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The Roads Not Taken in the Forest of Family Trees

In Queering Family Trees, Sandra Patton-Imani explores parenthood at the intersection of race, class, and sexual orientation during the period from the 1990s until the Supreme Court’s landmark decision in Obergefell v. Hodges.1 This short period of time witnessed dramatic shifts regarding same-sex relationship recognition and adoption at the local, state, and federal levels, culminating in the legalization of same-sex marriage. In Patton-Imani’s exploration, same-sex marriage is only one fragment of the larger story of family policy, which involves welfare, immigration, and adoption policies.

Patton-Imani’s historical exploration is unique in that it is built on over one hundred ethnographic interviews with African American, Latina, Native American, Asian American, and white lesbian mothers living in different states, in a range of socioeconomic circumstances, all of whom were in the process of building their families during this time period. Through these women’s narratives, we learn of the varied ways through which they formed their families, faced their daily challenges, and struggled to protect their family relationships and to gain benefits and rights that heteronormative families routinely enjoy.

Thus, for example, the book presents different stories of family-making through adoption that include relative adoption, transracial adoption, and transnational adoption. Kelly and Sam, a white middle-class couple, share the discomfort they felt at a Santa Clara County Child Welfare recruitment booth at San Jose Pride, where social workers identified certain children as “low risk,” meaning that because their birth parents—most often single mothers—were unlikely to be able to regain custody, the children were “free” for adoption. This “neo liberal consumer logic” and terminology drove Kelly and Sam to forgo adoption through the foster care system and to resume their fertility treatments (which they could afford given their economic status). (Pp. 131-32.)

Mischa and Kimberly, another white middle-class couple, share the difficulties of bonding with foster children they hoped to adopt but who returned to their biological parents, went to live with relatives, or moved to a different foster family in another jurisdiction. The couple eventually adopted transnationally (from Haiti and Cambodia) and they acknowledge with sensitivity that extreme poverty was the primary reason their children’s birth parents were unable to care for them. (Pp. 99-101.)

Betty and Edna, a working-class Hispanic couple, tell a very different story of family-making through adoption. This couple adopted two children born extramaritally to Betty’s niece. After the niece relinquished the first child for adoption, Betty and Edna struggled financially to complete the formal adoption process, with the result that only Betty legally adopted the child. When Betty’s niece gave birth to another child a few years later, the child was placed in a foster home with a white, heterosexual, middle-class married couple before Betty and Edna arrived at the hospital. It took two months of wrangling with welfare authorities for the couple to obtain custody of the child. Again, only Betty legally adopted the child due to financial constraints. (Pp. 186-88.)

These stories provide compelling accounts of power inequalities as well as significant gaps in the protections available for certain families as a result of socioeconomic status, race and ethnicity, and gender, and especially the intersection of these factors. Yet, Patton-Imani emphasizes that none of these personal stories should be considered “representative.” Rather, she offers the stories as allegories, that is, as normative lenses through which larger sociopolitical narratives can be critically scrutinized.

Patton-Imani’s study makes powerful use of metaphor. A notable example is when she likens her interviewees’ families to grafted trees to illustrate the mothers’ inescapable engagement with prevailing templates for legitimate and normative families. The grafting process joins two or more plants into one and provides a strong metaphor for the interplay among biology, genetics, and nurture. Once the shoot of one tree is grafted onto the rootstock of another, it is nurtured by the rootstock, and the resulting fruit reflects the contributions of both original plants. As Patton-Imani emphasizes, however, the power of the grafted tree metaphor is that it not only illustrates the combination of plant genetics and nurturing to produce fruit, it also draws attention to the power that is involved in grafting. In the words of Patton-Imani: “Whose hand splices the branches and ties them together? Whose social vision shapes the planting and care of the orchard? Who waters and cares for fragile young shoots?” (P. 77.) “[S]tories about grafted trees make power relations visible, allowing us to see whose stories are excised from legitimate history, and how that sleight- of- hand is accomplished.” (P. 248.) Sometimes the exercise of power is easy to detect, such as when the state’s welfare system removes children from their birth parents and places them in foster care or adoption. In other instances, less palpable societal forces influence family-making in unseen ways that may lead, for example, to a scarcity of sperm donors of color – a scarcity noted by some of the interviewed mothers who were interested in such sperm.

The mothers’ narratives, as woven together and analyzed by Patton-Imani, reveal that at each crossroads in the brief and spotty history since the 1990’s, the road taken provided openings for more privileged LGBTQ families (whether through whiteness or economic status). Poor lesbian mothers of color were left behind, just as they had been left behind in the past: it is not only the most recent marriage-centered turn of the road in Obergefell that disadvantaged poor and non-white LGBTQ families.

Patton-Imani’s historical narrative-based exploration forces us to think about the roads not taken, the intersecting side roads of welfare, immigration, adoption, and marginalized families, from the 1990’s through Obergefell, whether at the local, state, or federal level. These alternative roads might have been more diverse, more inclusive, and addressed structural and economic barriers rather than offering more “choice,” which disadvantaged families often lack the financial means to exercise.

In identifying the roads not taken, Patton-Imani does not offer any specific legal path for change or concrete policy suggestions; she leaves that to us, legal scholars and activists. She does mark the desired end of the road, which is to secure the rights and interests of those most disadvantaged. She also suggests that building coalitions among the marginalized is the approach to take. Here, too, she uses trees as a metaphor, this time invoking redwoods, which enjoy majestic size and longevity despite their relatively shallow roots. It is the roots’ lateral expansion and interconnection that creates a common root system that supports them all and sustains them even during a storm.

  1. 576 U.S. 644 (2015).
Cite as: Ayelet Blecher-Prigat, The Roads Not Taken in the Forest of Family Trees, JOTWELL (May 25, 2021) (reviewing Sandra Patton-Imani, Queering Family Trees: Race, Reproductive Justice, and Lesbian Motherhood (2020)),

Restating the Law of Nonmarital Contracts

Albertina Antognini, Nonmarital Contracts, 73 Stan. L. Rev. 67 (2021).

Millions of Americans are in cohabiting relationships marked by varying degrees of intimacy and dependency. Although at least some of these relationships are functionally similar to marriage, the law has had a limited role in regulating them. Nonmarital partners are ineligible for benefits like family leave, Social Security, favorable tax treatment, and more. Moreover, marital property rules do not apply to them, meaning that economically vulnerable partners may find themselves with nothing at the relationship’s end. In most states, one legal tool available to nonmarital partners is contract. Since the California Supreme Court’s Marvin v. Marvin decision over forty years ago, the vast majority of jurisdictions have allowed partners in intimate relationships to enter into contracts governing property, as long as sex is not consideration for the contract. The problem, most scholars observe, is that the vast majority of couples either do not bother to make agreements in the first place or do not express them in the form of a concrete exchange. Taking courts at their word, scholars assume that courts will enforce nonmarital contracts when they find them.

Albertina Antognini’s latest article, Nonmarital Contracts, disrupts this account. Through a painstakingly detailed examination of the entire universe of cases involving express contracts between nonmarital partners, Antognini shows that courts very rarely enforce agreements between opposite-sex partners exchanging domestic labor for money or other property, the very type of exchange that Marvin theoretically greenlighted. Thus, contract fails to make much of an impact, but for a different reason than is commonly assumed: the very courts that proclaim a right to contract in theory decline to enforce them in reality.

