educational program at the other parent’s request. She is careful to note, too, that in the case of a child conceived through rape, the obligations between parents flow only one direction: from the rapist to the victim.

Professor Weiner argues that including the duty not to abuse in the parent-partner status sends an important normative message, recognizing both that “abuse between parent-partners is more common and more serious than violence between others in intimate relationships” and that the legal tools currently deployed to address that violence are in many ways inadequate. Professor Weiner’s solution is to expand the reach of both the civil and criminal law. On the civil side, Professor Weiner would ensure that protection orders enjoining both physical and psychological abuse are available to parent-partners from conception onward. On the criminal side, Professor Weiner would specifically criminalize parent-partner physical abuse.

Professor Weiner’s proposal to expand the definition of abuse in the context of civil protection orders recognizes the harm that psychological abuse inflicts; as she notes, many people subjected to abuse find psychological harm much more damaging than physical violence. Some states already authorize the entry of protective orders for some forms psychological abuse, and many scholars have argued that legal definitions of domestic violence should include psychological abuse. Nonetheless, there is reason to be cautious about embracing the proposal, as Professor Weiner recognizes. Without carefully defining what constitutes psychological abuse, some fear that an expanded definition of abuse could fail to distinguish between coercively controlling psychological abuse and garden variety nagging or name-calling. Extending eligibility for protective orders too broadly could also create unnecessary family litigation and overwhelm the courts, leaving judges with even less time and patience with which to address cases of serious intimate partner violence. Professor Weiner has more faith than I do that state legislators can and will craft these definitions in a way that will target only the behavior she hopes to capture, without creating a tool that perpetrators of intimate partner violence can use to harass and abuse their partners.

Professor Weiner also proposes that states create a new crime of abuse of a parent-partner. Professor Weiner notes that there is an ongoing debate about the efficacy of the criminal justice response to domestic violence. Since 1984, criminal justice interventions have been the primary response to domestic violence in the United States, a policy choice bolstered by the passage of the Violence Against Women Act. Hundreds of millions of dollars of federal money have been poured into the criminal justice system since 1994. And rates of domestic violence have fallen since 1994. Between 1994 and 2000, rates of domestic violence fell in tandem with the decrease in the overall crime rate; between 2000 and 2010, however, rates of domestic violence fell less than the decrease in the overall crime rate, notwithstanding the money and effort dedicated to the criminal justice response. There is no social science evidence to suggest that the criminal justice response has had an appreciable impact on domestic violence rates or has deterred abusers from committing acts of violence. Moreover, some scholars have argued that criminalization does more harm than good, both in the way that the legal system imposes itself upon victims of violence and in the damage done to perpetrators, many of whom are low income men of color, and their communities.

While Weiner sidesteps the issue of the efficacy of the criminal justice response, stating that “the wisdom of making the parent-partner relationship more relevant to the prosecution of behavior that is already criminal is a separate issue from whether a criminal law response is appropriate at all,” the act of proposing a new crime shows Weiner’s faith in the power of criminal justice intervention. Expanding the criminal law gives credence to the idea that criminal justice interventions are effective in addressing intimate partner violence. But there is no reason to believe that creating a new crime based on the parent-partner status will be any more of a deterrent than the prospect of incarceration for the many intimate partner violence crimes currently on the books has been. Diverting time and attention away from developing alternatives to the ineffectual criminal justice response to intimate partner violence by putting that effort into passing new criminal laws is simply bad policy and will not benefit the parents or children that Weiner hopes to help.

The parent-partner status could significantly benefit one category of victims of intimate partner abuse, however. Recognizing a parent-partner status could decrease the stigma experienced by women who want to maintain relationships with their abusive current or former partners or who appreciate their partners’ parenting skills even if they don’t want to stay in relationships. Many people subjected to abuse want to continue to have some relationship with their partners—they simply want the violence to stop. Professor Weiner recognizes this reality, and her suggestion that all states provide protective orders that allow for continued contact between the parties while enjoining further violence is a good one.

The requirement that parent-partners engage in relationship work raises obvious concerns. Professor Weiner is careful to note that one parent cannot force the other to remain in the relationship, and that “the educators and counselors must ensure that batterers are not using the obligation of relationship work as a way t gain access to and control over the other parent.” But even the requirement that a parent attend an information session will feel unduly onerous to a victim of violence who does not want to have any contact with a former partner and who knows that the abuser is using the requirement to harass or harm or fears that somehow, the abusive partner will be able to establish contact through the relationship work requirement. Allowing victims of violence to opt out of the relationship work requirements seems to me the only way to ensure that people subjected to abuse are truly protected from the harm that this requirement could cause.

