Yearly Archives: 2013

The Costs of Imprisoning Nonpaying Parents

Dec 16, 2013 Brian BixAdd a Comment

There are well-known problems with child support, the court-ordered financial obligations that non-custodial parents—whether divorced or separated from the other parent, or never married to that parent—owe to custodial parents for the care of the children. It has been long documented that such support awards are often too low, and are far too frequently under-paid or not paid at all. Over the last few decades, a panoply of federal, state, and interstate laws and procedures have been created to try to increase the enforcement of support awards and to increase the amount of money reaching children and their caregivers. By most accounts, these efforts have been successful, at least to some degree. However, legal reforms often have unintended consequences, and, as often as not, these negative consequences often affect groups that are already disadvantaged. As Tonya Brito explains in her important article, Fathers Behind Bars, these negative consequences are happening with enforcement measures for child support, especially the use of incarceration for non-payment.

In some states, those in prison for non-payment of support make up a significant portion of the jail population. This is perhaps not surprising. Imprisoned parents (usually, but not always, fathers) often are ensnared in a cycle in which they are incarcerated because they cannot earn money to pay off their obligations; their incarceration record hinders their employment opportunities after incarceration, placing them in the unenviable position of risking additional imprisonment because they are still unable to pay off their support obligations. To illustrate this troubling cycle, Brito focuses on the story of Michael Turner, who had been in prison six times since 2005 for nonpayment of child support.

As Brito points out, more affluent non-custodial parents, who can pay off their indebtedness but have (for whatever reason) chosen not to, rarely end up in prison. Instead, these parents merely have the back-due amounts garnished from their wages or their tax refunds. Even when these parents face criminal or civil contempt actions for non-payment, they are more likely to avoid prison because they can afford to hire good lawyers.

What gets lost in the rhetoric of child support enforcement orders against “deadbeat dads” is that a significant portion of child support obligors are unlikely to ever pay their indebtedness, either because they are in prison, they are disabled, they cannot find work, they have trouble keeping their jobs, or the jobs they can get do not pay enough. As Brito reports, many of these poor parents have been given support obligations they cannot afford, either because states have mandatory minimum obligations regardless of the obligor’s ability to pay; because the courts may have imposed large retroactive support obligations; because obligors, for various reasons, have failed to participate in the process and are then subject to default judgments; or because courts have imputed income to obligors, concluding—sometimes without warrant—that those parents could be earning significantly more money than they currently do.

Brito’s appropriate concern is that the whole child support enforcement process has become too focused on reimbursing the state for its benefit payments and too little concerned with getting more resources to poor families. Where a custodial parent has received support payments from the state, child support payments by the non-custodial parent go to the state directly, as most states do not allow any “pass through” to the custodial parent. Brito would have support orders for low-income parents turn on an individualized assessment of ability to pay, greater job-related support for low-income parents, and greater public responsibility for helping the children of lower-income families.

The argument throughout the paper is consistently sensible and well-grounded in policy arguments and empirical research. What is sad is how hard it is to be optimistic that her suggested reforms, or anything like them, will be enacted widely—a pessimism that Brito seems to share. Concern for the poor is at an all-time low on the political agendas of both parties. Further, in times of great state and federal budgetary stress, it will be hard to gain momentum for proposals that would increase costs and take revenue away, especially when the immediate beneficiaries would be portrayed as noncustodial parents who are not making their support payments because of incarceration or unemployment. However, if even just one jurisdiction would take Brito’s approach, we all might discover, as Brito predicts, that the costs saved from unnecessary incarceration may make up for any additional costs elsewhere, and the longer-term benefits to low-income families and their children, and eventually to society as a whole, would be substantial.

Domestic Partnership Before Same-Sex Marriage

Nov 13, 2013 Carlos BallAdd a Comment

The left critique of the marriage equality movement has raised important questions about the privileging of marriage in our society and whether the push for same-sex marriage reinforces the second-class status of nonmarital (and nonintimate) relationships. This critique is invaluable because it presses us to focus on what should be the ultimate objective behind the current push to gain marital rights for same-sex couples: The end goal should be to encourage society and the state to recognize, support, and value many different types of familial and personal relationships. I view same-sex marriage not as an end in-and-of-itself, but as a means for having broader (and more important) debates over the role of gender, biology, and marital status in legally recognizing and supporting relationships between adults and between adults and children.