Antognini’s analysis is based on a universe of approximately 120 reported cases that involve claims between nonmarital partners based on an express contract, culled from an initial sample of thousands of false positives.1 The relatively small number of cases allows Antognini to engage every single one without cherry-picking. And indeed, they cannot all be harmonized, a fact that ultimately contributes to a richer set of insights.

Antognini identifies two notable fault lines in this body of cases. First, courts are much more likely to enforce claims between opposite-sex partners predicated on the exchange of property; claims based on domestic services are rarely enforced. Second, contract claims between same-sex couples, many of which involve domestic services, fare quite well in comparison to contract claims between opposite-sex couples.

Courts provide various reasons not to enforce contracts involving domestic services. Some courts struggle to disentangle domestic services from the sexual nature of the relationship, treating the services as an extension of the sex that is also taking place. Some courts presume that the party performing the domestic services offered them out of love and affection, or simply performed them as part of the give-and-take of the relationship, rendering them gratuitous. Other courts find promises to support or take care of the partner providing the domestic services too vague to be enforced.

Not all claims fare so poorly, however. These same concerns—of intertwined sexual services, gratuitousness, or vagueness—are not present when the one partner brings a claim based on tangible property like earnings, shared expenses, or rent. Antognini shows that when partners attempt to recover their share of money spent maintaining the household, or for financial contributions to property that the partners shared during the course of the relationship, courts have easily set aside the sexual nature of their relationships.

Courts have also been much more willing to enforce contracts involving domestic services between same-sex couples. A common assumption in that context is that the parties turned to contract because of their inability to marry, and thus their intentions should be honored (which leads one to wonder whether future claims brought by same-sex partners who could have married will face greater resistance).2

This descriptive work suggests that many scholars have been too quick to take the courts at their word, and perhaps too sanguine about the availability of contract law as a tool to define the legal parameters of nonmarital relationships. Yes, contract law allows partners to exchange property for property, but it renders much of the work that goes on in a relationship—work traditionally performed by women—market-inalienable. From this state of affairs, Antognini draws several compelling insights. She sees in the devaluation of domestic work a preservation of coverture in contract. Within marriage, contract doctrine prevents wives from entering into agreements regarding domestic services, effectively ensuring that any labor they perform within the home will be for the benefit of others. (Pp. 93-94.) But contract doctrine, as reflected in the decisions involving nonmarital partners, extends these effects to people outside of marriage, further articulating the divide between the market and the family. As Antognini puts it, “status is still driving these decisions—in that courts are making judgments about the nature of intimate relationships based on the content supplied by marriage—and limiting contract accordingly.” (Pp. 142-43.) Indeed, based on Antognini’s comprehensive description of the case law, it is hard to unsee the role that marriage plays in determining the types of contract terms that courts will enforce.3

Antognini argues that the status quo is unacceptable because, “in addition to being confused and contradictory, . . . courts are concealing judgments about relationships behind the guise of contract.” (P. 145.) Thus, she pushes courts and scholars to choose between two options for reform: stating clearly that contract is not available for domestic services or ensuring that parties are actually able to contract for home labor. The first option has the benefit of clarity and would allow partners to arrange their legal relations based on the law as it actually operates. However, it would perpetuate “the inequities imposed on the homemaker and the devaluation imposed on homemaking.” (P. 147.) Enabling partners to contract for household work, in contrast, would provide a mechanism to value such work, bridging the spheres of the home and the market.

It’s difficult to imagine a world in which domestic labor has some sort of compensable value, which probably goes a long way to explaining the judicial decisions that Antognini critiques. Spouses do not typically provide an accounting of the different tasks they perform, and courts are not accustomed to assigning market rates to those tasks, nor answering questions like why childcare might be worth a certain amount to an average-earning spouse but much more to a high-earning spouse. And as Antognini points out, it is difficult to imagine a contract law that does not interpret the parties’ commitments through the lens of what courts deem to be objectively reasonable, a lens that will be skewed by the judiciary’s own assumptions about the value and content of marriage. Even for open-minded judges, the pull of marriage will be hard to escape. Left to their own devices, partners themselves structure their relationships unimaginatively. That most partners in the cases at bar simply try to recreate marital-like arrangements (unenforceable) or engage in specific transactions related to joint financial contributions (enforceable) seems to follow predictably from a lack of other options. This suggests, as Antognini herself admits, that merely enforcing more contracts between nonmarital partners will not necessarily result in widespread change.

One article cannot possibly address all of the implications that follow from the realization that the law of nonmarital contracts is not what courts have said it is. In Nonmarital Contracts, Antognini provides plenty of food for thought, raising tantalizing questions that beg answers. Scholars of nonmarriage will surely be contending with the issues Antognini has raised for quite some time.

  1. Antognini excludes claims based on implied contracts, which one assumes would be treated with even more skepticism by the courts, as well as cases arising after the death of one of the partners.
  2. All of the cases except one were decided before same-sex marriage was legal within the relevant jurisdiction, and in that exceptional case, the relevant conduct occurred before legalization. See Appendices B.1-4.
  3. That same-sex couples were clearly not “marriage material” before the legalization of same-sex marriage saved their contracts from the same fate as opposite-sex couples’ agreements. Yet marriage was still shaping contract—by allowing those agreements to be enforced—in its absence.
Cite as: Kaiponanea Matsumura, Restating the Law of Nonmarital Contracts, JOTWELL (April 27, 2021) (reviewing Albertina Antognini, Nonmarital Contracts, 73 Stan. L. Rev. 67 (2021)),

The Shadow of Abortion

Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harvard L. Rev. 308 (2020).

In her insightful Comment on June Medical Services L.L.C. v. Russo1 in the Harvard Law Review’s Supreme Court Issue, Professor Melissa Murray uncovers the “complicated and constitutive relationship between the Court’s approach to stare decisis and its abortion-related jurisprudence.” (P. 312.) She shows not only that stare decisis principles structure the Court’s abortion jurisprudence, but also that conflict over the abortion right shapes the Court’s approach to stare decisis. In this sense, Murray persuasively demonstrates how abortion casts a long shadow over other bodies of law, not least of which is the trans-substantive question of stare decisis.

Murray’s perspective invites us to appreciate how the abortion conflict provides a template for other struggles, both inside and outside the courts. Without saying so explicitly, her analysis helps us to make sense of ongoing contestation over the meaning and reach of Obergefell v. Hodges,2 the Supreme Court’s 2015 landmark decision recognizing same-sex couples’ constitutional right to marry. Even as same-sex couples exercise the right to marry nationwide, opponents of LGBTQ equality are seeking to narrow and limit the decision’s reach—without asking the Court to expressly overrule it. They rely, often expressly, on the campaign against abortion rights as a model.

