Author: Solangel Maldonado


Introducing Guest Blogger Angela Onwuachi-Willing

I am delighted to welcome Professor Angela Onwuachi-Willig as a guest blogger for the month of March.  Angela is Professor of Law and the Charles M. and Marion J. Kierscht Scholar at University of Iowa College of Law where she researches and writes in the areas of employment discrimination, family law, critical race theory, and feminist legal theory. Her articles have appeared or will appear in the California Law Review (Berkeley), Michigan Law Review, Vanderbilt Law Review, Harvard Civil Rights-Civil Liberties Law Review, Wisconsin Law Review, Minnesota Law Review, Washington University Law Review, and Yale Journal of Law and Feminism, among others.  She has published opinion-editorials in the Chicago Tribune, Sacramento Bee, Des Moines Register, and Iowa City Press Citizen on numerous occasions.

Professor Onwuachi-Willig is Chair of the AALS Section on Law and Humanities. In 2006, she was honored for her service by the Minority Groups Section of the AALS with the Derrick A. Bell Award, which is given to a junior faculty member who has made an extraordinary contribution to legal education, the legal system, or social justice.

Angela’s publications include:

Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. (forthcoming 2010)

Complimentary and Complementary Discrimination in Faculty Hiring, 87 Wash. U. L. Rev. (forthcoming 2010)

The Declining Significance of Presidential Races?, 72 Law & Contemp. Probs. (forthcoming 2010)

A House Divided: The Invisibility of the Multiracial Family, 44 Harv. C.R.-C.L. L. Rev. 231 (2009) (co-authored with Jacob Willig-Onwuachi of Grinnell College)

Cracking the Egg: Which Came First—Stigma or Affirmative Action?, 96 Calif. L. Rev. 1299 (2008) (co-authored with Emily Houh of the University of Cincinnati College of Law and Mary Campbell of University of Iowa Sociology)

A Beautiful Lie: Exploring Rhinelander v. Rhinelander as a Formative Lesson on Race, Identity, Marriage, and Family, 95 Calif. L. Rev. 2393 (2007).

The Admission of Legacy Blacks, 60 Vand. L. Rev. 1141 (2007)


Call for Papers — March 12, 2010 Deadline

Seton Hall Law School will host the Third National People of Color Legal Scholarship Conference, September 9-12, 2010.  This conference will address critical national and global issues through the lens of legal scholarship that explicitly and implicitly examines contemporary racial context.  It will feature panels on the “war on terror,” urban revitalization, criminal law, health care, education, immigration, human trafficking, voting rights, international and comparative law, judicial nominations, environmental justice, and corporate responsibility, among others.  It will also include a Junior Faculty and Development Workshop.

The conference planning committee is seeking proposals for panels and workshops that fit within its broad theme, Our Country, Our World in a “Post-Racial” Era.  It is also accepting drafts for work-in-progress sessions and shorter “thoughts-in-progress” sessions to informally discuss future research and writing ideas. 

Please e-mail a one page abstract of your submission to Professor Kamille Wolff, Co-Chair of the Program Committee, at by March 12, 2010.  For more information about the conference, go to


Law School Diversity and U.S. News

Some of you may have seen the recent study finding that the percentage of African-American and Mexican-American students in law school has decreased in the last fifteen years.  The study found that although there are 3,000 more first-year seats available today than in 1993 (the number of law schools has increased from 176 to 200), few of those seats are being filled by African-American or Mexican-American students.  As a result, African-American and Mexican-American students comprise a smaller percentage of the entering law school class than they did in 1993.  According to the ABA, the same trend is true of Puerto Rican law students, but that is not the case with all minority law students.  In fact, both the number and percentage of law students who self-identify as “Other Hispanic,” Asian, or Pacific Islander increased significantly from 1993 to 2008.

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Introducing Kristin Johnson


I’m so pleased to welcome Kristin Johnson as a guest blogger for the month of January.  Kristin is an Associate Professor of Law at Seton Hall Law School and specializes in corporations law and teaches Business Associations and Securities Regulation.  Prior to joining Seton Hall Law, she was Assistant General Counsel and Vice President at JPMorgan.  Before that, she was a corporate associate at Simpson, Thatcher and Bartlett LLP in New York, where she represented issuers and underwriters in domestic and international debt and equity offerings, lenders and borrowers in banking and credit matters and private equity firms and publicly traded companies in mergers and acquisitions. Prior to law school, she was an analyst at Goldman Sachs & Co.