There is much to the left critique of same-sex marriage, therefore, that I value and respect. However, there is one aspect of that critique, related to the push for the legal recognition of relationships before the age of same-sex marriage, about which I have always been skeptical. Some critics have claimed that at the time marriage equality became the LGBT rights movement’s most important goal starting around the mid-1990s, there were well-organized efforts under way in different parts of the country aimed at reducing the importance of marriage, primarily by demanding the enactment of domestic partnership laws. These critics have claimed that if it had not been for the marriage equality movement, the early efforts to promote alternatives to marriage would have borne fruit, to the point where marriage today would be less central to the distribution of rights and benefits.

In his forthcoming article, Professor Douglas NeJaime looks closely at the relationship-recognition advocacy in California during the 1980s and 1990s. Through interviews with some of the participants, reviews of primary sources (including a plethora of task force reports), and analyses of contemporaneous media stories, NeJaime provides us with a rich account of the arguments made on behalf of the recognition of same-sex relationships before the issue of marriage exploded onto the national scene. NeJaime’s findings complicate the simple dichotomy between pre-marriage relationship-recognition advocacy and marriage equality advocacy. NeJaime shows how LGBT rights activists in California, prior to the mid-1990s, consistently used the government’s failure to recognize same-sex relationships as marital as a main justification for demanding that same-sex couples be given the opportunity to register as domestic partners. NeJaime also shows how activists repeatedly analogized between committed same-sex relationships and marital heterosexual ones.

The evidence uncovered by NeJaime shows that “LGBT work outside of marriage in significant ways built, rather than opposed, the case for marriage that we see today.” (P. 5.) Advocates used marriage as the reference point to try to gain acceptance for domestic partnership regimes: “To gain support for nonmarital rights and benefits, advocates cast same-sex relationships as marriage-like and built domestic partnership in reference to marriage, thus reinscribing—rather than resisting—the centrality of marriage.” (P. 3.)

The article’s contribution, however, does not end there. NeJaime also astutely notes that the historical record in California shows how domestic partnership advocacy promoted an evolving understanding of marriage, one that was less “rooted in gender complementarity, procreative sex, and biological parenting.” (P. 84.) This alternative view of marriage emphasized the romantic affiliation, emotional commitment, and economic interdependence of spouses. By defending this alternative understanding of marriage, domestic partnership advocates not only paved the way for same-sex marriage, but also contributed to modifying the contours of marriage more generally.

None of this undermines the normative component of the criticisms raised by many feminists and queer theorists of the institution of marriage and of the ways in which the LGBT rights movement has pushed for the recognition of same-sex relationships as marital. But it is important to get our history right. As NeJaime shows, there was no clear divide between the advocacy that preceded the hard push for same-sex marriage and what came afterwards. This is a story of continuity rather than of paradigm shifts.

It is unrealistic, given marriage’s hegemony in matters related to relationship recognition, that the institution will go quietly into the night. Nonetheless, it seems reasonable to believe that an important first step in reducing that hegemony is to try to make the institution less hierarchical and less gender-centric. These inclusionary changes to the contours of marriage will hopefully lead to additional explorations of how to further expand state recognition and support for nonmarital and nonintimate relationships. It behooves those who share this goal not to look back with rose-tinted glasses to the days before the push for same-sex marriage supposedly derailed the quest for nonmarital forms of recognition. Instead, we need to develop smart and focused advocacy strategies that will build on the successes of the marriage equality movement to gain legal recognition and protection for a broader array of relationships, including nonmarital and nonintimate ones.

Breaking The Silence: Prison, Child Welfare And The Systemic Oppression Of Black Women

Oct 15, 2013 Shani King

Dorothy Roberts has previously written about the impact of widespread incarceration on black families, including the damage to social networks, the distortion of social norms, and the destruction of social citizenship. She has also written extensively about the child welfare system’s injuries to African-American families. In her latest article, Prison, Foster Care and the Systemic Punishment of Black Mothers, Roberts weaves together these two systems and analyzes how they intersect and converge, not only in the lives of African-American families, but particularly in the lives of poor black mothers. Roberts extends her analysis to show how the two systems naturalize social inequality and blame black women for the same inequality that the systems create. In doing so, Roberts exposes a pernicious cycle in which stereotypes about black female criminality and irresponsibility legitimate government intervention. The destructive effects of government intervention, in turn, reinforce those stereotypes.

