Jun 6, 2023 Albertina Antognini
Yiran Zhang,
The Care Bureaucracy, 99
Ind. L.J. __ (forthcoming 2023-24),
available at SSRN (May 17, 2023).
Whether and how to value caretaking is one of family law’s intractable questions. The California Court of Appeal in Borelli v. Brusseau provides one well-known and widely-taught answer: “even if few things are left that cannot command a price, marital support remains one of them.” Borelli refuses to uphold an oral contract alleged by Grace Brusseau to take care of her husband at home after he suffered a stroke, in exchange for certain property. The court reasons that the contract lacked consideration because the duty of mutual support undergirding the marital relation meant she was already required to provide such care. Thus, the personal services Grace furnished “for the decedent in his home, for the duration of his illness, thereby avoiding the need for him to move to a rest home or convalescent hospital” were rendered for free. “[I]n the majority’s view,” Justice Poché details in dissent, the spouse “had a pre-existing or pre-contract nondelegable duty to clean the bedpans herself.”
Borelli’s outcome is largely unexceptional. The law routinely undervalues, if not entirely devalues, care provided in the context of an intimate, familial relationship. As it turns out, this is not unique to family law. Yiran Zhang’s article, The Care Bureaucracy, cogently shows how endemic the undervaluation of care is, despite beginning from a different premise – namely, that caretaking is work, the economic value of which the government has recognized through Medicaid, “the largest payer in long-term care” and “the most significant driver of the recent trend toward home-based long-term care.” (Pp. 11-12.) That is, even where there is some consensus that the provision of care is necessary and compensable, and even where that care might be undertaken by a non-family member, current regulation falls woefully short in capturing its full extent and assessing its value. The Care Bureaucracy covers a wealth of topics, including issues related to poverty law, employment law, and health care law; this family law Jot focuses on the paper’s intricate, pragmatic, and imbricated discussions of how care is regulated – to the detriment of those who give and receive it.
Care is a capacious term, often used to signal a general class of activities, which means that it can also be a vague term. Zhang, however, relies on “historical and ethnographic scholarship[] as well as regulations, guidelines, audit reports, and public hearing records related to Medicaid Home and Community Based Services (HCBS) programs” (P. 9), to ground her piece in accounts of what the day-to-day work of care entails. It requires helping an individual to “‘dress, bathe, use the toilet, or get in and out of his bed . . . not to mention the household tasks of cooking, shopping, or cleaning.’” (P. 4.) It requires preparing soft foods and allowing a patient to walk around, while following carefully and unobtrusively, behind. (P. 21.) Ultimately, it requires a dynamic between caretaker and care recipient that is “flexible, holistic, and relational.” (P. 22.)
To manage and assist with the provision of such care, the government relies on what Zhang identifies as the “care bureaucracy,” a term that is both descriptive and critical. The care bureaucracy converts the “integral care relationship into a list of physical tasks, meticulously quantifies the value of care work through procedures enforced by medical professionals and requires exacting documentation to repetitively prove the need and occurrence of the care work.” (P. 4.) These requirements affect the patients and caretakers in various ways, which the piece conveys from their perspective, in their own words. Patients bristle at the invasion of their privacy and autonomy, explaining that they–of course–mind that their caregivers have to keep a running record of them “in [ ] pajamas all the time.” (P. 59.) Care workers, in turn, describe the “‘level of anxiety’” the demands of the bureaucracy create, as they balance adhering to its rules and fulfilling their patients’ needs. (Pp. 55-56.)
Accounting for the work of care seems to be one of the benefits of the bureaucratic approach, which “provides a language to turn invisible, fluid care into a list of digestible quantifiable work.” (P. 31.) Zhang shows, however, that the bureaucracy of care nonetheless continues to keep much of this work invisible. At the most basic level, whatever fails to make it into the documents required by Medicaid– when, for example, a particular service is not approved by a recipient’s care plan – does not count as work worth compensating. (P. 27). Someone, however, still has to do that work. So, when the Medicaid plan allows only for a limited set of services, the rest falls, inevitably, on what the caretakers or family members are willing to do at their own expense, without compensation. (Pp. 27-28.)
Perhaps the most glaring example of caretaking that receives no recognition is the work of managing the bureaucracy itself. Users must “continuously navigate and comply with the bureaucracy to maintain eligibility and access care service or care payment” (P. 57), while caretakers must adhere to the bureaucracy’s numerous technical requirements, which can “interfere[] with the delivery of their care” (P. 58.). This work is, Zhang explains, “invisible” given that it does not amount to “a recognizable care task that the Medicaid program authorizes . . . or even mentions.” (P. 58.) As such, it is unpaid.