Kristin received her B.A., cum laude, from Georgetown University, and her J.D., from the University of Michigan Law School, where she served as Notes Editor of the Michigan Law Review. Following graduation, she served as a Bates International Research Fellow and clerked for the Honorable Joseph A. Greenaway, Jr., United States District Court for the District of New Jersey.

Welcome Kristin.


Not to be Missed Panels at AALS

There are many reasons to go to the AALS Annual Meeting next week but here are two more.  The Section on Women in Legal Education has organized two stellar panels that are sure to be informative and engaging.  Concurring Opinions blogger, Danielle Citron, is one of the panelists on the First Amendment Meets Cyber-Stalking Meets Character and Fitness panel.   See  below for details on both panels.


Saturday, Jan. 9, 8:30–10:15 a.m.:  The First Amendment Meets Cyber-Stalking Meets Character and Fitness

Cyber-stalking and cyber-harassment have made their way to the legal academy.  Some scholars say that on-line attacks constitute protected free speech.  Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities.  But what about the character and fitness requirements that law students sitting for the bar must satisfy?  Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, “Above the Law,” etc.) raise fitness and professionalism issues?  Is there a problem with law students using websites to make outrageous gender- or race-specific comments (often about other students or faculty members)?  (See  Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address?  Does the fact that it is technologically difficult to identify all posters impact the calculus?


Deborah L. Rhode, Stanford Law School

Jack M. Balkin, Yale Law School

Brad Wendel, Cornell University School of Law

Danielle Citron, University of Maryland School of Law

Moderator:  Elizabeth Nowicki, Boston Univ. School of Law & Chair, AALS Section on Women in Legal Education


Sunday, Jan. 10, 9-10:45 a.m.:  Succeeding in Legal Education

According to a 2007-2008 AALS report, women comprised 61.3% of all law school lecturers and 53.9% of law school assistant professors, yet only 29.3% of all full professors and 19.8% of all law school deans.  To that end, this panel will focus on practical strategies for succeeding in legal education.  Topics will include becoming a dean, excelling at scholarship, creating a meaningful media presence, achieving leadership positions in legal organizations, and making a lateral move.


Phoebe A. Haddon, Dean, University of Maryland, School of Law

Okianer Christian Dark, Associate Dean and Professor of Law, Howard University, School of Law

Dorothy A. Brown, Professor of Law, Emory Law School

Nancy B. Rapoport, Gordon Silver Professor of Law, Univ. of Nevada, Las Vegas, School of Law

Moderator:  Elizabeth Nowicki, Boston Univ. School of Law & Chair, AALS Section on Women in Legal Education


Regulating Surrogacy–But Only In Certain Cases

A few days ago, the New York Times ran an article on the legal regulation of gestational surrogacy, or rather, the lack thereof.   A gestational surrogate carries an embryo created from either (1) the intended parents’ eggs and sperm, (2) donated eggs or sperm, (3) or donated eggs and sperm.  Although some people object to all types of surrogacy, it is this third type that is most controversial because the intended parents—the persons who contracted with the gestational surrogate—have no genetic link to the child they contracted to create.  

Gestational surrogacy raises many questions—for example, what happens when the gestational surrogate refuses to relinquish the child at birth—but I want to focus on one issue I find particularly disturbing.  In an effort to provide uniformity and predictability, the American Bar Association has drafted a model act for states to adopt.  The act would require individuals seeking to create a child using a gestational surrogate to obtain court preapproval and undergo a home study similar to that required of adoptive parents.  At first glance, preapproval seems like a good idea as it would ensure that the parties know their rights and that the intended parents are fit to raise a child.  My problem with the proposed act is that the home study and preapproval process is only required where neither of the intended parents has a genetic tie to the child. 

On one level, the ABA’s proposal makes sense.  Some the concerns raised by gestational surrogacy—the commercialization of procreation and commodification of children—might not be present when at least one of the intended parents is also a biological parent.  Arguably, it might be more difficult to justify regulation of surrogacy agreements when parents are raising their own biological children and relying on technology to merely facilitate the creation of those children, as opposed to creating and raising children unrelated to them. 