As Roberts explains, other scholars (including Roberts herself) have exposed prisons and the child welfare system as instruments for social management and racial oppression, particular in African-American communities. Sociologist Loic Waquant, for example, includes mass incarceration within the long line of “peculiar institutions” that have subordinated African Americans, including slavery, Jim Crow, and urban ghettos.¹ And legal scholar Michelle Alexander has argued that the mass incarceration of African-Americans functions like a modern day Jim Crow caste system by permanently excluding a large percentage of the African-American community from mainstream social and economic realms.² While recognizing the importance of this scholarship, Roberts explains that it overlooks incarcerated women. This oversight is unfortunate, as the population of black women incarcerated for drug offenses exploded by 828% from 1986 to 1991.

But it is not just criminal justice scholarship that has overlooked the plight of black women. The same is true, Roberts argues, of feminist scholarship, which has focused on the effects of welfare on women, but has been less attentive to the role of the public child welfare system on poor mothers’ ability to care for their own children. In this article, Roberts remedies this oversight and identifies the connections between these two systems. Using government statistics and reports, she shows how the interactions of the prison system and the child welfare system results in the massive removal of children from black mothers, choosing to punish black mothers by severing their familial ties rather than addressing the root causes of their poverty. Federal legislation compounds the injury by shifting support for children from public assistance to often-elusive private employment, or even to adoptive families.

Roberts thus makes two novel and substantial contributions to antiracist and feminist scholarship: she extends the discourse about mass incarceration and the prison system’s role in maintaining racial inequality to focus specifically on black women, and she analyzes how the prison system and the child welfare system intersect to punish black mothers because they are black and because they are women. Roberts poignantly names this intersection a “system of interlocking oppressions.” Since black women suffer the combined effects of racism and sexism, they have experiences and suffer injuries that are different from those of white women and black men. The systems create conditions that uniquely injure black women in two fundamental ways: by political choices to fund punitive instead of supportive programs, and by the discretionary actions and perspectives of decision-makers that are fueled by destructive stereotypes of black women as irresponsible “welfare queens”—sexually promiscuous, carelessly prolific of unwanted offspring, and unfit to raise children.

As Roberts explains, punitive political choices include treating allegations of public-benefits fraud as criminal matters rather than civil infractions, criminalizing drug addiction, and focusing resources on the termination of parental rights and adoption rather than the reunification of poor black mothers with their children. The criminalization of black women, in effect, pushes women into the prison system, which then works with the child welfare system to destroy family relationships. Take, for example, the case of children born to women who are incarcerated. Immediately after delivery, the vast majority of states automatically place their newborns in foster care; federal law encourages the termination of their parental rights; and the requirements imposed by child protective services are often virtually impossible to comply with, given the frequent conflict between prison policies and those of child welfare systems. Despite these manifest difficulties, child welfare authorities may view a mother’s failure to visit and communicate with her child as abandonment and grounds for terminating parental rights. The remote locations of most prisons, the cost of travel, and inadequate government support for relatives for childcare exacerbates the problem and decreases the likelihood that black mothers will be able to overcome the odds and maintain healthy relationships with their children. Finally, when mothers are released, post-prison collateral penalties make it difficult to maintain the parent-child relationship. These collateral penalties include federal and state laws that deny drug offenders public benefits, housing, education and job opportunities, and that bar individuals with criminal records from certain employment. Without a job or place to live, women can find it very difficult to meet the requirements of child welfare agencies and thus risk the termination of their parental rights.

Critically, Roberts makes clear that even outside of its intersection with the prison system, the child welfare system has evolved over time into one that is designed to punish black mothers. Indeed, as the system began to serve fewer white children and more children of color, state and federal governments made a choice to spend more money on out-of-home care and less on in-home services. As Roberts has extensively discussed throughout her scholarship, the system responded to an increasingly black female clientele by reducing services to families while intensifying its punitive functions. In effect, the mission of child welfare changed from protecting children from social disadvantages stemming from poverty and racial discrimination to protecting children from purported maltreatment at the hands of their mothers.

Roberts is quick to note that the damage that comes from attributing poor black families’ hardships to maternal deficits is dangerous. This practice obscures the systemic causes of these hardships, devalues black family bonds, and, as Roberts makes clear, “prescribes foster care in place of social change and services.” The result is that black children are unnecessarily separated from their mothers and that white, middle-class and affluent parents can ignore the injustice of the system by believing the false narratives about poor black mothers. The act of blaming black mothers is particularly insidious because it justifies unnecessary state intrusion into the family and because it allows privileged families, who otherwise might advocate for change, to ignore the injustice of the system.