A consensus that American family law should be organized around children’s well-being, and that ensuring well-being requires strengthening connections between parents, seems to be emerging among family law scholars. Professor Weiner comprehensively lays out the case for taking this approach, and in many ways, her argument is persuasive. But there are downsides to this choice, and one of them is the relative lack of concern for the rights and interests of adults, particularly adults who have been subjected to domestic violence. Although we pay lip service to protecting parents who have been subjected to abuse, a number of recent child-centered developments in the family courts, including friendly parent provisions, custody evaluation, parenting coordination, and mediation, have been criticized as not sufficiently attentive to the needs of victims of violence. As Professor Weiner acknowledges, although most courts purport to screen for domestic violence prior to ordering these services, screening is often slipshod, and many people subjected to abuse choose, for whatever reason, not disclose to court personnel.
Professor Weiner urges us to move forward with her proposals although “[u]ncertainties remain and unanswered questions exist.” And she’s right that if we wait to answer every question, change will never be made. Nonetheless, however appealing the theory is, without some certainty as to the effectiveness of the measures Professor Weiner proposes to protect people subjected to abuse, it may be difficult for those of us concerned about these issues to seriously commit to the parent-partner status.


The Limits of Relationship Work

Merle Weiner’s book, A Parent-Partner Status for American Family Law, is a tremendously important contribution to the debate about how to strengthen families and improve outcomes for children. At a time when families are rapidly changing and marriage is of dwindling importance in some communities, it is imperative to think anew about how to support a wide range of families. Weiner’s proposal for a new parent-partner status is a bold and welcome addition to this debate.

Weiner proposes five core legal obligations that would attach to the parent-partner status. Three of these obligations are incremental changes to existing law—a duty to aid regardless of marital status, a heightened duty of loyalty in contracting, and additional protections against domestic violence for parent-partners. These obligations strike me as reasonable and would seem to further Weiner’s goal of inculcating stronger ties between parents. A fourth obligation—financial compensation for a parent who does a disproportionate share of the physical caregiving—usefully builds on existing law as well as the proposals in the ALI Principles of the Law of Family Dissolution, which Weiner convincingly critiques. Together, these obligations would formalize a status that exists currently in the interstices of family law, which is itself a positive step forward.

It is Weiner’s final obligation that, at least at first glance, appears to be a major departure from existing law. She proposes that parent-partners have a legally enforceable obligation to engage in “relationship work”—counseling, education, and so on—both at the time a child is born and if the parents’ romantic relationship ends. The relationship work at the first juncture is intended to help parents navigate the stressful transition to parenthood. The relationship work at the time of dissolution contemplates reconciliation as a first measure. If, after considering the impact of the dissolution on the child, the couple still proceeds to break up, then the relationship work would focus on helping the couple remain friends while ending their romantic relationship.

This obligation would not be enforced by a third party, but one parent-partner could seek a court order to enforce the obligation against the other parent-partner. A court could not require a resistant parent to engage in the actual relationship work but could order the parent to attend an educational session touting the benefits of relationship work. Weiner believes creating an enforceable legal obligation does not necessarily mean parties will flock to the courts to seek enforcement but rather that it “should help couples internalize the value of relationship work and the social expectation of participation.” (p. 358)

Weiner claims that the “proposal is not as radical as it may sound” (p. 352). It is true, as Weiner notes, that both the federal and state governments are already involved in some form of relationship work: mandating mediation for custody and visitation disputes, requiring co-parenting education classes for separating and divorcing couples, and funding programs designed to strengthen family relationships, such as the federal Responsible Fatherhood program.

As I elaborate below, her proposal differs from these kinds of programs in meaningful ways, and therefore I think it is a significant departure. But audacity alone is not a problem. The real question is whether the proposal is good policy.

I am not so sure. In my own work, I, too, have argued that if the law wants to improve the vertical relationship between a parent and child, it needs to focus on the horizontal relationship between the two parents. Whether and how the parents get along deeply affects the ability of each parent to provide a child with the time and attention needed for healthy child development. Further, I have argued in favor of the kinds of programs that Weiner’s proposal builds on, particularly co-parenting classes for parents at the end of a romantic relationship. (I have also proposed a legal status that would attach at birth, which I called co-parent status, but whereas I dedicated a short section of a long law review article to the idea, Weiner has dedicated an entire book; therefore I want to focus on her proposed status, not mine.)

So why am I resistant to Weiner’s proposal while seeming to promote many of the same ideas? Read More


FAN 74.1 (First Amendment News) First Amendment Salon goes to L.A. — Chemerinsky & Volokh discuss Roberts Court & First Amendment . . . & more!

It was a remarkable late-afternoon program yesterday as the First Amendment Salon went on the road for the first time with an event held at the Los Angeles office of Davis Wright Tremaine. There was a live video feed to DWT’s offices in New York City and Washington, D.C. Those participating in the Salon (the sixth) were UC Irvine Dean Erwin Chemerinsky and UCLA Law Professor Eugene Volokh with DWT lawyer Kelli Sager moderating the exchange between the two. The Salons are conducted in association with the law firm of Levine Sullivan Koch & Schulz and the Floyd Abrams Institute for Free Expression at Yale Law School. (Chemerinsky and Volokh are on the Salon’s advisory board). Lee Levine introduced the program. The topic of discussion for the 90-minute exchange, replete with questions from the audience, was “The Roberts Court and the First Amendment.”