I am troubled, however, by the message the law would send if it required court preapproval of gestational agreements involving intended parents who are unable or unwilling to provide their own gametes while imposing no such burden on those who provide their own gametes.  It may signal that parents who lack genetic ties to their children are somehow not “real parents” in the same way as those with biological ties.  I wonder whether this message would further fuel the desire of individuals currently using all kinds of technology to create their own biological children, sometimes at great physical, emotional, and financial cost to them and their families.  I also wonder whether such a law would signal to adoptive parents and children that their families are somehow different (and less desirable) than those who share biological ties.


Introducing Guest Blogger Rachel Godsil


I’m very pleased to announce that Professor Rachel Godsil is back for another guest visit.   Rachel is the Eleanor Bontecou Professor of Law  at Seton Hall University School of Law where she teaches Property, Family Law, Equality Under American Law, and Zoning and Land Use Policy.  She has also taught at the University of Pennsylvania Law School.  While on sabbatical, she served as convener of the Urban and Metropolitan Policy Group, advisor to the HUD transition team, and co-directed a report to HUD entitled “Retooling HUD for a Catalytic Federal Government.”

Rachel graduated from the University of Michigan Law School, where she served as executive articles editor of the law review, was awarded the Henry M. Bates Memorial Award, and was elected to the Order of the Coif.  Prior to joining the Seton Hall faculty, she clerked for the Honorable John M. Walker, Jr., U.S. Court of Appeals for the Second Circuit, was an Assistant United States Attorney for the Southern District of New York, and Associate Counsel at the NAACP Legal Defense and Educational Fund.  She was also an associate with Berle, Kass & Case and with Arnold & Porter in New York City.

Rachel has written extensively on the convergence of race, poverty, and the environment.  Her recent publications include:

* Protecting Status:  The Mortgage Crisis, Eminent Domain, and the Ethic of Homeownership, 77 Fordham L. Rev. 949 (2008)

* Contaminants in the Air and Soil in New Orleans after the Flood: Opportunities and Limitations for Community Empowerment (co-authored with Al Huang and Gina Solomon), in KATRINA AFTER THE FLOOD (Robert Bullard, ed. 2008).

* Building Upon Sax’s Edifice: The Evolution of Environmental Justice and the Challenges of the Engaged Scholarship (Gerald Torres, ed. 2007)

* Just Compensation in an Ownership Society (co-authored with David Simunovich), in PRIVATE PROPERTY, COMMUNITY DEVELOPMENT, AND EMINENT DOMAIN (Robin Paul Malloy, ed. 2007)

* Race Nuisance: The Politics of Law in the Jim Crow Era, 105 Mich. L. Rev. 505 (2006)


Rachel’s law review note, Remedying Environmental Racism, 90 Mich. L. Rev. 394 (1991) is one of the most cited law school notes of all time.


Unmarried Couple Ban Symposium

This symposium announcement just crossed my desk:

The Arkansas Law Review will host a symposium on the Unmarried Couple Adoption Ban on November 5, 2009, at the University of Arkansas School of Law in Fayetteville, Arkansas. The symposium will address the legal and political issues surrounding what was Arkansas’s Initiated Act 1, banning the adoption of children by unmarried couples in the state, as well as the national context in which it was passed. It will represent a balanced presentation of the various viewpoints on this widely debated issue.

Primary speakers will be Professor Mark Strasser of Capital University School of Law and Professor Lynn Wardle of Brigham Young University Law School. Representatives from Arkansas Advocates for Children & Families and the Family Council Action Committee will also participate.


Assimilation: What Will It Mean for Affirmative Action?

Orlando Patterson, the well-respected Harvard sociologist, wrote an article in the New York Times this week in which he argued that immigrants from Latin America and Asia will assimilate into mainstream American culture (whatever that might be) in the same way as European immigrants from the late 19th and early 20th century had. Maybe he’s right. Although social scientists have argued that Latino and Asian immigrants will not be able to assimilate as rapidly as Irish, Italian, and Jewish immigrants because the former are not white, there is some evidence suggesting that the children of Latino and Asian immigrants are assimilating quite well. They tend to be English-dominant (many do not speak or understand their parents’ native language), they have high intermarriage rates (with whites primarily but also with other groups), and many reside in integrated or predominantly white neighborhoods—all indicators of assimilation. Many Latinos (approximately 50% according to Patterson) also self-identify as white, suggesting that their experiences might not be that different from those of European immigrants.