Murray analyzes how the Court’s abortion decisions—including most prominently Planned Parenthood of Southeastern Pennsylvania v. Casey­3—constitute “precedent on precedent” (P. 329.) These decisions “shadow all of the Court’s efforts to define and observe the requirements of stare decisis.” (P. 312.) More importantly, they furnish “a blueprint for narrowing, limiting, and eventually overturning earlier precedents.” (p. 330)—a dynamic she terms “transformation-through-preservation,” in a play on Professor Reva Siegel’s famous preservation-through-transformation concept.4 (P. 335.)

Murray extensively documents this blueprint in action in a number of doctrinal areas, ranging from the Establishment Clause to the Sixth Amendment, from campaign finance reform to labor law. In the examples on which Murray focuses, abortion jurisprudence “provides a template for undermining—and overruling—precedent.” (P. 337.) And yet, in the abortion context itself, Roe v. Wade5 remains good law. That is, the very body of law that has supplied the interpretive tools to overturn precedent in other areas continues to withstand attempts at overruling. In this sense, abortion jurisprudence also provides a blueprint for limiting protected rights without overruling precedent. It is here that the abortion struggle supplies a template for conflict over the rights of same-sex couples.

The hollowing-out of Roe has been documented by countless scholars and commentators. In Casey, the Court affirmed Roe as precedent but also reformulated the standard of review in ways that weakened the abortion right. As Murray argues, “by authorizing states to legislate abortion rights out of existence, Casey overruled much of Roe’s substance, substantially curtailing access to abortion for most women.” (P. 315.) In Gonzales v. Carhart,6 the Court upheld ­­­­­the federal Partial Birth Abortion Act without expressly repudiating the precedential status of Roe, Casey, or Stenberg v. Carhart, an earlier decision striking down a similar state law.7 As Justice Ginsburg observed in dissent, Gonzales paid lip service to principles of stare decisis as it “chip[ped] away at a right declared again and again by this Court.”8

June Medical stands as the latest example in this long line of decisions. The Court struck down a Louisiana law effectively the same as the Texas law the Court had struck down just four years earlier in Whole Woman’s Health v. Hellerstedt.9 Of course, the Court’s composition had changed in the intervening period. Chief Justice Roberts, who had dissented in Whole Woman’s Health, now provided the fifth vote to strike down the Louisiana law in June Medical. The four-justice plurality analyzed the law under the same standard articulated by the majority in Whole Woman’s Health—weighing the law’s purported health benefits against the burdens the law imposed on women seeking abortion. Concurring in the result based on principles of stare decisis, Chief Justice Roberts rejected the “balancing” approach adopted by the plurality and the Whole Woman’s Health Court. As Murray contends, “Chief Justice Roberts took a dual-pronged approach—reaffirming Whole Woman’s Health for the purpose of distinguishing it and, in the process, implicitly overruling it.” (P. 325.) As importantly, while professing loyalty to Casey, he further restricted the meaning of that landmark decision.

This strategy is frightening not only for proponents of abortion rights but also for proponents of other rights relating to sexuality, reproduction, and the family. Will the abortion decisions provide a model for limiting the rights of same-sex couples without overruling Obergefell?

In the wake of Obergefell, Arkansas refused to issue birth certificates to married same-sex couples listing both women as parents of the child, even though the state listed both spouses as parents in married different-sex couples, regardless of whether the husband was the child’s biological father. In 2017, the Court in Pavan v. Smith rejected Arkansas’s narrow reading of Obergefell.10 This was clearly the right result. Obergefell itself included “birth . . . certificates” as one of the critical “government benefits” that states “confer on all married couples.” Yet, the Pavan decision was not unanimous. Justices Gorsuch, Alito, and Thomas dissented, expressing sympathy for the state’s attempt not simply to narrow but contravene precedent, reasoning that “nothing in Obergefell indicates that a birth registration regime based on biology . . . offends the Constitution.”

Those seeking to undermine Obergefell have not given up. In 2020, they raised the question again, this time by virtue of Indiana’s refusal to issue birth certificates listing both women in a married same-sex couple as parents. The Court denied cert. in Box v. Henderson. But opponents of same-sex marriage will continue to raise questions of birth registration and parentage that implicate the meaning of Obergefell. Here, key abortion decisions provide a model, illustrating how to simultaneously profess loyalty to and undermine a landmark precedent.

Conflicts over religious exemptions from antidiscrimination mandates also invite judicial attempts to limit the reach of Obergefell. This term, in Fulton v. City of Philadelphia, the Court is considering whether a Catholic social services agency has a right to a city contract for child-placing services even though the agency refuses to abide by the city’s nondiscrimination requirements. The agency contends that its religious view of marriage prohibits it from licensing same-sex couples as foster parents. This case, one of many of its kind, threatens to deprive married same-sex couples of rights that married different-sex couples take for granted.

Disputes over parentage and religious exemptions do not exhaust the cases seeking to limit Obergefell. Consider, for example, the years-long challenge to Houston’s extension of benefits to the same-sex spouses of city employees. The marriage right secured by Obergefell would mean very little if the government could withhold benefits from same-sex spouses that it furnishes to different-sex spouses. And yet cases of this kind have persisted.

Up to this point, the Court has stopped short of restricting Obergefell in ways that mirror the abortion struggle. But opponents of LGBTQ equality continue to press their cause and do so with a seemingly more hospitable Court.

This strategy of limiting—neutering, in Murray’s words (p. 317)—precedent without overruling appears more palatable to the Court when the substantive issue raised is one that has inspired longstanding, fierce, and ongoing society-wide debate. As Murray observes, “overruling [Roe] would invariably expose the Court to claims of partisanship and political opportunism.  And this, in turn, helps explain why the abortion right has, over time, become increasingly narrow.” (P. 349.)

From the perspective of the democratic legitimacy of our constitutional order, this seems upside down. What does the ordinary citizen think when a decision like June Medical comes down? “The Supreme Court Just Ruled 5-4 to Protect Abortion Rights,” a headline read at the time. Is there any indication that, as Murray explains, the Chief Justice’s “selective approach to stare decisis transformed the meaning—and precedential value—of Whole Woman’s Health, as well as the standards by which abortion restrictions will be judged going forward”? (P. 312.) As Reva Siegel puts it in a forthcoming article on June Medical, “It is one thing to reverse Roe and Casey; it is another to pursue that aim through forms of rational basis.”11

The same fear exists in the LGBTQ context. While the increasingly conservative composition of the Court has led some to worry about Obergefell’s overruling, the more real concern is that the Court will chip away at Obergefell—limiting not only its precise protections (such as “the constellation of benefits that the States have linked to marriage”) but also its loftier commitments to protect LGBTQ people from laws that “serve[] to disrespect and subordinate them.” With abortion jurisprudence as a blueprint, it may do so without ever provoking headlines that alert citizens to the deprivation of rights at stake. In this sense, practices of stare decisis being forged by justices hostile to abortion rights pose a profound crisis—not only for the citizens who depend on the rights being adjudicated, but also for the legitimacy of constitutional adjudication in our democracy.