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

                        Eugene Volokh, Erwin Chemerinsky & Kelli Sager

The Chemerinsky-Volokh exchange was nuanced and esoteric yet always insightful, informative, and engaging. Ms.Sager ably navigated the discussion through a variety of topics including:

  • First Amendment law in the context of the government acting as sovereign vs the government acting in a managerial capacity
  • the reach of the government speech doctrine after Walker
  •  the future of “strict scrutiny” analysis after Williams-Yulee
  • whether in light of Williams-Yulee (and the idea that judicial elections are different) independent expenditures might be regulated notwithstanding the holding in Buckley
  • the impact of Reed on the “secondary effects” doctrine
  • the likelihood that the trio of Breyer, Ginsburg, and Kagan will be able to persuade a majority of the Court to abandon strict scrutiny in content-discrimination cases
  • whether in the Friedrichs case the Court will overrule Abood (reference was made to Catherine Fisk’s SCOTUSblog post “The Friedrichs petition should be dismissed“)
  • what important First Amendment issues are not before the Court but which need to be
  • whether the Court is likely to grant cert. in a “right to publicity” case (see Law360 Aug. 14, 2015 news story here)
  • and how the Court has yet to give any serious consideration, post Reno and Ashcroft, as to how the Internet impacts First Amendment law.
Judge Alex Kozinski

Judge Alex Kozinski

And there was more, much more, including a variety of questions from the audience consisting of First Amendment lawyers and law professors, journalists, and free-speech activists.

BTW: Ninth Circuit Judge Alex Kozinski was in the audience and asked the two professors to comment on the following statement: “The big threat to free speech in the next twenty years is from foreign countries” trying to enforce “right to be forgotten” laws against the likes of Google and ordering them to remove certain items from all of their posts in all nations, including the United States. “The right to be forgotten,” he added, “is just the first of what may be many laws that are more speech restrictive than those of the U.S., e.g. defamation, privacy, and moral rights.” [See Mike Masnick, “Google Disappears Techdirt Article About Right To Be Forgotten Due To Right To Be Forgotten Request,”, Aug. 25, 2015)]

Shout out to the fine folks at Davis Wright Tremaine for hosting the Los Angeles Salon.

The L.A. Salon event was video-recored and I hope to post a link to it soon.

Go here for video of fifth Salon: “Is the First Amendment Being Misused as a Deregulatory Tool?”  The exchange, held at the Abrams Institute at Yale Law School, was between Professors Jack Balkin and Martin Redish with Floyd Abrams moderating.

A Tribute to Marc Poirier

marc-poirier-176x220I want to mark the passing of a former colleague of mine, Seton Hall’s Marc Poirier. Marc was an exceptional scholar, teacher, and colleague.

Marc was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. He wrote on property, environmental law, and civil rights, and combined the fields in innovative ways. His “Virtues of Vagueness in Takings Law” was both widely cited, and elegantly argued. Essays like “Science, Rhetoric, and Distribution in a Risky World” were philosophically informed readings of fundamental controversies in environmental policy. Throughout his scholarship, there was a concern for the marginal: the victims of environmental racism, sexual orientation discrimination, climate change, and many other contemporary scourges. But there was also a wise awareness of the limits of law and the complexities of advocacy.

It is thanks to the efforts of people like Marc that marriage equality has come to America. I say this not only because an article like “The Cultural Property Claim in the Same-Sex Marriage Controversy” clarified the stakes of the term “marriage” so eloquently and empathetically. Marc’s service and faculty advising modeled, for all of us, a patient way of working for justice in slow-moving courts and agencies, and in institutions affiliated with a “church that can and cannot change.” Marc explored gender and LGBTQ equality in so many dimensions: legal, sociological, anthropological, economic. I have little doubt that his work will be consulted again and again, as scholars reflect on his illuminating efforts to balance liberty and equality, tradition and innovation, individual self-expression and institutional self-governance.

Marc was also deeply involved in the community. He devoutly maintained a meditation practice, both as a leader of group meditation sessions and a member of area sanghas. He offered his teaching to all at Seton Hall, and organized sittings and other opportunities for us to experience meditation’s compelling combination of relaxation and focus. While some might see meditation as an unlikely practice for lawyers, Marc helped us understand both professional judgment and spiritual practice as complementary ways of gaining a broader perspective on reality. Groups like the Association for Contemplative Mind in Higher Education have shown how important these opportunities can be for both faculty and students alike. I will always be grateful to Marc for bringing these practices to Seton Hall.

Marc was also a very committed teacher. He went above and beyond in his administrative law class to include extra material on state and local government that few other courses in the area covered. The standard for his seminars was exceptionally high, and he’d have frequent meetings with students to help them perfect their papers. He was available all the time, and always happy to talk.