These facts notwithstanding, many Latino and Asian-American scholars would disagree with Professor Patterson’s assertion. They would point to continuing discrimination and evidence of implicit biases against Latinos and Asian-Americans and the widespread perception that these groups are not “really American,” as illustrated by the question “no, where are you really from?” when a person who does not look Black or White says that he is from Texas, California, or Kansas.

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Is Divorce Too Easy? Helping Marriages Survive Infidelity

Last week I came across a New York Times article that has led me to question my position on the legal regulation of divorce.   I generally agree that once a person decides to end his or her marriage, there is little that lawmakers can do to help “save” it.   Most people know that divorce often wreaks havoc on the family’s financial security, is almost always painful for the children, and can have long term negative effects on children’s emotional health, academic achievement, and adult relationships.   Despite this knowledge, approximately one million children each year experience their parents’ divorce.   Although there are many reasons why couples divorce, adultery is often at the top of the list.  While some states require spouses seeking a no fault divorce to live apart for a statutory period (often 6 months), no state imposes a waiting period when the alleged ground is adultery.  Adultery is seen as a marital offense that no one should have to endure.  Indeed, until the late 1960s, adultery was the only ground for divorce in New York.  It turns out, however, that most marriages survive adultery.  In other words, although a betrayed spouse has the legal right to file for divorce immediately (at least in the two-thirds of states that still have fault based divorce), most do not.   Marriages often last for years after the infidelity is discovered.  

Many of us find it hard to believe that, in a time of websites with mottos such as “Life is short.  Have an affair“,  marriages might actually be stronger and more resilient today than they were 20 or 30 years ago.   The divorce rate has stabilized in recent years after rising dramatically in the 1970s and 80s.  In addition, the 10-year divorce rate for couples who married in the 1990s is significantly lower than that of couples who married in the 70s and 80s.   Admittedly, a lower divorce rate does not necessarily mean that spouses are happy, but marriage has traditionally served a greater good than promoting the happiness of its individual members.   The Supreme Court has described marriage as the “foundation . . . of society, without which there would be neither civilization nor progress.”   Zablocki v. Redhail, 434 U.S. 364, 384 (1978).

Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity?  For example, the reason why some states require couples seeking a no fault divorce to live apart for a significant period of time is that lawmakers believed that this waiting period might actually lead to reconciliation.  The hope was that spouses who were living apart while waiting out the statutory period would come to the realization that they did not want to be apart and would reconcile.  I am not aware of any empirical evidence suggesting that this waiting period actually leads to long term reconciliation, but many couples do reconcile after separation.  Maybe they would not have done so had they been able to seek a divorce immediately.  

Studies have found that at least two-thirds of people who discovered a spouse’s  affair were still married and living with the cheating spouse years later.   These studies might suggest that the law need not provide an incentive for spouses to stay together after infidelity—the majority are already doing so even though they have legal ability to exit immediately.  Of course, there are many reasons why a betrayed spouse might stay (for the sake of the children or financial stability, for example) even if the law does not place any obstacles to exit.   But is it possible that some marriages that did not survive infidelity could have survived had the law made divorce more difficult?  Is it possible that a woman (whose first instinct upon discovering her husband’s affair is to kick him out) would give him a second chance if she knew that she was stuck with him anyway for at least another 6 months to a year.   As the New York Times article noted, although the wife of unfaithful South Carolina Governor Mark Sanford asked him to move out after she discovered his affair, she still believes that their marriage can be repaired.   What if the law could give them a push in that direction?  Although a waiting period alone might not change spouses’ willingness or desire to try and save their marriage after an affair, social norms might.  If the law were to require a cooling off period in cases of adultery, as it often does in no fault divorce cases, it would signal that adultery is forgivable—that society no longer considers it an offense that no one should be expected to endure.   As a result, individuals who do not give their cheating spouses a second (or third, or fourth) chance could be stigmatized as uncommitted or even selfish.  Therein lies the challenge when law tries to regulate intimate relationships.  How can lawmakers encourage stronger marriages (which are presumably good for society and children) while simultaneously respecting individuals’ rights to personal happiness and freedom?