Ultimately, Roberts believes that the state’s role in assisting families should be much greater, and furthermore, that the overrepresentation of black children in foster care results from racial, class, and gender inequities in U.S. society and child welfare practices. The solution to maternal incarceration, Roberts suggests, is family support and reunification, not permanent disruptions. Her perspective is not unopposed by feminists or child protection experts. Roberts’ article is a profoundly important one in an ongoing debate about a child welfare system that is in crisis. The other side of the debate is possibly best represented by Harvard Law School Professor Elizabeth Bartholet, who begins with the premise that current practice fails to protect children from abuse and neglect, and thus, recommends an aggressive policy of family intervention. The premise of Bartholet’s book, Nobody’s Children,³ is that child welfare policy is flawed because, notwithstanding our best efforts, family preservation has proved a futile endeavor. It is society’s commitment to “blood bias,” according to Bartholet, that keeps us focused on family preservation to the detriment of the lives and well-being of children. Bartholet, consequently, strongly supports federal legislation that makes it easier to terminate parental rights, speeds up the timeframe for the termination of parental rights, and provides states financial incentives for terminating parental rights in the process of freeing children for adoption.

In addition to continuing the debate about how to repair a broken child welfare system, Roberts fundamentally challenges the existing discourse by exploring how black women are situated both in the discourse of mass incarceration and child welfare and how race, gender and class form the backdrop against which the systems intersect. In doing so, the article breaks the silence for black mothers, who had largely fallen into the gaps of antiracist and feminist discourse. Ultimately, Roberts’ latest article is a must read for family law scholars, gender scholars, children’s rights scholars, and for anyone interested in the structural and political dimensions of race, gender and class, as it has important implications not only for debates about antisubordination, antiracism, and feminism, but also for the right to family unity and children’s independent rights to be raised with their families and within their culture.

Internal Reform of Islamic Family Law through Evolving Standards of…Religion

Sep 13, 2013 Intisar Rabb

John Hursh’s recent article addresses reform of Islamic family law. This is an area of law that has long been constitutionalized in the Muslim world just as it has in the U.S.–most recently through the same-sex marriage decisions. Hursh explores how changes to family law in Muslim-majority contexts come about through “internal reforms” that may ameliorate certain gender disparities. Hursh is concerned with what we might call “evolving standards” of religion, an understanding of which would facilitate contextually salient, and therefore legitimate, reforms to Islamic family law codes. In other words, internal reforms to Islamic family law arise through shifting social-religious mores–which may, in legal terms, be thought of as an analog to American Eighth Amendment jurisprudence’s “evolving standards of decency.” ((The U.S. Supreme Court first elaborated the “evolving standards of decency” framework in its U.S. Eighth Amendment jurisprudence in Trop v. Dulles, 356 U.S. 86, 101 (1958), to define and narrow the scope of “cruel and unusual punishment”; it most recently applied that standard to limit capital punishment and life sentencing of juveniles, respectively, in Roper v. Simmons, 543 U.S. 551, 571 (2005), and Graham v. Florida, 560 U.S. __, 130 S. Ct. 2011, 2017 (2010). “Evolving standards of religion” refers to a consistent theme in the author’s article that core Islamic standards persist, but their range of application may also expand and contract in reform that involves interpretation rather than replacement of foundational norms and language.))

His study comes at important time, when Egypt, Tunisia, and other post-uprising countries seek to create or reform family law and other state laws on the basis of Islamic law. Hursh emphasizes that, based on recent reform efforts elsewhere in the region, such religiously inflected legal systems need not be static or closed to reform. Namely, Hursh highlights possibilities and limitations for religiously informed law reform based on recent changes to the family law code in Morocco.

Joining other scholars and many policy organizations, Hursh describes the 2004 reforms to the Moroccan Personal Status Law (Mudawwana) as a successful case study of the use of Islamic law to advance international law and women’s rights norms. Indeed, the 2004 reforms were roundly hailed as meeting the highest standards of both sets of norms. The reforms were notable for meeting the highest standards of Islamic law as well.

In other words, the 2004 reforms were a specimen of progressive laws on both international and Islamic standards. How so? And can meeting international and Islamic standards be replicable? Hursh answers these questions by challenging three major assumptions that these results were neither possible nor replicable and by describing the mechanisms of the 2004 reforms.