The labor of bureaucracy, and the work of care, is done mainly by women. The family member who provides caregiving is disproportionately female (P. 59), while the caretaking the Medicaid system relies on is performed by poor women (P. 14), specifically “low-income women of color and immigrant women” (P. 7). Medicaid remains a program for low-income families and over half of the workers themselves are on public assistance. (Pp. 37-38.) The consequences of extracting additional labor without compensation directly impacts communities who are already marginalized, who already have difficulty accessing material goods, and who do not have the political clout to change the way their work is recognized. It is also a reason why the care they provide is undervalued in the first instance. Zhang locates the care bureaucracy somewhere in-between the coercive and punitive state experienced principally by poor families of color, and the general lack of support the state provides to families overall. But she expressly situates Medicaid’s means-tested system in its welfare origins, with which it shares a basic distrust of its participants – both the care workers and the recipients. These factors help to explain the ubiquitous concerns over fraud that plague it, which are part and parcel of the larger infrastructure that hyper-regulates and polices poor families of color. (Pp. 38-42.) Significantly, the concerns over fraud exacerbate the one-way ratchet towards undervaluing care, and the audits that take place to ferret out the fraud are exclusively concerned with catching “false positives of overpayment.” (P. 48.) By definition then, this frame ignores the under-provision of care, and fails to address the plight of those “patients and families who would qualify for and significantly benefit from the public care program [but who] are kept out of it.” (P. 48.) It also extends the “surveillance and punishment tools” the care workers already habitually experience. (P. 51.)
Care work further suffers from its associations with the family, and the kinds of assumptions Borelli enshrines. The care workers receive little to no standardized training, which reinforces the notion that their work is unskilled; they also occupy an “outsider status” in that they are neither considered medical professionals nor, for many purposes, employees. (Pp. 50-51.) The professional and the familial have porous boundaries, though. Many care workers enter the field after having personally cared for a family member; these experiences increase a person’s willingness to pursue it as a job. (P. 63.) Once engaged as caretakers, they regard the autonomy they possess, along with the creation of kinship, even if “‘fictive,’” as important reasons to remain. (P. 61.) Family and family-like ties co-exist with professional ones, mostly to the detriment of the care workers and family members. The public care system relies on the availability of unpaid care provided by family members to function (P. 28), and family caregivers are less likely to enroll in the public care system, which would enable them to receive compensation for their work. (P. 60.) Rather than crowd out altruistic behavior, the commodification of care depends on its continued presence.
The devaluation of care work is not inevitable. Zhang concludes her piece by discussing the existing Program of Comprehensive Assistance for Family Caregivers (PCAFC), which she describes as having a more flexible structure for managing the dynamic relationship between need and care. Zhang is quick to acknowledge the many differences between Medicaid and PCAFC, and the ways that PCAFC, which is specifically set up for veterans and their family members, is not a viable blueprint for reforming Medicaid. Nor does PCAFC necessarily correct the inequities in terms of who gives care, or who is expected to give care. Rather, she offers it as an example of a different model of state-run care – as “a continuous, intimate, and stable relationship between two parties whose well-being is closely related” (P. 66) – which the same government is capable of implementing. Importantly, it also complicates a vision of the state that is either purely coercive on the one hand, or wholly inadequate on the other. The paper does not have the space or time to present a comprehensive reform agenda, nor should it, given its focus. But this means I can look forward to learning about what models of care Zhang thinks might actually succeed in future work.
May 5, 2023 Kaiponanea Matsumura
I have sometimes wondered whether it matters that the experiences of Asian Americans are nowhere to be found in the family law canon. This omission should be surprising. People from Asia have been skirting the shores of the Americas since the 17th Century. Within two decades of California becoming a state, people from Asia, mostly men from China, made up 25% of the entire work force and played a crucial role in developing the state’s infrastructure. These men, and others in western states, soon faced anti-miscegenation and immigration laws designed to prevent them from marrying and producing American-born children—laws concerning the bread and butter of family law. People from Asia or of Asian descent, some 22.4 million of them, are now the fastest growing minority group in the United States, largely because of family preferences in immigration law. Surely, I have told myself in passing, these and other developments should fit into the story we teach about family regulation. Surely, too, there are legal interventions that could strengthen Asian families or validate their shared experiences. But soon after I begin considering the possibilities, I am waylaid with doubts: What, if anything, are those shared experiences and values, and are they worth preserving, here? And would anyone, even Asian Americans themselves, really care about these stories?