Finally, I will always remember Marc as wonderfully effervescent. He was such a delight to have lunch or dinner with. And he would talk about just about anything: how to argue a difficult point in an article, how to navigate administrative mazes, or what were the best parks and beaches in New Jersey. He was such a good listener. I think this was part of his meditative practice: to open himself up to whatever colleagues or students wanted to chat about, knowing exactly when to inject a note of skepticism, a considered reflection, a guffaw.

I will so miss those conversations with Marc. There is some small sense of consolation in reading his articles, artifacts of a gentle yet meticulous intellect making connections among concepts that only someone of his deep understanding and learning could accomplish. But I wish we’d had more time to learn from him. I hope I can do some justice to his memory by trying to imitate the empathy, reflectiveness, and openness he showed to so many.


Race, Love, and Promise

Sheena and Tiara Yates

Martha Ertman’s wonderful new book, Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, is a must read for anyone concerned about families or law. Ertman’s core argument is that “contracts and deals” can play a critical role in “helping people create and sustain families.” In advancing this claim, the book – which reads like a good novel even as it maps the complex, shifting landscape of modern family law – primarily relies on Ertman’s own, very compelling story of love and parenthood. Along the way, however, it also communicates the stories of other “Plan B” families, those that Ertman describes as being formed in “uncommon” ways. In doing so, it clears important space for lawyers and non-lawyers alike to consider the experiences of all families. 

Ertman persuasively makes the case that formal and informal “exchanges . . . [already] define family life” in a host of ways, and that greater reliance on such contracts could support the formation and functioning of Plan B families, as well as their more “common,” Plan A, counterparts. As a family law professor,I am deeply sympathetic to this view.  Even more, like so many others, my personal life is comprised of a patchwork of formal and informal contracts. On one hand there is my almost twelve-year legal marriage and the enforceable post-adoption contact agreement — something Ertman would call a “PACA” — that provides for annual visitation with my younger son’s birth mother. Then, on the other hand, sit the unenforceable, but nevertheless important “deals” that I have made with family members. These include the parenting norms that my spouse and I follow in raising our two children, and the mutual vows that we made before family and friends – such as “to love your body as it ages” and “to support you in the pursuit of your dreams.” These promises both help to define and affirm the contours of our loving commitment as a couple and a family.

Nevertheless, I often found myself seeking more from the story that Love’s Promises tells about the place of contract in family life. Like the students I teach, I have some nagging questions about how well contract can work for those who, for example, lack the money to hire a lawyer to draft or defend their cohabitation agreements, or who, because of past experience with the legal system, might never think about contract as a potentially liberating force in their lives. Moreover, I wanted a more complex narrative about the operation of race and contract in the family context than the book attempts to communicate.

To be clear, Love’s Promises does not ignore the subject of race. Indeed, Ertman deserves high marks for examining topics such as Whites’ exclusion of Blacks from marriage during slavery; the forced sterilization of African American women; and the concerns about transracial adoption articulated by organizations such as the National Association of Black Social Workers in the 1970s in crafting her vision of what the rules concerning contract and love should be. But, as important as this past history is, what I most craved was deeper engagement with what increased reliance on contract would mean for issues of race and family in the future.

Laws pertaining to family have historically structured families, but also race – how it is defined, understood, and experienced — in very consequential ways. Think, for example, about antimiscegenation laws that helped to give content to the very idea of race, determining who would be regarded as black or white, slave or free. I am thus very skeptical about the notion that, without more, we can expect that a norm which encourages greater reliance on agreements — especially those that would be more than mere “deals” and thus enforceable in court – will always have an equality-enhancing effect. A newspaper article that I recently read about the efforts of a black, lesbian couple (their picture appears at the outset of this post) to expand their family helps to explain why.

Sheena and Tiara Yates, fell in love and, after their 2011 New Jersey commitment ceremony, decided that they wanted a child. They successfully had one child and later tried to become parents again. As they had the first time around, Sheena and Tiara, who legally married in 2014, used in-home insemination to conceive. To formalize their family unit and intentions, they also entered into a written contract with the known donor whose sperm they utilized. Their agreement contemplated the donor’s relinquishment of all parental rights in the new baby, something designed to permit Sheena and Tiara to parent the child they’d longed for as a unit of two.

Despite the contract, the donor subsequently brought a custody suit to challenge the agreement’s terms and, at least preliminarily, succeeded in doing so. In a decision that the Yateses are now appealing, a judge granted him parental visitation rights. In cases involving insemination, New Jersey, where Sheena and Tiara reside with their family, courts will only recognize a non-biological parent’s rights if the insemination process was carried out by a physician. Although Sheena and Tiara, according to news sources, met with a doctor and were prescribed prenatal vitamins, the actual insemination process was performed at their home, without medical assistance. Significantly, this is the second custody suit that the Yateses have had to defend. The donor for their oldest child challenged the agreement that they had with him on similar grounds and now has visitation rights with that child as well.