  1. 140 S. Ct. 2103 (2020).
  2. 576 U.S. 644 (2015).
  3. 505 U.S. 833 (1992).
  4. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111 (1997).
  5. 410 U.S. 113 (1973).
  6. 550 U.S. 124 (2007).
  7. 530 U.S. 914 (2000).
  8. 550 U.S. at 191.
  9. 136 S. Ct. 2292 (2016).
  10. 137 S. Ct. 2075 (2017).
  11. Reva B. Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 Sup. Ct. Rev. (forthcoming 2021) (manuscript at *41).
Cite as: Douglas NeJaime, The Shadow of Abortion, JOTWELL (April 12, 2021) (reviewing Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harvard L. Rev. 308 (2020)),

A Ringing Endorsement of Lawyers, and the Most Important Development in Child Protection Law

Lucas A. Gerber, et al., Understanding the effects of an interdisciplinary approach to parental representation in child welfare, 116 Child. & Youth Serv. Rev. 105163 (2020), available at SSRN.

Two empirical studies demonstrating the impact of vigorous family defense legal work on child protection cases bookended the 2010s.  In 2012, Mark Courtney and Jennifer Hook found that cases in which a specialized interdisciplinary law office (ILO) represented parents had faster reunifications, guardianships, and adoptions than similar cases with different parental representation, though it did not explore how those results were obtained.1  In 2019, Lucas Gerber, Yuk Pang, Timothy Ross, Martin Guggenheim, Peter Pecora, and Joel Miller found that, compared to solo and small office practitioners, ILOs in New York City hastened reunification and guardianships for their clients, leading to 118 fewer days in foster care per child on average, without any negative child safety outcomes.2

The New York City study also led to a 2020 qualitative study3 offering insight into what made these specialized ILOs so impactful and helping define what makes for high-quality parent representation (known as “family defense”). The answer: traditional lawyering, done aggressively and in collaboration with an interdisciplinary team.

Gerber et al. compared cases handled by interdisciplinary law offices where lawyers specialized in family defense and collaborated with staff social workers and parent advocates with similar cases handled by solo and small office practitioners who generally had much experience but lacked the ILOs’ non-lawyer supports. After documenting the empirical differences in 2019, they interviewed parents who had a child protection case filed against them, lawyers from both models of family defense, lawyers for other parties in these cases, and judges, designed to measure what ILO attorneys did differently from solo and small office practitioners. The ILO lawyers demanded more formal procedures for their clients, pushing back against an ethos that downplayed the need for such advocacy – an ethos that commentators have long observed in family courts.4 ILO lawyers advocated more aggressively, filing more motions and insisting upon more evidentiary hearings than other lawyers.  In addition, ILO lawyers better met basic hallmarks of quality legal representation – especially frequent client contact and preparation for all court hearings.

ILO lawyers also leveraged their interdisciplinary teams, which represented clients in out-of-court case conferences and then helped clients find the services they need to follow these plans and regain custody of their children. Notably, Gerber et al. describe even this social work in terms which made clear their status on their clients’ team. Non-lawyer members of the team advocated for clients at case conferences with agency representatives, ensuring case plans were individualized and not more burdensome than necessary. When they helped clients obtain social services, they empowered clients to find services they want and free themselves of dependency on CPS agencies.

What to take from the 2020 qualitative study? First, Gerber et al. offer a ringing endorsement of lawyers acting in their adversary role as essential to the rule of law and functioning of any legal system, even one (like family courts) historically designed to operate less adversarially. This study throws cold water on the notion that traditional lawyering prevents systems from doing what they need to do. (Indeed, the authors report the views of some child protection agency attorneys that vigorous family defense merely slows the process down through unnecessary litigation.) The 2019 study empirically rejected this view, and the 2020 follow-on contribution explains how strong adversarial lawyering helps family courts act with greater accuracy and with limiting interventions into individual liberty.

Second, and more pointed to the next decade of work in the child protection system, the 2020 study takes a significant step toward defining the elements of high-quality family defense. America’s patchwork of state and local family defense systems now can consider how to use newly-provided federal assistance to expand or improve with a guide for what a model system looks like. That guidance is essential because family defense systems generally fall far short of the standard set by New York City ILOs. In South Carolina, where I teach, no such offices exist, and authorities are just figuring out how to ensure parents have attorneys to represent them at court hearings held days after a child is removed, and most of the nation’s family defense systems resemble South Carolina’s rather than New York City’s.

Defining high-quality family defense is particularly important now. In 2019, in perhaps the most important child protection legal development in the past decade or longer, the federal Children’s Bureau opened federal foster care funding to support the provision of legal representation and advocacy for parents.5 That dramatically expanded funding for legal services – which have largely depended on meager state and local funding – provides states the opportunity to improve their family defense models.

This opportunity begs the question – how should states improve their family defense systems? How much must those systems improve to get comparable results to those found in the New York City studies? Must they get all the way to the NYC ILOs, or is some intermediate step sufficient? The best way to answer this is through more quantitative and qualitative research in more jurisdictions like what Gerber et al. have done.

  1. Mark E. Courtney & Jennifer L. Hook, Evaluation of the impact of enhanced parental legal representation on the timing of permanency outcomes for children in foster care, 34 Child. & Youth Services Rev. 1337 (2012).
  2. Lucas A. Gerber, et al., Effects of an interdisciplinary approach to parental representation in child welfare, 102 Child. & Youth Services Rev. 42 (2019).
  3. The full list of authors for the 2020 contribution is Lucas A. Gerber, Martin Guggenheim, Yuk C. Pang, Timothy Ross, Yana Mayevskaya, Susan Jacobs, and Peter J. Pecora.
  4. E.g. Melissa L. Breger, Making Waves or Keeping the Calm?: Analyzing the Institutional culture of Family Courts Through the Lens of Social Psychology Groupthink Theory, 34 Law & Psych. Rev. 55 (2010); Amy Sinden, “Why Won’t Mom Cooperate?”: A Critique of Informality in Child Welfare Proceedings, 11 Yale J.L. & Feminism 339 (1999).
  5. In this season of political transition, it is worth noting that this federal funding for family defense came from the Trump Administration – and that this is one area where the Biden Administration should continue changes enacted by its predecessor.
Cite as: Josh Gupta-Kagan, A Ringing Endorsement of Lawyers, and the Most Important Development in Child Protection Law, JOTWELL (March 26, 2021) (reviewing Lucas A. Gerber, et al., Understanding the effects of an interdisciplinary approach to parental representation in child welfare, 116 Child. & Youth Serv. Rev. 105163 (2020), available at SSRN),

A Radical, Subaltern Chorus: Saidiya Hartman’s Album of Rebellious Young Black Women

Saidiya Hartman opens her powerful and lyrical Wayward Lives, Beautiful Experiments: Intimate Histories of Social Upheaval with an epigraph from Harlem Renaissance author Nella Larsen’s Quicksand: “She was, she knew, in a queer indefinite way, a disturbing factor.” As I read Hartman’s brilliant narrative recreation of the voices, words, and intimate lives of “young black women,” at the turn of the twentieth century, as they sought “to create autonomous and beautiful lives, to escape the new forms of servitude awaiting them, and to live as if they were free” (P. xiii), another Harlem Renaissance novel came to mind: Jessie Redmon Fauset’s Plum Bun: A Novel Without a Moral (1929). The desire to live free also preoccupies Angela Murray, the young Black woman whose own intimate history and experiments in living are at the center of Plum Bun. While Murray has more economic and family resources and class privilege than the young Black women whose lives Hartman makes palpably and poignantly real to readers, this fictional heroine and these women alike perceive the bar that “the color line” poses—at every turn— to living “as if” free. “Freedom!” is the most frequent “note” in the “melody of living” of which Angela dreams, and she perceives that “[c]olour or rather the lack of it seemed . . . the one absolute prerequisite” to that dream life and to the “difference between freedom and fetters.” (Fauset 13, 137.)