Hursh first challenges the assumption that Islamic law is incompatible with international law when it comes to women’s rights. Of course, he acknowledges, women face discrimination all around the world despite international declarations against it (most notably, UDHR and CEDAW). Yet several women’s rights supporters view the status of women’s liberties in Muslim-majority states as especially precarious. For them, Islamic law itself is patriarchal and prevents any sort of reform that would advance women’s rights. But for Hursh, the Moroccan experience proves that conclusion unwarranted. “[N]either Islam nor Shari’a is a monolithic entity,” he says, drawing on Goran Therborn’s observations from his decade-long world study of family: that patriarchy’s persistence is culturally Arab rather than Islamic and results from the failure of secular forces to challenge it. Hursh also references Nusrat Choudhury’s contention that Islamic law can be used to challenge patriarchy rather than reinforce it. ((P. 258 (citing Goran Therborn, Between Sex and Power: Family in the World, 1900-2000, 116 (2004); Nusrat Choudhury, Constrained Spaces for Islamic Feminism: Women’s Rights and the 2004 Constitution of Afghanistan, 19 Yale J. L. & Feminism 155 (2007)). )) The crux of these discussions is that Islamic law is contested rather than categorical, and accommodates change through evolving standards of cultural-religious mores and legal thought. Hursh’s argument here is analogous to American doctrines like equal protection–where the same institution that read the Constitution to permit a separate-but-equal doctrine (Plessy v. Ferguson) later declared separate to be inherently unequal (Brown v. Board). This reversal occurred not through a change in the legal texts or the court, but through a change in personnel and interpretation in tandem with changed social, cultural and political developments that rendered the old regime untenable. Comparably, for Hursh, reinterpretation of medieval Islamic legal texts regulating sex and gender can support women’s rights just as old interpretations may have undermined them to modern sensibilities. He is careful to provide a caveat: Western-style progressive laws in Muslim-majority countries are by no means inevitable, nor are they always desirable. Rather, one must attend to cultural and religious mores in seeking to make lasting and legitimate changes to existing legal regimes. This, Hursh argues, is exactly what happened in Morocco.

Hursh next challenges the assumption that women lack agency in Muslim contexts. This assumption leads many international actors and commentators to advocate for imposing family law reforms externally through international human rights instruments, without respect to local women’s input. Countering that tendency, Hursh describes women as integral to bringing about Morocco’s 2004 reforms—albeit with the support of the king. Like most post-colonial Muslim countries, Moroccan family law was specifically identified as one of few domains for a significant presence of Islamic law. (Most of Morocco’s other laws were based on the French Civil Code or British laws, or some hybrid of the two.) Following its independence from France and Spain in 1956, the newly installed King Mohammad V codified family law, calling it the Mudawwana (named after the famous legal “Compilation” of Islamic law written in the 8^th century by Mālik, eponym of the Mālikī school that Muslims in Morocco largely follow today). Though there have been several attempts to reform the Code, only the last round—the 2004 reforms under King Mohammad VI—made any lasting changes. Notably, Muslim women were a major component of popular agitation leading to reforms, against conservative Islamists who wished to keep the traditional code. In the end, the King convened a commission comprising members of Muslim women’s rights organizations alongside Muslim jurists and secular parliamentarians—instructing the commission to ground any reform on Islamic law justifications. After a lengthy process of negotiations and debate within the commission, the reforms passed. It would not have been possible, Hursh emphasizes, without the role played by women: “[W]hile the Mudawana reforms would not have succeeded without strong support from the king, the work of women’s rights organizations was also imperative to realizing this reform. Combined with the king’s top-down political support, women’s rights organizations created a bottom-up grassroots campaign that laid the foundation for this reform.” ((P. 262 (citations omitted.) ))