Race, gender, and class intersect in troubling ways in the Yates case. Admittedly, it is not contract per se that produces the potential inequality. In fact, Sheena and Tiara clearly saw contract as an important tool in growing their family. But they entered into the donor contracts described within in a particular context, one in which the medical and legal costs that attend physician-assisted fertility treatments generally remain out of reach for low and even some middle-income families, a group in which African Americans — perhaps LGBTQ Blacks most of all — are disproportionately represented. It is not hard to imagine that health care costs figured into their decision to inseminate at home or, for that matter, to use a known donor rather than an anonymous donor affiliated with a sperm bank. Add to this the potential effects of other factors, such as fact that, given past history, many African Americans mistrust doctors and medical facilities, a phenomenon that Kimani Paul-Emile discusses in her work. All of this troubles the story of contract’s ability to advance the aspirations of all families equally.

Significantly, my lament is not simply that Love’s Promises passes up an opportunity to discuss how the realities of race and structural inequality in this country might diminish the power of contract for African Americans and other groups of color in the family context. Ertman’s book also misses a chance to say something about the particular advantages that contract could offer such groups. Despite my earlier argument, my sense is that there may be some places where contract could be very effectively deployed to disrupt the effects of racial stigma and inequality, especially if paired with other tools.

Consider the example of nonmarital black families, especially those with children. Today, African Americans are the most unmarried group in the country. While the U.S. has seen declines in marriage among all groups, they have been steepest among Blacks. Interestingly, African Americans place a higher value on marriage than many other groups. Studies suggest, however, that considerations regarding financial security and other related issues may prevent them from seeing marriage as a viable option for organizing their lives. In a recent law review article in the Hastings Law Journal, I make the argument that, instead of investing in marriage promotion programs that too often ignore the structural racial inequality (e.g., poverty, school drop out rates, housing and food insecurity, and high incarceration rates) that often creates a barrier to marriage, we should work to honor and better support nonmarital black families where they stand.

When it comes to cohabiting couples, Ertman concludes that they “should be recognized as an ‘us’ in relation to one another through property-sharing rules,” such those proposed by the American Law Institute. She stops short, however, of saying that cohabitants should “be treated as an ‘us’ when it comes to institutions outside the relationship, like the IRS and the Social Security Administration.” As Ertman notes in addressing proposals advanced by other law professors, a focus on cohabitants alone won’t do much for African America, a community in which black “women . . . are three times more likely than white women never to live with an intimate partner and more likely than white women to center their lives among extended kin.” But contract might be a more effective tool if extended to nonmarital families with children, whether the parents reside together or not. This might be especially true if combined with changes in tax policy and the structure of benefits that Ertman is less comfortable making in the absence of marriage.

For reasons already articulated, I do not think that adults in poor, nonmarital black families will or should run out to find lawyers who can draft binding contracts for them. But I can still imagine a world in which a contract-based norm works to destigmatize such families by making it plain that they have structures and “deals” like many others, not just the “tangle of pathology” described in the Moynihan Report issued fifty years ago.   In such a world, even informal contracts could assist the adults in “fragile” families in negotiating the many challenges that they face and serve to reduce conflict. Further, such agreements, to the extent that they help reveal the precise terms of the negotiations in which such families already engage, might uncover the reasons that fragile black families seem to be able to navigate co-parenting better than their counterparts. They might also disrupt stereotypes about the contributions that fathers, in particular, make to such families. Despite the racialized trope of the “dead beat” dad, studies show that nonmarital African American fathers tend to be more involved with their children than nonmarital White fathers, and regularly contribute diapers and other goods as a way of providing support, even when dramatically reduced job opportunities make money scarce.

Love’s Promises helps us see the current realities of both “Plan A” and “Plan B” families, and to imagine what the future could and should be as a normative matter. I’m very grateful to Martha, the symposium organizers, and my fellow participants for helping me to think even more about the possibilities of contract in the family law context, especially where families of color are concerned. On this day, especially, when the U.S. Supreme Court has affirmed that LGBT couples are “Plan A” families in the eyes of the Constitution, I only hope that Ertman decides to write another book that builds on the important foundation that she has set.



When Love’s Promises Are Fulfilled By the U.S. Supreme Court

Today, in a 5-4 decision, the United States Supreme recognized the fundamental nature of love’s promises. In Obergefell et al. v. Hodges, the Court held,  “the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”  Referring to marriage as a “keystone” of the U.S.’s “social order,” Justice Kennedy declared same-sex marriage bans unconstitutional. Importantly, the case makes clear that forcing gay couples to go across state lines to marry only to deny them the franchise after returning home undermines fundamental principles of liberty.