The “fetters” created by the color line’s racial caste system constrain yet fuel the subjects of Hartman’s narrative: young Black women on a quest to rebel and “live free” in the decades between 1890 and 1935, in New York City and Philadelphia. To construct her dazzling portraits of those “wayward” lives, Hartman uses a method of “close narration” by attempting to “inhabit the intimate dimensions” of those lives and place “the voice of narrator and character in inseparable relation.” (Hartman, P. xiii) She draws on “a vast range of archival materials” to “convey the sensory experience of the city and to capture the rich landscape of black social life.” Such archival sources treat these young women as “a problem,” and include “the journals of rent collectors; surveys and monographs of sociologists; trial transcripts; slum photographs; reports of vice investigators, social workers, and parole officers; interviews with psychiatrists and psychologists; and prison case files.” (P. xiv.) Countering that diagnosis, Hartman insists on the beauty of these experiments in trying to live free, arguing that these “young black women in open rebellion” show “utopian longings” and provide “an intimate chronicle of black radicalism;” such radicalism included “free” motherhood, intimate partnerships outside of marriage, and “queer and outlaw passions.” (P. xv.) As the archives reveal, the regulatory apparatus of governmental and quasi-governmental officials labelled and punished these young Black women for their supposed deviance from marital, gender, and sexual norms.

The expansive use of the police power to protect public morals is particularly sobering. For example, under the Tenement House Law, young Black women were surveilled and arrested “as vagrants and prostitutes” simply on a police officer’s testimony. (P. 249.) A prostitution charge could follow a young woman inviting a man into her home for a drink. Given the police invasion of Black homes in 2020, it is chillingly resonant to read of the disrespect a century ago for Black homes as private spaces: in a “jump raid,” plainclothes officers, “having identified a suspicious person and place, knocked at the door of a private residence, and when it opened, they forced their way across the threshold or they followed behind a woman as she entered to her apartment.” (P. 252.) Hartman recounts that Elinora Harris (the future Billie Holiday) and her mother were arrested in a neighborhood sweep. (P. 252.) “Walking while black” had its counterpart in the 1920s, when, as Holiday recalled, women like her mother, employed as maids or office cleaners, “were picked up on the street on their way home from work and charged with prostitution.” (P. 254.)

Hartman compellingly describes the “incredible ferocity” of this “state surveillance and police power” as “the afterlife of slavery.” (P. 256.) The young women targeted by this regulatory power perceived that such law was “designed to keep them in place,” even as they “refused to live in its clauses and parentheses.” (P. 256.) The consequences of this regulatory power fell most harshly on Black female minors: an adult woman convicted of prostitution might be sentenced to 60 days at the workhouse, but, under the Wayward Minors Act, “a girl convicted as a wayward minor might receive an indeterminate sentence of three years” at a reformatory. (P. 223.)

Racism and sexism intertwined in the application of such status offense laws: between 1882-1925, “only young women were adjudged wayward under” wayward minor laws, and Black girls were “more likely to be punished and . . . punished more harshly” than white girls. Thus, “state racism exacerbated the reach” of such laws, “marking blackness as disorderly and criminal.” (P. 225.) Hartman’s empathetic reconstruction of the desires and interrupted lives of these “wayward” girls — subject to the “civil death” of confinement in racially segregated and brutal reformatories (P. 264)— offers a valuable counterpoint to portrayals of Progressive-era efforts around juvenile justice, with the (unrealized) ideal of a prototypical wayward (white) boy in need of the counsel of a kindly judge.

As a family law scholar, I found sobering how Progressive-era social reformers in Northern cities viewed maintaining segregation and preventing “interracial intimacy or even proximity” as necessary for public health and morals: “the Girl problem and the Negro problem reared their heads” together, finding “a common target in the sexual freedom of young women.” (P. 20.) Further, vice commissions diagnosed interracial association as “disorderly” even when the purpose was “to undo the color line.” (P. 249.)

The book is a tour de force in its richly and vividly imagined narratives, which allow these young Black women hitherto “credited with nothing” and “deemed unfit for history” to emerge with agency and vision—as “radical thinkers who tirelessly imagined other ways to live and never failed to consider how the world might be otherwise.” (P. xv.) Part of that quest, Hartman persuasively shows, is the desire for aesthetic beauty and pleasure. As Professor Eddie Bruce-Jones observes, in showing “why beauty is a vital component of the narrative,” Hartman has also “created a beautiful experiment of her own.”

“The beauty of the chorus” is a phrase Hartman uses skillfully to portray the goals of women like Mabel Hampton, who left domestic service – the expected employment for young Black women – to pursue romance and adventure through joining a chorus line and dancing in cabarets, where she could shake off (however briefly) the “assault of racism.” (P. 307.) Mabel’s intimate experiments in loving other women also dared to cross the color line. Hartman places Mabel amidst a “glamorous world” of other Black women, such as Gladys Bentley, Jackie Mabley, and Ethel Waters, whose artistic lives defied gender and sexuality conventions. Mabel’s chorus line did not lead to the concert career she sought; instead, in middle age, Mabel faced the fate she evaded as a teen: entering the “Bronx slave market” for day laborers, “settled on a crate among the group of domestics as they waited for housewives from Yonkers and Westchester.” (P. 343.)

Hartman closes by envisioning a chorus of the many young women whose voices need to be heard, whose stories are terrible and beautiful, and who “transform[] the terms of the possible.” (P. 349.) The Greek etymology of “chorus,” Hartman observes, is to “dance within an enclosure.” This image of “acts of collaboration and improvisation that unfold within the space of enclosure” well conveys “the long history of struggle, the ceaseless practice of black radicalism and refusal,” and “the tumult and upheaval of open rebellion.” The chorus, with its many songs asking how to live free, “propels transformation” and is “an incubator of possibility.” This chorus so vividly presented by Hartman offers a rich resource for legal scholars seeking to expand the canon to include missing and marginalized voices in a way attentive to the intersection of race and gender discrimination. At a time when legal scholars and teachers are seeking to make antiracism and reckoning with systemic racism more central to their pedagogy and writing, Hartman’s intricate reconstruction of this unrelenting apparatus and its harsh and unjust toll on the lives of young Black women is a powerful and sobering text.

Cite as: Linda C. McClain, A Radical, Subaltern Chorus: Saidiya Hartman’s Album of Rebellious Young Black Women, JOTWELL (February 26, 2021) (reviewing Saidiya Hartman, Wayward Lives, Beautiful Experiments: Intimate Histories of Social Upheaval (2019)),

Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts

Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020).

The literature on surrogacy regulation has recently taken a turn towards a more pragmatic understanding of the field. Scholars have attempted to describe surrogacy regulation as it already exists and analyze the different interests involved, under conditions of legal fragmentation and uncertainty.1 Rachel Rebouché’s Contracting Pregnancy is an important contribution in this vein.