The Loneliest Americans, by New York Times staff writer Jay Caspian Kang, is an epistemology of these ambivalences. Asia, Kang explains, means nothing to the immigrant from Korea, who finds little in common with people from countries like the Philippines or China. (P. 59.) Additionally, the highly skilled workers and their descendants who arrived after the Hart-Celler Act of 1965 (which replaced national origin-based immigration with a preference system favoring family reunification and skilled workers) have at best a tenuous, mostly imagined connection to the exclusion, lynchings, discrimination, and interment experienced by earlier Asian laborers and their descendants. (P. 57.) Above all, Kang provocatively argues, the upwardly mobile contingent of post-Hart-Celler Asian Americans are not invested in an Asian American identity because they hold onto the belief that it is possible on some level to assimilate into whiteness: thus, they hollow out Asian Americanness from the inside.
To be clear, Kang does not suggest that Asian Americans are naïve enough to believe that they themselves can become white. Mapped onto the Black-white binary that some have argued defines race relations in the United States, Asian Americans’ upward economic trajectory suggests that some should already have achieved that distinction. Kang notes, however, that this “narrative elides one crucial question: How do you actually become white if you’ve never felt white a day in your life . . . ?” (P. 78.)
Instead, whitening is inherently a generational project, which means it is inherently about the family, and, consequently, family law, expansively conceived. For immigrants themselves, children are the vehicle to assimilate into American culture and into whiteness. Children acquire English proficiency and use school as a launching pad to ascend to the middle class, presumptively bringing along the entire family. (Pp. 79-83.) This mindset frames the proliferation of test preparation centers in Chinese and Korean immigrant communities, where parents send their children to maximize their chances of getting into elite public schools, prep schools, and universities. (Pp. 115-128.) And it inevitably informs views about the importance of test scores in those admissions processes: as Kang wryly observes, “Nearly all the wealthy, assimilated parents I [know] ke[ep] their opinions [about New York’s use of standardized testing for admission to its most prestigious schools] to themselves, or, when pressed, spew[] out gibberish about ‘complicated situations’ and pine[] for some utopia where minority groups w[ill] not be pitted against one another.” (P. 128.) At the end of the day, however, those parents “still believe[] in the virtues of a pure meritocracy” and still see this meritocracy as the “best shot” for their children to overcome racial barriers. (Pp. 128-129.) Kang suggests that less assimilated Asian immigrants believe the same thing, just less self-consciously. If this is true, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College is not only about the fate of affirmative action, but the fate of some Asian families as well. The current discourse surrounding the legal dispute elides this dynamic.
Assimilation can also be generational in the biological sense when Asian Americans have children with white partners. Unlike earlier Asian immigrants, post-Hart-Cellar Asian Americans have not been subjected to laws designed to stunt the growth of Asian American families. Kang, the child of post-Hart-Celler Korean immigrants, begins the book by describing how he would stare at his newborn daughter and her “full head of dark hair and almond-shaped eyes[.]” (P. 3.) He recounts his “troublesome hope” that she would resemble her mother, “half Brooklyn Jew, half Newport WASP,” and join the ranks of “one who could either pass or, at the very least, walk around with the confidence of some of the half-Asian kids I had met—tall, beautiful . . . .” (Id.) Being biracial, he assumed, would ease her ability to “get[] a seat at the wealthy white liberal table” and “have the spoils of full whiteness.” (P. 11.) Importantly, her easy access to the white world would be a mark of his own assimilation, and a culmination of a process that began with his parents: “My parents, when they immigrated from Korea to the United States in 1979, could not have conjured up the details of their future granddaughter’s life, but they must have been after something like it.” (P. 229, emphasis added.)
Kang is too careful a writer not to have implied a binary in which whiteness is beautiful and Asianness less so, hence the “troublesomeness” of his hopes. He explores this dynamic in a chapter on MRAZNs (an acronym for Men’s Rights Activist Azns (“Asians”)). MRAZNs react to the perceived beliefs that Asian men are viewed as objectively unattractive and that Asian women are mostly interested in white men. They attribute these beliefs to this country’s history of white supremacy. Through this lens, Asian women who date white men are traitors, complicit in the plan to subjugate and eventually eliminate Asian men through interbreeding. (Pp. 186-194.) Here we see the flip side of marriage and reproduction as a tool of assimilation and acquisition of whiteness. If marriage and childbearing are marks of success, then the inaccessibility of intimate relationships becomes a manifestation of societal rejection, a failure of the intergenerational quest: family becomes the benchmark of failure. MRAZNs therefore lash out at their “oppressors” notwithstanding the fact that many of them have achieved high degrees of educational and financial success.