It’s no surprise that Professor Martha Ertman’s powerful book: Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families on which she copiously and beautifully toiled while rearing her son debuts the summer that equality in marriage becomes a fundamental right for gay men and women. Nor should anyone be surprised if the book, along with the decision itself, becomes a central text at universities and beyond. In what David Corn calls a “love letter to marriage,” from the pen of Justice Kennedy, the Court reasoned:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.“

With that, the Supreme Court overruled the prior judgement of the Court of Appeals for the Sixth Circuit and set in gear the reversal of centuries’ worth of stigma, shame and inequality, which may not erase overnight, but overtime will ease. Professor Ertman might also suggest that by the decision, the Court resituates contracts too. That is to say, if viewed from the lens of contracts, which serves as the core, theoretical foundation of Love’s Promises, this decision recognizes a fundamental right in contract for gay men and women. Further, the case expands the “contract” franchise to include gay women and men.

Some scholars approach gay marriage primarily from the constitutional liberties encapsulated in the 14th Amendment, upholding equal protection for U.S. citizens regardless of their status, others approach the issue as a matter of privacy. For Professor Ertman, contracts offer an additional lens and much to deliberate about on matters of marriage, parenting, and familial intimacy. Professor Ertman’s writings on contract (The Business of Intimacy,  What’s Wrong With a Parenthood Market?, and Reconstructing Marriage to name a few) precede the book, and presaged its birth.

Here for example, in a passage from Chapter Eight, she explains that “[i]t takes two more trips to the lawyer’s office to hammer out terms that satisfy Karen, Victor, the attorney, and me, from lawyerly technicalities to the emotional terms we call “mush.” From what started out as an addendum to Victor’s and my coparenting agreement has blossomed into a bouquet of wills and powers of attorney, alongside the amended parenting agreement.” She tells readers, “On the way downstairs, clutching documents still warm from the copying machine, Karen squeezes my hand, as if she too feels that signing all those dotted lines brought a family into being every bit as much as vows of forever that we plan to recite…” As she explains, “if you scratch the surface of marriage—straight or gay—you’ll find contracts there, too.”

Professor Ertman urges us to remember time and again that what builds relationships and sustains them are the formal and informal contracting that take place daily in marriage; they establish the foundation for marriage and what comes after. She works diligently in the book to demonstrate love too undergirds contracts. That is to say, she wants readers to reimagine contracts—not as the products of cold, calculated bargaining or business arrangements—though one must acknowledge contracts can be that too—even in marriage.  Often marriage is the product of love, intimacy, and warm innocence.  At other times, it is the product of business arrangements.  It was that too in the U.S. chattel system: contracts that gave legal sufficiency to the buying, selling, bartering, and even destroying of slaves, including children (among them the Black biological offspring of slave owners). In light of that history yet to be fully explored and appreciated in law, it is a formidable task to resituate or reintroduce contract in the space of families and intimacy. However, Professor Ertman rises to that challenge.

Like it or not, contracts pervade marriage and suffuse premarital agreements. Sometimes contracting in this regard attempts to resituate power and status expost marriage, providing the economically weaker spouse economic stability after the breakup. Martha highlights cases from that of Catherine Simeone who received a “raw deal,” to those of celebrities, including Michael Douglas and Beyonce. Who knew that Beyonce would receive $5 million for “each of their children,” if she and Shawn Carter (otherwise known as Jay-Z) divorced? Professor Ertman might argue that despite the businesslike nature of contracts, these legal arrangements and agreements make most matters clearer for everybody. Professor Ertman explains that contracts and even verbal agreements provide information, they can provide context, and they offer choice.

In Ertman’s life, it was a contract that bestowed her wife, Karen, parenthood of their child—not something biological, legislative, or derived from courts. And she offers multiple reasons for readers to consider the salience of contracts in intimacy, including voluntariness, reciprocal promises, and equal status. She offers an additional reason: love’s promises.


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


Posner on Same-Sex Marriage: Then and Now

. . .  I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion . . . . — Richard Posner (2005)

At various points [in oral arguments in the same-sex cases], Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” — David Lat (2014)

This is the ninth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth one here.

Following the fourth installment in the Posner on Posner series of posts, someone commented on a point Judge Posner made in response to a question posed to him by Professor Kathryn Watts. That comment is set out below. Following it are excerpts from Judge Posner’s 1997 Michigan Law Review essay critiquing Professor William Eskridge’s The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996). Accompanying them are some excerpts from Judge Posner’s opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104, cert. denied and cert denied sub nom., 135 S. Ct. 316) in which he struck down two state laws banning same-sex marriage.

judgeposner_2010All of this is offered up duly mindful what Judge Posner said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992) [see here re those arguments], which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things.”

Of course, those comments from his 2014 interview with Joel Cohen were rendered before the Baskin case came before his court. Since the same-sex marriage cases are not  before the Supreme Court for review, I did not ask the Judge to comment on the matter.

That said, I begin with the online commentators remarks and will thereafter proceed to offer some excerpts:

  1. from Posner’s Sex and Reason (S&R)
  2. his Michigan Law Review essay (MLR)
  3. his Baskin opinion (BB), and
  4. some excerpts from the petition (CP) filed by the Attorney General of Indiana in Baskin since it references Judge Posner’s Michigan Law Review Essay and does so in support of its arguments for reversing the Seventh Circuit’s ruling.