The article contributes several advances to our knowledge of surrogacy contracts in action. First, Rebouché analyzes statutory developments alongside standard terms included in surrogacy contracts. Doing so allows her to notice a tension between the law on the books and the law in action. The newest statutes attempt to balance the interests of intended parents and surrogates, recognizing parentage for the former, while safeguarding the surrogate’s autonomy interests, by emphasizing that decisions about termination ultimately reside with the surrogate. Lawyers involved in the drafting process, however, regularly include language “that contradicts state efforts to level the playing field for parties.” (P. 1596.) Rebouché finds this recurrent tension between state statutes and contractual language in the areas of pre-pregnancy genetic testing, prenatal screening and testing, lifestyle decisions during pregnancy, and abortion. In other words, the contracts that lawyers draft regularly try to vest intended parents with decision-making power over these areas, against the backdrop of a statutory (and constitutional) framework that vests that authority on the surrogate.

The second contribution of the article is related to Rebouché’s attempt to understand how and why this gap occurs. Why do lawyers insist on including clauses that are likely unenforceable, either through specific performance or through damages? Rebouché pushes us to understand this practice in the context of the literature on relational contracts, in which the negotiation and inclusion of certain clauses in a contract have value as a vehicle for obtaining valuable information about the other party and building trust between parties who will need to collaborate over a period of time if the arrangement is to succeed. (P. 1631.) Noticing that surrogacy contracts may share characteristics with other types of contracts that create long-term relations and studying them under a regular contracts lens is a move against family law exceptionalism that is likely to contribute to more clarity about what this legal practice actually looks like on the ground.

A third contribution of the article is a detailed account of the role that healthcare professionals, lawyers, and surrogacy agents play in managing conflict between parties in a surrogacy contract. Rebouché’s analysis brings a legal sociological approach that is attentive to the multiplicity of incentives and motivations that may be present beyond profit, such as reputational integrity and ethics, at different stages of the process. One of the more interesting observations is that the balance of power between intended parents and surrogates shifts at different points in the process, with the surrogate gaining more of it as a pregnancy takes hold. The fertility agencies and the lawyers often associated with the agencies mediate to balance out these shifts in power, in order to maximize the chances that the arrangement will not devolve into a conflict. This often means keeping the intended parents’ micromanagement of the surrogate under control and safeguarding the surrogate’s autonomy, while maximizing the chances that the surrogate will actually collaborate with obligations she signed up for, even if unenforceable, such as waiving her medical confidentiality in order to allow access to pregnancy information for the intended parents.

Despite the observation that the vast majority of surrogacy arrangements don’t seem to devolve into a court battle, Rebouché remains troubled by the role of professional intermediaries, calling for more transparency about the process these professionals use to balance the shifting power dynamics in the relationship. In this vein, her suggestion that perhaps structuring fertility agencies as non-profits with a right to receive compensation for their services is an interesting one that calls for more examination, perhaps in future work.

Rebouché also cautions about the pitfalls of genetic tests in the context of surrogacy. She focuses on non-invasive prenatal testing (or NIPT), which currently detects big genetic abnormalities, such as a missing or an extra gene, through a blood test in the first trimester. The test is likely to be further developed in the future to reveal detailed genetic information, creating possibilities of termination on the basis of preferred traits rather than seriously debilitating illnesses or conditions. Rebouché suggests that the bioethical concerns on the test might be even more troubling in the context of surrogacy. She notes: “[C]oncerns about the use of prenatal genetic testing when controlled or heavily influenced by intended parents might be exacerbated. An intended parent is not pregnant and does not make testing decisions as a pregnant person might, perhaps feeling distance between themselves and the pregnancy without the physical experience of gestation.” (P. 1619.)

Concerns about frivolous demands for testing, however, could be less, not more, acute in cases of surrogacy, especially if protracted infertility is the background. Even when the background is single people or gay couples attempting to become parents with a genetic link, the financial and emotional cost of the process and the very genetic essentialism that Rebouché cautions against could result in significant compunctions about frivolous demands on the surrogate’s bodily autonomy and perhaps more acceptance of a less than “perfect” genetic combination. After all, it may be easier to imagine there will be a next pregnancy at all if what it takes to get to a pregnancy is sex-rather than hiring a soccer team of professionals for the cost of a small house in a rural area. While it is uncertain which way this will actually cut, without more evidence, the assumption about surrogacy exacerbating these concerns may need more finetuning. Anecdotal evidence suggests that NIPT in the surrogacy process may lead to less, not more, pregnancy testing, and is especially useful in avoiding more invasive procedures such as amniocentesis, hence less pressure on the surrogate’s bodily autonomy.

Overall, the article opens up a rich vein of inquiry into surrogacy contracts that is bound to prove fruitful. One possible future theoretical investigation would be further formalizing the bargaining dynamics involved in negotiating, executing, and enforcing a surrogacy contract, by examining further, the actual fallback positions of each party involved. Another fruitful direction would be digging deeper into the analogies between surrogacy and other kinds of contracts, as well as other mechanisms for perhaps evening out the parties’ bargaining power borrowed from even further afield. Labor law anyone?

  1. See, e.g., Courtney G. Joslin, (Not) Just Surrogacy, __ Cal. L. Rev. __ (forthcoming 2021), available at SRRN and previously reviewed on Jotwell by Douglas NeJaime.
Cite as: Philomila Tsoukala, Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts, JOTWELL (January 26, 2021) (reviewing Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020)),

Borders as Burdens

B. Jessie Hill, The Geography of Abortion Rights, _ Geo. L.J. _ (forthcoming 2021), available at SSRN.

In The Geography of Abortion Rights, Professor B. Jessie Hill provides a novel, timely mapping of the “geographic dimension of abortion restrictions.” (P. 4.) Some restrictions rely on borders to serve as actual barriers, such as laws that attempt to restrict adults from transporting young people across state lines for abortion services. The effects of other laws, which force clinics to close, fix the borders of “abortion deserts” around which patients travel hundreds of miles to reach the nearest provider. Still other laws, such as medically-unnecessary ultrasounds, trespass bodily borders by requiring “visual and narrative mapping of physical spaces within the woman’s body.” (P. 5.)

In all and more of these examples, Hill argues that “regulating place is a way of subtly drawing lines of social exclusion and inclusion and re-inscribing social inequality.” (P. 6.) By this, she suggests that states, under the guise of protecting a patient’s health and safety, use law to demarcate borders that marginalize abortion care. The effects are uneven and regional, and the burdens of inaccessible care fall hardest on people who already find complying with state restrictions costly and difficult.

Hill spends a significant portion of the article analyzing state laws governing abortion facilities and providers that are designed to force clinics to close. As Hill explains, standalone clinics are the almost-sole providers of abortion in the country. Because of clinics’ isolation from health care generally, legislators easily can target abortion clinics through regulations that providers and clinics cannot and (in terms of patients’ health and safety) need not meet.

Mandating that providers obtain hospital admitting privileges, a restriction that has been at the center of two Supreme Court decisions, provides an example. Hill demonstrates that states typically defend regulation as neutral and apolitical; these laws do not ban abortion outright. Yet abortion rarely entails surgical intervention or necessitates a hospital bed, making privileges difficult if not impossible for most abortion providers to acquire.