MRAZNs engage in tactics such as doxxing and online harassment that are deeply inappropriate, and Kang criticizes this aspect of the movement. But he expresses some sympathy for their rage: “[W]hy would you trust those Asians who deny Harvard is discriminating against Asian applicants, who tweet jokes about your small dick and your flat face, who seem almost embarrassed every time there’s a hate crime against your people? They will sell you out in a minute to maintain the illusion of the multicultural elite, and then they’ll go off and marry a white man and laugh in your face.” (P. 201, emphasis added.) MRAZNs intuit what some legal scholars have made explicit: that romantic preferences are shaped by structural factors, including the law. Here, too, is an opportunity to explore how law can be a tool to dismantle prejudices that affect family formation.
As the MRAZN example reveals, not all post-Hart-Celler Asian Americans share equally in the prospect of assimilation. Unskilled individuals arrive through the family reunification process as well, not to mention refugees and people who are undocumented. Kang accuses assimilationist Asian Americans (of which he is a part) of repeating the sanitized narrative of the “multicultural coalition of the upwardly mobile and overeducated,” where “everyone [is] doing well enough to celebrate their differences,” (P. 218), instead of allying with the working-class immigrants for whom whiteness is so hopelessly out of reach that it is not even a concern. These assimilationists believe the promise that by living “as a part of a multicultural elite” and erasing “all the unseemly parts of Asian America,” essentially “acting in the role of a white liberal,” they can cloak themselves, or at least their children, in whiteness. (P. 149.)
These assimilationist tendencies do not only complicate the project of advocating around an Asian American identity: they create something of an existential paradox. Kang recognizes that if his daughter in fact achieves “full whiteness,” something he simultaneously hopes for and fears, it will only be because she is able to “betray her father’s anxieties over belonging and identity and step into something that [he] do[es] not understand,” an un-race-conscious existence. (P. 219.) Full assimilation inevitably results in alienation from the previous generations, a form of intergenerational abnegation.
I should state explicitly that I have concerns with The Loneliest Americans, most prominently Kang’s casual essentializing of post-Hart-Celler Asians. Yet I appreciate the extent to which Kang illuminates how family is central to the experiences and aspirations of post-Hart-Celler Asian Americans, and the ways in which the legal landscape has mostly facilitated, but sometimes thwarted, those aspirations.
Kang has also succeeded in identifying the precise nature of the difficult choices faced by scholars who are interested in considering how to make the law more responsive to Asian American concerns. Obviously, these concerns are not universal. But more insidiously, to the extent they are rooted in values like filial piety or gender differentiation, they might be unpalatable or embarrassing, out of step with the liberal, individualist ethos embraced by the white-adjacent assimilationists. As just one example, some Asian American families structure their spending around the assumption that adult children will eventually serve as their parents’ de facto retirement plan. Yet only 30 states (excluding New York, with its large Asian population) have filial responsibility statutes on the books, and only three enforce their laws consistently. In states like California, for example, enforcement is rare (nearly all cases pre-date the 1970s), and only available where there is demonstrable need, which may not match the expectations of the parents. To protect these expectations, states could tailor and enforce filial responsibility laws by adding the expressed expectations of the parties as a factor for courts to consider. Yet to advocate for stronger filial responsibility laws, which would certainly protect some elders in the Asian American community, risks endorsing a heteronormative view of the family with which one (and here I admit that I am hiding behind the third-person pronoun) might not want to be associated.
Kang ends the book by vowing to step away from the protective cloak of whiteness and committing to cast his lot with the Asian American working class. One senses, however, that the comforts of whiteness may be too good for him to refuse. I feel a similar ambivalence about leaving the protective confines of our mostly white family law, with its established parameters and well-trodden debates. But I am telling myself here and now that the rewards may be worth the effort.
Apr 10, 2023 Courtney Cahill
Naomi Schoenbaum, Unsexing Breastfeeding, 107 Minn. L. Rev. 139 (2022).