Before offering any excerpts, however, I offer a historical sketch of the legal context in which Judge Posner found himself when he first wrote his book and law review essay and thereafter when he wrote his Baskin opinion.  

(Note: Some of the links below will open in Firefox and Chrome but not in Safari.)

Praise for Posner: On Judges Educating the Public

LGBT (12-3-14)Judge Posner, I am thinking you will probably read comments so I am taking this opportunity to reach out to you and sincerely thank you for your decision on the Wisconsin & Indiana cases on Gay Marriage. Your ruling was a Tour de Force (!) that got quoted & re-quoted all over the gay blogosphere. The lawyers and other Judges will remember other things you did, but the PUBLIC will remember your decision in the Gay Marriage cases. This will be the opinion that will be cited in the History books. And what was REALLY GREAT is how fast you turned it around. It was oral arguments, then BAM! . . .”

“How wrong you are when you say in your interview, ‘it’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case.’ Not in the Gay Marriage cases; the interest is not simply that we won, but WHY we won. Your words have been copied and pasted all over the gay blogosphere. I know that there is one gay website that gets 30 million hits a year, just that one site. Trust me your opinion was read by millions. It wasn’t simply who won, but WHY the gays won. It was validation to them, they read it and felt validated. You told them they were Equal, and that raised a lot of emotions. Tears were shed, a lot of them. People were commenting how they were reading your opinion and crying, it was very emotional for many, many people. Your opinion will most certainly go down in the history books on the history of the Gay Rights Movement. And I thank you deeply for it.”


The Historical Backdrop

UnknownTurn the clock back to 1992, the time when then Judge Posner published Sex and Reason. That was before the Hawaii Supreme Court’s seminal ruling in Baehr v. Lewin (1993) in which it ruled that denying marriage licenses to same-sex couples violated the equality of rights provision of the state constitution unless the state could demonstrate a compelling interest for such discrimination. And the year before Posner published his Michigan Law Review essay (when Eskridge taught at Georgetown), President Bill Clinton signed the Defense of Marriage Act into law. Recall, that law permitted the states to refuse to recognize same-sex marriages and remained on the books until Section 3 of the Act was declared unconstitutional by a 5-4 margin in United States v. Windsor. In 1999 Vermont Supreme Court took the lead in ordering the state legislature to establish laws permitting same-sex marriages (Baker v. Vermont was the case). In 2000 the Vermont legislature enacted just such a law, making Vermont the first state in the Union to recognize same-sex marriages.

 As for guidance from the Supreme Court, recall that Romer v. Evans (a rather confusing opinion by a divided Court) was handed down in 1996 and Lawrence v. Texas in 2003.

Different Domains: Scholarly Opinions vs Judicial Opinions 

If pursued with characteristic Posnerian relentlessness, [several of his] premises [in Sex and Reason] could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness.

[R]epealing sodomy laws and outlawing overt discrimination against bisexuals, gay men, and lesbians are easy cases for a rationalist, libertarian analysis. But a tough-minded cost-benefit analysis [such as the one Posner employs] would not stop with the easiest cases. Recognizing the same constitutional right to privacy for same-sex intimacy as is accorded different-sex intimacy, ending the military’s exclusion of bisexuals, gay men, and lesbians, and requiring states to issue marriage licenses to same-sex couples are conclusions that are scarcely less compelling under Posner’s first principles. Yet Posner himself rejects or avoids these latter conclusions. And he does not even discuss other issues of profound importance to lesbian, gay, and bisexual communities.                        – William Eskridge (1992)

Professor William Eskridge

Professor William Eskridge

One does not have to defend Richard Posner’s early views on same-sex marriage to concede the obvious: it was a different legal world. Still, a new legal order was emerging as evidenced by two noteworthy pieces by Professor William Eskridge: First, his 1992 Yale Law Journal review essay of Sex and Reason, and second, his 1993 Virginia Law Review article, “A History of Same-Sex Marriage.” And then there was Professor Robin West’s critical 1993 Georgetown Law Journal review essay on Sex and Reason.

 Richard Posner, an intermediate appellate judge, was not then a part of that emerging order. As a jurist he yielded, so he asserted, to the dictates of judicial modesty. While such dictates understandably restricted the direction of his judicial opinions, they need not have dictated the direction of his scholarly opinions in which he often demonstrated a unique cerebral bravado and a willingness to be a maverick in forging creative arguments. Moreover, in his capacity as a public intellectual and legal scholar, Posner was quite outspoken in refuting the critics of his work. See, e.g., his “The Radical Feminist Critique of Sex and Reason” (1993) article. In all of this, it is important to note that Posner nonetheless: (1) favored decriminalizing homosexual sex; (2) endorsed contracts of cohabitation for same-sex couples; and (3) was fine with legislative enactments legalizing same-sex marriage.