As Hill highlights, the Supreme Court struck down Texas’s and Louisiana’s privileges requirements by concentrating on the lived consequences of law, particularly for rural and low income patients. The Court held that when clinics close, patients will have longer drives, more expense if pregnancy progresses, more logistical hurdles to overcome—like arranging childcare, time of work, transportation. A plurality of the Court raised similar concerns in the recent case, June Medical Services v. Russo. Even though five justices could not agree on the proper application of the undue burden test, both the judgment of the Court and Chief Justice Roberts’s concurrence concluded that a law that would shutter all but one clinic in Louisiana was an undue burden on the right to abortion.

Of course, courts have not uniformly struck down restrictions on providers and clinics. As Hill writes, “the line of causality [between the existence of onerous facility regulations and reduced abortion access] is not always obvious.” (P. 27.) One need only look to the dissent penned by Justice Alito in Whole Woman’s Health v. Hellerstedt, which argued that clinic closures are not the fault of a privileges requirement; instead, Texas’s clinic closures are tied to provider shortages and decreasing rates of abortion.

Hill responds to the problem of causality by reimagining the application of constitutional doctrines, such as the right to travel or state action. For example, laws forcing women to leave the state to exercise a constitutional right contravene, as Hill proposes, a right not to travel. The result, were courts to embrace such an approach, would be a constitutional guarantee for a minimum level of abortion access within state borders. But the willingness of courts to recognize such rights is also contingent on location: on the federal level, abortion rights depend on the district in which one files and the circuit that hears an appeal. And, as Hill notes, in a country where Roe is overturned and numerous states outlaw abortion, place becomes all the more important. In the near future, legal abortion rights could depend entirely on the states: half will permit abortion and just under half, concentrated in the south and Midwest, will probably ban abortion.

Constitutional challenges to abortion restrictions may go only so far in addressing the unequal distribution of abortion care because courts may be unable or unwilling to make geography matter less. In this regard, Hill might explore other avenues of delivering abortion services together with or beyond constitutional litigation.

The remote delivery of medication abortion, though far from a perfect solution, can help erase the stark lines that abortion restrictions draw and that future bans might impose. A physician licensed in a state (even if not physically present in that state) can counsel (online or over the telephone), prescribe, and, during the pandemic, mail pills to induce a medication abortion. Federal and state laws, however, have not made the expansion of remote care easy. Nineteen states, for example, require a physician to be present upon delivery of medication abortion. The FDA, through one of its safety protocols, requires patients to obtain the first drug in a medication abortion (mifepristone) in-person at the practice location of a certified provider. The rule effectively bars teleabortion, which is one reason why a federal district court suspended it for the duration of the COVID-19 national emergency.

A new administration could abandon the FDA requirement number of state legislatures already have expanded teleabortion within and across their borders. The challenge moving forward is building capacity for health care providers to prescribe and to deliver medication abortion over state lines. Place will still matter, but it could matter less with abortion-supportive policies and increased resources to help ensure access to abortion care.

That is to say, while constitutional arguments are important, political and legislative action may more immediately reconfigure the map of abortion access. And that is, ultimately, one of the central aims of Professor Hill’s article—upending borders to protect the right to abortion, an issue all the more important if the Supreme Court overturns Roe.

Cite as: Rachel Rebouché, Borders as Burdens, JOTWELL (November 17, 2020) (reviewing B. Jessie Hill, The Geography of Abortion Rights, _ Geo. L.J. _ (forthcoming 2021), available at SSRN),

Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes

Kaiponanea T. Matsumura, Breaking Down Status, 89 Wash. U. L. Rev. __ (forthcoming Jan. 2021), available at SSRN.

The COVID-19 pandemic has highlighted the precarity in which millions of people live in the United States. In his forthcoming article, Breaking Down Status, Kaiponanea T. Matsumura shows us how this precarity is intrinsically linked to the law’s inevitable (or perhaps willful) insistence on regulating important social, economic, and personal relationships through a status-based regulatory system. To discuss the obsolescence and ineffectiveness of this scheme and how it should be reformed to one in which status is defined independently from contract and adapted to the current social and legal landscape, Matsumura uses as a case study two statuses that are seldom thought today to be interrelated: worker classification and marital status.

This approach in and of itself is a great contribution to the scholarship of status. By taking this viewpoint, Matsumura is able to survey the typology of status. While dissecting the taxonomy of status, he establishes how the concept has been applied interchangeably to refer to interrelated legal and non-legal phenomena. This ambiguity has obscured the scholarly discussions about status-based regulation by selectively focusing on one of its aspects. As laid out in the article, this selective approach can be seen best in the social normative vis a vis legal effects critiques to Obergefell.

Yet, Matsumura has more in his hat than just a taxonomic study of status to enhance our understanding of its problems in our current regulatory scheme. After expanding on the undertheorized concept of status, Matsumura examines gig workers and non-marriages. By summarizing the transformation of romantic relationships (i.e. the rise on cohabitation and the corresponding decline in marriage) and in the market (i.e. the decline of the employer-employee relationship and the rise of non-long-term employees), the article shows how the regulation of marriage and employment have grown obsolete in light of the current social landscape. The lagging between how statuses are defined and how people have rearranged their relationships make existing legal approaches to statuses obsolete, resulting in an ineffective regulatory scheme. Its ineffectiveness is best epitomized by the remarks of a judge trying to apply employee regulations to Lyft’s gig workers by saying that it was like being “handed a square peg and asked to choose between two round holes.”

The square pegs are the current relationships workers established with their employers and the growing number of non-marital relationships. The round holes are the vestiges of the Blackstonian households. Matsumura explains how the status regulation of workers and non-marriages are, even after their many changes, still embedded in the regulation of master-servant and husband-wife relationships, respectively. This uncovering not only challenges our notions that the market and marriage have grown in opposite directions notwithstanding their common origin in the pater familias, but it also adds to the debunking of Henry James Sumner Maine’s long-held evolutionary wisdom that the law evolves from status to contract.

The article shows that any changes we have experienced in the regulation of status towards a contractual scheme by adding more customization power to the parties is always halted by the need to balance parties’ autonomy against lawmakers’ interests in regulating efficiently and addressing vulnerability. This inescapable reality of the conflicting interests between moving to contract to grant greater control to individuals over the legal consequences of their relationships and the lawmakers’ wishes to advance socio-political interests such as privatizing welfare, protecting parties with less bargaining power, and dictating the social meaning of the relationships themselves forces contracts to fold back into status.

Consequently, Matsumura questions the desirability of moving to a full contractual scheme and defends the theory that statuses, albeit inevitable, can be effective and powerful regulatory tools. Here, perhaps, lies the greatest contribution of the article. Matsumura invites us to look at the regulation through status independently from contract and proffers a multi-layer design to think of its reform.

He identifies three axes that in the status literature have been discussed and critiqued in isolation. The first axis (aggregation/disaggregation) addresses whether the bundle of legal consequences associated with a status are kept together or disentangled. The second axis (binarism/pluralism) focuses on the number of categories under which an individual could be classified. The final axis (boundary policing) deals with the entering and exiting of the status. In other words, its concerns are when and how to determine whether an individual falls within the status and how people transition in and out of their statuses.