Dissenting in the 1972 decision Stanley v. Illinois, Chief Justice Burger criticized the majority for suggesting that fathers and mothers were sometimes similarly situated when it came to nonmarital parenthood. “I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male’s often casual encounter,” said Burger. “Centuries of human experience buttress this view.” On Burger’s account, differential legal treatment of mothers and fathers was constitutionally sound because it reflected an obvious biological reality: that women had stronger attachments to children because only women carried, birthed, and nursed them. No matter that in 1972, the percentage of women who breastfed infants had “reached its nadir [of] 22%.” For Burger, breastfeeding was not just central to motherhood, but a constitutionally agreeable justification for sex discrimination—against men.
In Unsexing Breastfeeding, Professor Naomi Schoenbaum takes on the “centuries” of “common human experience” that assumes that breastfeeding is (1) exclusively biological, and (2) exclusively female. Schoenbaum shows that social practices have changed in the five decades since Burger’s 1972 dissent, with more than 80% of infants breastfeeding as of 2017 (P. 145 n.38), and that the law remains as tethered today as it was then to the idea that breastfeeding is—and should be—a female-only activity. For example, the Patient Protection and Affordable Care Act requires covered employers to offer lactation support services and breastfeeding education to women but not to men (P. 173). Similarly, the Family and Medical Leave Act grants mothers but not fathers workplace leave to attend breastfeeding-related appointments (P. 177). Moreover, state and federal public accommodation laws grant women but not men the right to breastfeed in public (P. 179). Likewise, hortatory policies like that of Florida celebrate breastfeeding as “an important and basic act of nurture which must be encouraged in the interests of maternal and child health and family values.” (Fla. State. Ann. Sec. 383.015 (1993) (emphasis added)) (P. 242).
In addition to exposing the vast network of laws, regulations, and policies that presume that breastfeeding is women’s work, Unsexing Breastfeeding unpacks what that work actually entails. The word “breastfeeding” captures a situation that might seem obvious enough: the feeding of an infant or young child at someone’s breast. However, as Schoenbaum explains, breastfeeding is so much more. She says: “[S]uccessful breastfeeding depends on substantial investments in capital and expenditures of labor that are separate and apart from lactation” (Pp. 159-160); “insurance coverage for these products” (P. 161); self-educating on things like “the mechanics of breastfeeding” and “how to set up the breastpump and how to store breastmilk” (P. 162); transporting a baby to the lactating parent at work to be fed (P. 165); figuring out how to position the baby (P. 165); burping the baby; learning “important hunger cues” (P. 166); and supporting the lactating parent physically and emotionally (P. 166). Unsexing Breastfeeding conceptualizes breastfeeding much as property professors conceptualize property: as a bundle of activities rather than a single activity, a set of social relationships about things rather than a thing itself. In a prior article titled Unsexing Pregnancy, Schoenbaum and her co-author unbundled pregnancy into its biological and social components, challenging sex equality’s largely uninterrogated assumption that pregnancy is a physical condition unique to women. In Unsexing Breastfeeding, Schoenbaum extends her unbundling project to breastfeeding and to sex equality’s similarly uninterrogated assumptions about what breastfeeding labor involves—and who might be involved in it.
Unsexing Breastfeeding argues that the law of breastfeeding ought to be unsexed not just because breastfeeding itself isn’t (necessarily) sexed, but also because the sexed law of breastfeeding is failing so many constituencies. It is failing trans men and non-binary persons, some of whom can (and do) perform all aspects of breastfeeding, including lactation (P. 146). It is failing men, who are relegated to the status of “mere back-ups” (P. 145) when it comes to sustaining infants. It is failing women, who are burdened not just by the enormously time- (and energy-) consuming labor of breastfeeding, but by the gendered childcare expectations that breastfeeding sets into motion. How caregivers perform “from the start” (P. 190), says Schoenbaum, cements “sticky roles that are hard to reverse” (P. 145). Finally, the sexed law of breastfeeding is failing sex equality, which rejects sex stereotypes parading as biological rationalizations and which prohibits the “separate spheres” mentality that the sexed law of breastfeeding reflects and reproduces.
Like all good scholarship, Unsexing Breastfeeding inspires as many questions as it answers. One question is whether unsexing breastfeeding law is enough to unsex breastfeeding. If breastfeeding practices were unsexed, would men take advantage of them? Some studies suggest that many employed men in heterosexual relationships who can take parental leave upon the birth of a child, don’t, prompting commentators to argue that the United States should follow Norway and Sweden’s example of the “daddy quota,” that is, the policy of reserving a part of parental leave only for fathers. What else would have to happen outside the law for the unsexing project to unfold?