Thus, prior to the oral arguments in Baskin v. Bogan and the opinion in that case, what Posner had written in Sex and Reason and in his Michigan Law Review essay gave a meaningful degree of legal legitimacy to the campaign to oppose same-sex marriage. As late as 2004, Posner’s arguments were reproduced in a collection of essays (edited by Andrew Sullivan and first published in 1997) on same sex-marriage. And then there is his 2005 statement quoted at the outset of this post. It took nearly 17 years after the Michigan Law Review essay was published before Judge Posner expressed any significantly different views, first in a 2014 interview and then in a 2014 judicial opinion. Why so long?

A pragmatic reformer is concerned with what works and therefore cannot ignore public opinion or political realities just because the things he wants to change are not rooted in nature but instead are “mere” constructs. — Richard Posner (1995)

Safe Harbor Read More


Data, A/B Testing, and Sales

A company called Adore Me that was founded in 2010 now has sales ($5.6 million) to rival La Perla has done well in part because they use data and A/B testing. Rather than rely on the intuition of photographers and designers, the company takes versions of an offering and shows them to consumers to see what works. Here are the surprising claims. Blonds don’t sell well. A picture of a model with her hand on her hip will sell less than if she places her hand on her head. According to Fast Company:

Through its research, Adore Me has found that the right model matters even more than price. If customers see a lacy pushup on a model they like, they’ll buy it. Put the same thing on a model they don’t, and even a $10 price cut won’t compel them. Pose matters as well: the same product shot on the same model in a different posture can nudge sales a few percentage points in either direction. Another test found that a popular model can sell a more expensive version of the same garment.

Adore Me also has a plus sized model (although I am sure that others can tell me best whether the company’s definition of size 12 and above is a good one) and presumably will see whether folks may buy more lingerie from someone with a body other than a Barbie-esque one. Of course they may find that the image machine controls how we shop, but I am curious to see whwther they will find ways to challenge and tweak what resonates with consumers. Now that may be unlikely as the author of the article, Rebecca Greenfield, wrote “Scrolling through the site, the models could all be related—long legs, olive skin, dark hair, insanely hot.” Yet when it came to race, the article suggests that pose, styling, and the emotional connection with the photo mattered more than race for selling a given item.

As with all data, the practice raises some difficult questions. Seeing how people behave can help sell. Assuming that one’s offering does not influence how people behave is a mistake. The ethics of what one does with data about buying habits and current preferences is a topic for another post and many papers are being written on the topic. For now, be aware of the practices. For Facebook thought it was cool to run thousands, if not hundreds of thousands, of tests on users. As Ian Ayres noted, people can use Google Ads to see what titles work best for a book. So maybe we care more about emotional manipulation than the variation in ad content. Maybe we care more about whether we see ads for the same item and same price as others than whether that ad is highlighted in red, blue, or green. Maybe we should know that poses and lighting can influence our desires and buying habits. Although business experiments are not new, how they are done and for what purpose forces us to re-examine practices. Along the way, we will re-visit markets versus manipulation versus power versus nudging versus culture versus shaping as we better see what is happening and then ask why and whether about those outcomes.


Will The Nobel Committee Follow Oscar and Restrict Selling Medals?

Apparently Watson, of DNA discovery fame, is selling his Nobel Medal. Christie’s estimates the price at $2.2 million. I will go into the reasons for the sale below. But first, I wonder whether the Nobel Committee will put in a restriction on selling the medals. The Oscar folks, (aka the Academy of Motion Picture Arts and Sciences) placed a restriction on awards granted after 1950: the recipient or heirs had to offer it the the Academy for $1 before selling to anyone else. Unrestricted Oscars have been sold for $510,000 (1993, Vivien Leigh’s Oscar for “Gone with the Wind”) and $1,540,000 (1999 David O. Selznick’s Oscar for “Gone with the Wind”) among other prices. Whether the Nobel folks see the award as their key asset (as AMPAS does) or they have other objections to its sale will determine what they do.

For those wondering why sell the medal, Watson made some comments about race in 2007. According to Irish Central, in an interview with the Financial Times, Watson said he was “‘inherently gloomy about the prospect of Africa’ because ‘all our social policies are based on the fact that their intelligence is the same as ours – whereas all the testing says not really.'” That statement resulted in boards and other groups choosing not to work with him. In short, he needs the money.

Given that Watson has said he will give some of the money to science charities, I wonder whether he might set up fund in honor of Rosalind Franklin, the woman who took the picture that allowed the structure of DNA to be seen and died four years before the Nobel for DNA’s discovery was made. (The Nobel prize is awarded only when one is alive). Nonetheless, her credit has been lost. Then again if Ms. Franklin were alive, she might not be happy to have a fund created in her name by someone who has Watson’s current reputation, let alone the DNA discovery problem.

Correction: Earlier version mistakenly listed Crick as the Nobel medal seller.