With this taxonomy, Matsumura attempts to identify design questions to guide us in our reform efforts of romantic and work relationships (and beyond) which would not focus on a selective or single aspect of status. He invites us with these categories to find combinations to round the square peg or square the round holes so that we can disrupt our regulatory scheme.

This invitation resonated with me in multiple levels. First, as a proposer of abolishing marriage and using other proxies to regulate the granting of privileges and rights to families, including non-traditional families such as cohabiting couples, polyamorous units, and non-sexual families, I questioned myself about whether I have been engaging in selective critiques of statuses or whether I have been really re-thinking marital status outside the Blackstonian household in a comprehensive way. It also invited me to rethink in more detail the third relationship of the Blackstonian household, that of the father and the children, and how we can disrupt its status regulation.

I am sure reading Matsumura’s article will invite similar and more profound reflections from family law scholars and authors in other areas. But most importantly, it will be a great departing point for rethinking how we regulate essential social, economic, and personal relationships to construct a more egalitarian world.

Editor’s Notes: For another review of this article, also published today, see Brian Bix, A Status Breakdown, JOTWELL (November 3, 2020).

Also, please note that Jotwell’s Contributing Editors make their own selections as to what to review; review topics are not assigned by the Section Editors.

Cite as: Aníbal Rosario-Lebrón, Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes, JOTWELL (November 3, 2020) (reviewing Kaiponanea T. Matsumura, Breaking Down Status, 89 Wash. U. L. Rev. __ (forthcoming Jan. 2021), available at SSRN),

A Status Breakdown

Kaiponanea T. Matsumura, Breaking Down Status, __ Wash. U. L.R. __ (forthcoming 2021), available at SSRN.

One of the hottest topics in family scholarship today is the proper legal treatment of unmarried cohabiting couples. Of course, it is hardly a new topic: it has been a center of controversy at least since the Marvin v. Marvin decision almost 45 years ago. On one side, it has been argued that giving unmarried couples marriage-like rights (equitable division of property at the end of the relationship or a claim for something like alimony) would undermine the public policy favoring marriage, while also not respecting the autonomy of those who declined to marry precisely to avoid such obligations. On the other side, refusing any marriage-like rights to long-term unmarried cohabitants would arguably fail to protect vulnerable parties (in particular, those partners, usually women, who have given up careers) and create an unjust result between the parties (where often one party leaves a long-term cohabitation with much more property than the other, often after having promised that household earnings would be shared).

During the decades since Marvin v. Marvin, the number of couples cohabiting outside of marriage has increased significantly; the Census in 2018 reported that more people in the 18-24 year group were living with a partner than were living with a spouse. However, outside a handful of states (e.g., Washington State, with its status of “Committed Intimate Relationship”), and excluding the small number of couples who enter detailed written agreements, unmarried cohabitants are still treated as legal strangers. Indeed, as Kaiponanea Matsumura points out in “Breaking Down Status” – and others have pointed out as well1 – cohabitants are treated by the law worse than legal strangers, as courts will regularly refuse enforcement of informal agreements between cohabitants (exchanges are presumed to be made altruistically) that would be more likely to be enforced between strangers. (P. 58.)

In “Breaking Down Status,” Matsumura approaches the problem of how to treat long-term unmarried cohabitants indirectly, by offering an intriguing and detailed comparison between domestic relations status (married or unmarried cohabitants) and worker status (full-time employee or independent contractor). For both employment and intimate relationships, the author shows how the legal status options developed long ago, in a far different time, have come to fit current practices and expectations poorly. On the employment side, the proper characterization of gig workers (e.g., Uber and Lyft drivers) has made salient how the options of “employee” and “independent contractor” both seem problematic. Each status comes with its own bundle of benefits and disadvantages, and each falls short of the experiences or needs of most gig workers. For example, gig workers do not seem to be independent contractors in the core sense of that label, in that they often work for only one company, and their terms of employment are generally set by that company. On the other hand, gig workers often have a flexibility regarding the number of hours worked that traditional employees do not have.

In the area of domestic relations, there are many unmarried couples who hold themselves out as married, and generally follow the norms and expectations of married couples in their community. However, there are also many unmarried cohabitants whose behavior and self-perception fill the whole spectrum from “basically married” to mere “friends with benefits.” And while one might picture a partner refusing to marry as some rich man who selfishly wants to keep all the property to himself, there is also, as a number of observers have reported, the reality of single, working class mothers “reluctant to commit to a marriage-like relationship because of concerns about a partner’s income stability, expenses, and debts.”2

As Matsumura points out, status relationships tend to encapsulate a complex of autonomy, dependency, vulnerability, and oppression. An obvious reformist reaction is to argue that each situation should be judged individually, taking into account all the circumstances. This is the impulse that creates equitable exceptions to legal rules, and one also finds it in Family Law, in doctrines like equitable (de facto) parental status and equitable adoption. However, as is well known, what is gained by individual consideration comes with costs – uncertainty, unpredictability, and too much discretion to judges (keeping in mind that many judges do not share “our values” – regardless of how one fills out the content of “our values”). It is not surprising that these equitable doctrines tend to become ever more rule-like over time: to create more predictable outcomes regarding when (e.g.) equitable parental status will be granted and when it will be refused. And, as Matsumura argues, the intermediate solution of having a large variety of statuses also has difficulties: like the “numerus clausus” idea in property law (not having too many categories of property),3  having too many family categories, or allowing parties to create an infinite number of new status structures through private agreement, which can quickly lead to confusion and inefficiency.

The article draws broad lessons: that in the government’s treatment of its citizens, it is inevitable that people be divided into categories, and it is convenient if those categories – “status” categories – often contain bundles of rights and obligations. Matsumura’s take-away is clear: “Status is inevitable.” (P. 55.)

However, the article does not prescribe resigned acceptance of misfit statuses. Matsumura believes that statuses can be reformed, though he warns that the process is rarely straightforward. What solves one problem may create another; it is hard to serve well autonomy, efficiency, and dependency (or even any one of them alone – e.g., responding to vulnerability can also have the unintended effect of encouraging vulnerability). Finding the right legal response to unmarried cohabitation (and gig employees) will require creativity and hard work.

Editor’s Notes: For another review of this article, also published today, see Aníbal Rosario-Lebrón, Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes, JOTWELL (November 3, 2020).

Also, please note that Jotwell’s Contributing Editors make their own selections as to what to review; review topics are not assigned by the Section Editors.

  1. E.g., Courtney G. Joslin, Autonomy in the Family, 66 UCLA L. Rev. 912 (2019).
  2. Naomi Cahn & June Carbone, Blackstonian Marriage, Gender, and Cohabitation, 51 Ariz. St. L.J. 1247, 1273 (2019).
  3. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1 (2000).
Cite as: Brian Bix, A Status Breakdown, JOTWELL (November 3, 2020) (reviewing Kaiponanea T. Matsumura, Breaking Down Status, __ Wash. U. L.R. __ (forthcoming 2021), available at SSRN),