Another question is how unsexing the law of breastfeeding will help single women who aren’t partnered. As Schoenbaum reports, non-marital births account for a significant share of all births (P. 177). While not all unmarried women with children are unpartnered, many—25%—are. One asks: could breastfeeding equality (between women and men) stymie breastfeeding justice by folding support into the traditional, nuclear family rather than externalizing it onto the state or some other entity?
Finally, Schoenbaum criticizes state hortatory breastfeeding policies (like Florida’s) for focusing on the maternal/child relationship to the exclusion of the paternal/child relationship. But one wonders whether the state should be in the business of encouraging breastfeeding at all. Breastfeeding is incredibly hard work, as Schoenbaum powerfully demonstrates. Even if unsexing the law of breastfeeding makes breastfeeding—or, more aptly, keeping a child alive—easier for some people, it still doesn’t make it easy for any lactating person. What if people don’t want to breastfeed, or have a disability that prevents them from breastfeeding? Will the unsexing project box those people out by allowing the state to engage in breastfeeding preferentialism, so long as the state does so in a sex neutral way?
Unsexing Breastfeeding invites robust critical inquiry about these and other issues. But its intervention is broader still. Fifty years ago, Chief Justice Burger—in dissent—relied on the biological differences of pregnancy and breastfeeding to make the case for why sex discrimination was constitutionally permissible. In 2022, Justice Alito—writing for a Court majority—went further still, relying on the biological difference of pregnancy to reason that abortion classifications didn’t discriminate on the basis of sex at all. The regulation of a medical procedure that “only one sex can undergo,” said Alito, did not amount to sex-based state action under the Equal Protection Clause. Among other things, Dobbs represents the disturbing retrenchment of biologism and the logic of real differences in American law, which undergirds everything from anti-abortion advocacy to the tsunami of anti-trans legislation and sentiment in the United States. Unsexing Breastfeeding, which takes on a particularly stubborn manifestation of real differences, couldn’t come at a better time.
Feb 22, 2023 Douglas NeJaime
Clare Huntington, Pragmatic Family Law, __ Harv. L. Rev. __(forthcoming 2023).
About two-thirds of states in the U.S. have functional parent doctrines—doctrines that extend at least some parental rights and obligations to an individual based on developing a parent-child bond and parenting the child, regardless of a biological or legal tie to the child. Progressive parentage reforms that dislodge parental recognition from traditional preoccupations with marriage and biology have in recent years spread in states controlled by Democrats, primarily in the Northeast and on the West Coast. Yet, the map of jurisdictions with functional parent doctrines does not look like the electoral college map in the 2020 presidential election. Instead, functional parent doctrines exist in Connecticut and Kentucky, New Jersey and Nebraska, Washington and West Virginia.
The story of functional parent doctrines is not anomalous. Other important interventions in the family—from the legalization of gestational surrogacy arrangements to the passage of Pregnant Workers’ Fairness Acts to the funding of universal pre-K programs—appear to defy the red-blue divide of contemporary America. Why have reforms of this kind—reforms that implicate divisive questions of reproduction, parenthood, gender, and sexuality—seemingly skirted the country’s hyper-polarization? In her forthcoming article, Pragmatic Family Law, Clare Huntington offers an answer: a pragmatic approach to lawmaking and adjudication. Across a range of family law issues, Huntington argues, “judges, legislators, administrators, and others are largely setting aside abstract ideals and political ideology and instead focusing on whether a doctrine or policy promotes core aspects of family and child wellbeing[.]” (P. 3.) Relying on “experience-based learning [and] empirical evidence,” decisionmakers are developing “context-specific solutions” that meet families where they are. (P. 4.)
Thoughtfully drawing on my own work with Courtney Joslin, Huntington uses functional parent doctrines as a prime example. As she explains, judges in jurisdictions across the country—red, blue, and purple—“ratify nontraditional family forms,” not through “broad pronouncements about acceptable and unacceptable” family configurations, but instead by making “contextualized decision[s]” that “center the experiences of affected families.” (P. 4.) In other words, confronted with families in which children are in fact being raised by someone who is not their biological or legal parent, judges are turning to functional parent doctrines to legally protect the child’s relationship with the person who is parenting them—a result that promotes the child’s interest in a secure parental attachment. The families at issue may feature nonmarital childbearing. They may feature queer family formation. They may feature substance use disorders, incarceration, and child maltreatment. But judges generally seem less concerned with passing judgment on families and more concerned with doing what appears best for the particular family before them. Judges, in Huntington’s vision, are being pragmatic, not political.