The third challenged assumption has to do with pragmatics: Whereas many international commentators presume the desirability of pursuing reforms without appeal to Islamic law, Hursh suggests that reforms can only happen with appeal to Islamic law. For him, the Moroccan case demonstrates that law reform in Muslim-majority countries must typically appeal to Islamic law to be acceptable, legitimate, and effective. With a reinterpretation of Islamic law in light of liberal norms of equity, the 2004 reforms included progressive changes in 5 major areas of family law: (1) marriage: whereby the Code removes the traditional guardianship requirement for women to get married, equalizes minimum-marriage ages for men and women, and establishes reciprocal rights and duties for both partners; (2) polygamy: whereby the Code restricts men’s ability to enter into polygamous marriages to instances of necessity, the first wife’s consent, and judicial approval; (3) divorce: whereby the Code restricts men’s unilateral prerogative to divorce, expands women’s ability to expedite divorce  in cases of abuse, and affirms the violation of marital contractual conditions as grounds for divorce; (4) child custody: whereby the Code allows women to retain custody of children even when they remarry, reforms child support provisions, and provides for fast-track resolution of child support issues; and (5) inheritance: whereby the Code allows grandchildren to inherit, establishes legal recognition for children born out of wedlock, and provides for the use of DNA evidence to resolve paternity disputes. All of these adjustments, says Hursh, relied not on international law primarily, but on revised readings of precedents in Islamic law in light of both evolving local norms and international law. Morocco had long been a member of the most protective women’s and children’s rights covenants in international law—ICCPR, ICESCR, CRC, CEDAW, and DEVAW—but it entered reservations for each, stating that provisions of those covenants could not conflict with the provisions of Islamic law or the Mudawwana.  After it reformed the Mudawwana, however, Morocco withdrew its reservations to the international treaties, as the reservations had ceased to have meaning or to present a conflict.

By contrast to the reforms driven by reinterpretation of Islamic law, Hursh identifies purely secular reform—that is, legal change without reference to Islamic law—as unlikely to succeed given the extent to which Islam serves as a marker of cultural identity, national pride, and legitimacy. Pragmatically too, Islamic law justifications are popularly acceptable and often democratically desired, and the legislative process is dependent on the king, who has already announced support for sharīʿa.

All in all, Hursh has written a useful contribution to the study of contemporary Islamic family law well worth reading. His study tracks relevant changes in an important episode of modern family law in the Muslim world. It is an example of what M. Qasim Zaman has presented as methods of Islamic “internal critique” in his book Modern Islamic Thought in a Radical Age: Religious Authority and Internal Criticism (Cambridge University Press, 2012). Moreover, it joins a growing chorus of other scholars and lawyers arguing for culturally and religious relevant reform efforts of Islamic family law—including, for instance, Madhavi Sunder ((Piercing the Veil, 112 Yale L. J. 1399-14722 (2003) (on Muslim women using Islam-based reform strategies in India).)) and Nusrat Choudhury. ((Constrained Spaces for Islamic Feminism, 19 Yale J. L. & Feminism 155-200 (2007) (on using Islamic law to advocate for reform in Afghanistan).)) By challenging assumptions about Islamic law vis-à-vis international law, and possibilities for using each as an effective vehicle for reform, Hursh makes compelling arguments about how the starting point for legal analysis of family law may closely inform legal outcomes and possibilities for legal change.

Elderlaw As Family Law

Jul 29, 2013 Janet Halley

How do American law and culture accommodate the fact that old age is almost everyone’s fate, and that—though we know for sure that it ends at last in death—its course and the kinds of dependency it brings are so profoundly unpredictable and often categorically intense?  In this brilliant, grimly humane page-turner of a book, Hendrik Hartog lays out three different historical periods marked by very different answers to this question.

Before the rise of a market economy in the middle of the nineteenth century, old people were cared for and died in their households, surrounded and aided by relatives and, if they had them, servants or slaves.  But as the master/servant relation was replaced by employment in the rapidly industrializing private sphere, and as the household nuclearized into the husband/wife, parent/child family, this ready-to-hand supply of helpers dwindled, often disappearing entirely.  In response to these changes, old people who had property started promising to bequeath it to children, other family members, and even housekeepers in exchange for their staying at home and devoting themselves to filling what we would now call the care gap.

Using New Jersey court records, Hartog’s archival research traces this large social transformation through a small legal shift: people started suing for specific enforcement of these promises, framing them as contracts no different from those typical of the marketplace, and courts started enjoining these inheritances or, in cases with weaker facts, granting unpaid wages payable from the decedent’s estate.  Finally, in post-World-War-II America, these lawsuits disappear from the archive as care for the old and the dying became a commodity paid for by social security programs, pensions, and private savings in the now-burgeoning care industrial complex.

By far the bulk of Someday focuses on the century-long middle chapter of this story, running roughly from 1850 to 1950.  The book’s first part takes the point of view of the old person, desperate to avoid solitude and the poor house and advised on all sides to retain control over property as the only way to gain any leverage over the young.  The family dramas that occupy these chapters are so vividly told, in such loving detail, that the chapters seem to be punctuated with perfect little short stories of human misery.  The second part of the book tells the story of the law, starting with the advice a potential plaintiff would get under the main theories of recovery, and then laying out in transfixing detail how the caselaw evolved to manage, catch up with, and even drive social change.

