Author: Solangel Maldonado


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?


Criminalizing Matchmaking: Mail Order Marriage Laws

During his recent appearance on the Late Show with David Letterman, actor Alec Baldwin, who has been involved in a bitter custody dispute with his ex-wife for years, offended many people when he said that he would love to have more children and was “thinking about getting a Filipino mail-order bride.”  Mr. Baldwin has since apologized for the insensitive comment and admitted that “such anger and frustration about the issue of sex trafficking is understandable.”   Admittedly, some mail order marriages are the result of sex trafficking, but does this mean that countries should criminalize the mail order marriage industry as the Philippines has done?

The Philippines has two statutes addressing mail order marriages.  Republic Act No. 6955, enacted in 1990, makes it a crime for any person to “carry on a business which has its purpose the matching of Filipino women for marriage to foreign nationals either on a mail-order basis or through personal introduction.”  The penalty for violation of the Act is a minimum six years imprisonment.  In addition, if the offender is a foreigner, he will be deported (after serving his sentence) and permanently banned from Philippines.

In 2003, the Philippines enacted the Anti-Trafficking in Persons Act,which, among other things, makes it illegal “To introduce or match for money, profit, or material, economic or other consideration . . . any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage.”   The penalty for violation of the Anti-Trafficking Act is 20 years imprisonment and a minimum fine of one million pesos.

Despite these laws, the mail order bride industry continues to flourish.  Experts estimate that one-third to one-half of all foreign fiancees who enter the United States each year met their American husbands-to-be through an international marriage broker.  A large majority of the women come from Southeast Asian countries, including the Philippines, and the law has had little effect on international marriage brokers who do a lot of their advertising and matching online.  Although the United States also has laws regulating the mail order bride industry, some commentators argue that these marriages exacerbate gender, race, and class inequalities and thus, the United States should follow the Philippines’ approach.  Thoughts?


Forgiving the Ex, Part III

In my last post, I proposed that states require or recommend that angry, divorced parents participate in forgiveness interventions. While many people are probably skeptical of the law’s ability to cultivate forgiveness between divorced parents, lawmakers have already attempted to facilitate forgiveness in other contexts, for example, victim offender mediation (“VOM”) in criminal cases.

During a VOM, the victim has the opportunity to tell the offender how his crime has impacted his or her life. The offender is then given the opportunity to express his feelings and reasons he committed the criminal act. Many crime victims who participated in VOM have been able to forgive their offenders for acts ranging from petty thefts and vandalism to horrendous crimes such as rape and murder of a loved one.

Some of the factors that have made VOM successful as far as enabling crime victims to start healing might apply in the context of divorce. First, just like crime victims, divorcing spouses often feel that an injustice has been done to them. Second, similar to crime victims who have benefitted from telling their attackers how their crimes have negatively impacted their lives, divorcing spouses want their spouses to know just how deeply they have hurt them. Third, in VOM, the opportunity to listen to the attackers’ reasons for their behavior has helped victims forgive. Listening to a former spouse express his feelings and reasons for his hurtful behavior might similarly enable a hurt spouse to feel compassion and empathy, necessary elements of forgiveness.

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Forgiving the Ex, Part II

In a post last week, I discussed the negative effects of persistent anger against a former spouse, including the harm to their children. I suggested that maybe lawmakers need to encourage divorced parents to forgive each other. As I write this sentence, I realize how naïve and simplistic that sounds. How are lawmakers supposed to help people forgive a former spouse who abused, betrayed, or neglected them? Doesn’t encouraging people to forgive suggest that their anger is unwarranted? Doesn’t it suggest that the injurer’s actions were justified or that one is condoning or excusing her wrongful and unjust behavior? Well, no. Forgiveness does not mean that the forgiver does not have a right to be angry. To the contrary, the person who forgives chooses to “abandon [her] right to resentment . . . toward one who unjustly injured [her] while fostering the undeserved qualities of compassion, generosity and even love toward [the injurer].” Enright et al. (1999).

When asked if they have considered forgiving someone who has hurt them deeply, people often reply that the other person “doesn’t deserve forgiveness.” That may be so, but one does not forgive for the injurer’s benefit, but for one’s own benefit and possibly, for the benefits to one’s children. As I discussed in my earlier post, forgiveness may reduce anger and its negative effects on one’s physical and psychological health and parenting abilities. It might also reduce some of the destructive behaviors some parents engage in after divorce such as interfering with the other parent’s access to the children or disparaging him or her in front of the children. It might also enable some former spouses to cooperate as co-parents in their children’s upbringing. The question is not why divorced parents should forgive, but rather how can they be encouraged to do so?

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Forgiving the Ex

It seems that Americans are giving a lot of thought to forgiveness these days. We are asking ourselves whether we should forgive Eliot Spitzer, bailed-out bankers, and the Bush administration’s practice of torture. Oprah and the Mayo Clinic have sections on forgiveness and, a few weeks ago, Case Western Reserve Law School held a symposium on “Forgiveness, Reconciliation, and the Law” where the keynote speaker, Jens Meierhenrich, analyzed the Truth and Reconciliation Commission of South Africa. I want to focus on an area where I think forgiveness matters most—at home.

It is no surprise that some (possibly many) divorcing spouses feel angry and vengeful during and after the divorce. This anger may be healthy at first. It might motivate a battered spouse to leave her abusive partner or push a husband to leave an unfaithful wife who is unlikely to change her behavior. Anger is a sign of self-respect and belief in one’s self-worth. However, anger that endures for months, years, even decades, is not healthy. Studies have found a correlation between long-term anger and high blood pressure, poor cardiovascular health, depression, anxiety, and sleep disorders.

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