Huntington historicizes this pragmatic method, explaining how nineteenth-century American pragmatists emphasized “usefulness, fallibility, empirically based experimentalism, and pluralism.” (P. 27.) She locates the pragmatist approach, for example, in Jane Addams’ settlement house movement. (Pp. 29-30.) The American tradition of pragmatism provides the foundation on which Huntington builds out a vision of contemporary family law directed at problem solving over political fighting. The identification of pragmatism in present-day American family law is itself an important contribution, alerting us to a significant strand of family law decision making that offers potential and hope in a world too consumed by divisive politics.
To be clear, Huntington does not argue that, across the various domains she surveys, decisionmakers are self-consciously employing a pragmatic methodology. Instead, she sees such self-consciousness as an aspiration, and to that end, she offers a coherent framework with which to understand examples of what she terms “convergence,” “de-polarization,” and “nonpartisan pluralism” in family law. Huntington wants judges and lawmakers who eschew “values-based” resolution in favor of context-based, empirically-informed decisions to understand themselves as engaged in pragmatism. If we can appreciate the common methodology that decisionmakers have used to address what might otherwise seem like controversial questions of family policy, we might be better able to address pressing family law issues and design institutions to engage in more effective problem solving.
Huntington does not claim that polarization does not infect family law. In fact, she attends to numerous areas where polarization is pervasive—abortion access, for example. But, as Huntington shows, there is pragmatism even in our era of polarization. Too little attention is given to points of convergence. Too little scholarship focuses on how existing law may model effective policymaking and adjudication. Sure, there is much to critique in federal and state regulation of the family today. But Huntington shows us there is also much to appreciate, not only substantively but methodologically.
None of this is to say that family law should be devoid of politics. As Huntington explains, the pragmatism that she identifies has significant limitations. Most critically, Huntington describes how pragmatism has struggled to effectively confront racial inequality. Pragmatism appears to point toward universalizing and race-neutral interventions, many of which have benefitted families of color, but pragmatism is unable to address racial subordination on its own terms. There remains an important place, then, for politics—and for values-based and rights-based reasoning.
That Huntington’s framework is not totalizing is a strength, not a weakness. Huntington presents a picture of family law in motion—a world in which politics and pragmatism co-exist, ebbing and flowing. An issue that today presents itself as polarizing may tomorrow be ripe for pragmatic approaches. See, for example, Huntington’s treatment of marriage equality. Though “de-polarization on marriage equality is not complete and irreversible, . . . legal and cultural acceptance is so much more widespread than would have seemed possible from the culture wars of even twenty years ago.” (P. 22.) In her account, “the marriage equality movement was successful at least in part because the debate moved away from abstract ideals of what marriage means and instead focused on family and child wellbeing—first establishing there was no harm flowing from being raised by same-sex parents and then by establishing the harm from non-recognition.” (P. 38.)
Huntington alerts us to the promise of pragmatism. Be attentive, her article urges, to opportunities to solve real problems facing real families.
Jan 18, 2023 Brian Bix
Rachel Rebouché,
Bargaining about Birth: Surrogacy Contracts During a Pandemic, 100
Washington University Law Review (forthcoming, 2023), available at
SSRN.
The United States is an outlier among other nations on the matter of surrogacy. While other countries are cutting back on the practice (not allowing payments to surrogates beyond compensation for expenses, allowing use only by intended parents from their own countries, or prohibiting it entirely), the trend in the United States is in the other direction: more states authorizing surrogacy and enforcing surrogacy agreements, and more states authorizing commercial surrogacy (i.e., payments to surrogates beyond their expenses), with only a few states putting residential restrictions on who can use the process. In Bargaining about Birth: Surrogacy Contracts During a Pandemic, Rachel Rebouché reports that 47 states, “either through statute or case law” (P. 6, footnote omitted), authorize surrogacy. This article, and Rebouché’s previous work, artfully explore the way that surrogacy is a practice that depends on a mixture of legal and extralegal norms.
The particular focus of the article is on how surrogacy practice was affected by the pandemic, with surrogates and intended parents negotiating restrictions on travel and potential disagreements regarding inoculation and isolation. On the whole, though, the particular complications of COVID are presented primarily as examples of more general truths about how surrogacy works.