By the time Hartog reaches this stage of his story, he has built up so much narrative detail, so much social history, and so much law that he is able to trace minute but enduringly important sub-plots: the ways in which gender expectations for sons and daughters could skew decisions about who was doing “extraordinary” work in the home; the ways in which family members sought to intensify status relations that had no legal backing using the tools of contract and property law; the ways in which nonfamily members entered into the care world ever so slowly, bringing contract even deeper into the home.  It is so fascinating to watch the old turn from spouses to children to nieces to stepsons to housekeepers for care, and to see how the legal rules that these relationships cue up shifted from those of traditional family law to those of the market. When is a housekeeper like a daughter?  When is a daughter like a housekeeper?  Throughout, large legal and social transformations appear in the form of highly specific institutional shifts.  For instance, the unpaid-wage cases boosted the rise of nursing as a profession and of the legal distinction between housework and care work that even today marks efforts to regularize domestic labor.  Equally intelligible as employment law and as family law, these cases persistently belie the idea, being cemented into American legal ideology during this very period,¹ that the family and its law were the opposite of the market and the bodies of law peculiar to it, contract and property.

Hartog never loses sight of a large, highly paradoxical dynamic, in which the family, the market and the state have continually morphed around each other in response to changing social strategies for meeting human needs for care and freedom.  Every chapter refutes the dichotomy embedded in Henry Sumner Maine’s motto “the movement of the progressive societies has … been from Status to Contract.”²  Instead, as Hartog demonstrates again and again, liberal individualism and the market economy depend continually on some allocation of dependency needs among the market itself, the family and the state. 

A second major theme of the book is the problem of legal informality.  Old people promised to bequeath their farms and later their homes in exchange for care—but everyone seems to have known perfectly well that testamentary freedom meant that the elderly could die without performing their side of the bargain.  How many caregivers simply acquiesced when they did?  We will never know.  But courts confronted with the ones who sued could invoke the doctrine of partial performance to convert the promise into a binding contract, override the Statute of Frauds, and force the inheritance.  Hartog shows courts making diametrically opposite decisions on the basis of the same matrix of rules and similar facts, presenting a deeply ambivalent attitude about what to do when the need for formality collided with the need for substantive justice, when the moral complexity of the cases beggared the impulse for predictability.

To take another example that vexes family law today: what to do about informal family relationships that resemble formal ones in every other respect?  This theme is threaded throughout Someday, but we can focus on Hartog’s fascinating substory about informal children.  As indentured servitude, slavery and child labor became unthinkable, up came the practice of informal adoption—families bringing distant relatives or even complete strangers into their homes when they were infants or children and hoping that they would remain to care for the old and dying.  When they did, and were excluded from wills, and sued—what were they?  Were they children?  Did the onset of legal adoption make saying yes to that question harder or easier?  Were they lucky beneficiaries with no equitable claim on further largess?  Were they employees?  Anyone concerned about the policy problems we face in family law today, as nonmarital cohabitation and childbearing begin to compete demographically with their marital counterparts, will find this and many related strands of Hartog’s narrative endlessly fascinating.

Finally, the Epilogue produces a succinct account of the massive transformations that produced old age as Americans live it now: public law, public welfare, and individual savings meant and often required to be spent down to nothing, have almost evanesced the direct responsibility of family members, making them at most the managers of their elders’ care in commercial establishments.  And yet, for all the grandeur of these shifts, Hartog concludes with a “reversal” of the account, tallying all the ways in which, even in this diametrically new world, the same anxieties, fears, loves, resentments and regrets permeate the lives of the dying old and their family members today as he found in testimony before New Jersey’s equity courts in the 1880s.

Hartog tells us on his first page that he researched this book while his own mother was waning in a retirement community; the book’s last words dedicate it to his grandchildren.  He put himself into the story, and so I found it impossible to read this book without thinking of my own precarious place on the great conveyor belt of life.  This is family law writing at its best: legally subtle, socially precise, theoretically comprehensive, steadily engaging the human capacity to form productive, life-affirming, loving associations and to crash them in bitter conflicts, and fully exposed to the hard, brute facts of human existence.