Rebouché argues that state surrogacy statutes tend to “miss how contracting plays out on the ground” (P. 6). She observes that surrogacy agreements often contain many provisions that are legally or practically unenforceable. Some provisions, e.g., regarding medical care during the pregnancy, are frequently contrary to a (and constitutional) rights to bodily autonomy (Pp. 9, 11). Other provisions are intrusive restrictions on the surrogate’s behavior, regarding, e.g., not allowing smoking or drinking alcohol (P. 8). Surrogacy “contracts can obligate a surrogate to give weekly reports or to allow intended parents to attend all medical appointments … . [However,] intended parents will not sue for breach if they miss a doctor’s appointment [and] no court would enforce a provision requiring a surrogate to give weekly reports.” (P. 16) As Rebouché points out, the point of the provisions in the surrogacy agreement is not to create standards to be applied in some later court fight; rather, “the process of drafting a contract creates relationships that foster a sense of obligation” (P. 14).
Much of Rebouché’s work on surrogacy looks at the role of lawyers and fertility clinic administrators. With surrogacy, “[l]awyers seek to keep clients out of court and in the agreements they negotiated” (P. 13). This does not distinguish surrogacy arrangements from most conventional commercial contracts, and this is fully noted by Rebouché, who cites to the work of Cathy Hwang and others, referring to publications that discuss the role of lawyers and agreements in commercial transactions.
Surrogacy parallels many relational contracts in other settings in the importance of trust (P. 12). Discussing and drawing up detailed contracts can be important to the parties coming to know one another, helping each party to understand the needs and expectations of the others. And, as the article notes, when disputes arise, it will be for the lawyers and clinic administrators — working with the parties, not bringing suits in court – to mediate the disagreement (P. 13). Part of that persuasion process may well involve reference to the agreement (Pp. 15, 17-18), even though the lawyers know (while the parties may not) that the relevant provisions may be unenforceable. How willing parties are to comply with their agreements, the author notes, often depends on how satisfied they were with the negotiation process (P. 16), so the skills of the lawyers as intermediaries, both before and after the contract is signed, becomes as important as the exact terms included in the agreement.
One of Rebouché’s ultimate points in Bargaining About Birth (Pp. 5-6, 11, 30-31) is similar to ones raised, in different ways, by both the American legal realist, Karl Llewellyn, and the law and economics scholar, Ronald Coase: that lawmakers should not assume that because they have enacted certain prescriptions that they have thereby changed people’s behavior accordingly. What happens in the shadow of either commercial or surrogacy law may be only a partial or warped reflection of the formal legal rules, with the rules being modified and supplemented by local social norms. The article ends: “Policymakers might question if the laws they write address those practices [of surrogacy contracting] and what new regulation of the fertility industry might accomplish or cost” (P. 31).
Dec 8, 2022 Josh Gupta-Kagan
Tarek Z. Ismail,
Family Policing and the Fourth Amendment, 111 Calif. L. Rev. __ (forthcoming 2023),
available at SSRN.
Every year, Child Protective Service (CPS) agencies investigate about 3 million families around the country for alleged neglect or abuse of their children. Under agency policies, all of those millions of investigations include searches of families’ homes. CPS investigators knock on the door (usually unannounced), look in every room of the house, open kitchen cabinets, sometimes inspect children’s bodies, and generally look for any evidence of child maltreatment. Yet CPS agencies rarely seek a warrant, and typically act as if that is unnecessary. (P. 18 & n.86.)
In Family Policing and the Fourth Amendment, Tarek Ismail aptly explains why, notwithstanding current practice, the Fourth Amendment’s normal warrant and probable cause requirements actually do apply to CPS home searches. Nothing in the Fourth Amendment’s text is limited to police investigations, but the Supreme Court has established some exceptions to when a warrant is required for searches beyond criminal investigations. For example, the Court has permitted dragnet searches of every home in any area without individualized suspicion when those searches are limited in nature to meet a public need such as enforcing housing safety codes. (Pp. 23-26.) But the Court has never carved out an exception for CPS searches, which begin with allegations to a state child protection hotline that a specific parent (or guardian) is neglecting or abusing their children. (Pp. 47-49.) And CPS searches are quite invasive, featuring inspections of “a family’s most intimate spaces – their bedrooms, bathrooms and kitchen cabinets.” (P. 55.)
The Supreme Court has also developed the “special needs” doctrine (named for a phrase in Justice Blackmun’s concurrence in New Jersey v. T.L.O.) for searches of individuals with reduced expectations of privacy, like children at school or parolees. Most relevant to CPS searches, the Court has applied the special needs doctrine to cases where it believed no constitutional rights were at stake, such as in the search of a public benefits applicant’s home by a public benefits caseworker in Wyman v. James. (Pp. 29-30) That holding is controversial, and has led to compelling critiques, like Khiara Bridges’ argument that poor families lack privacy rights due to rules like Wyman’s. However troublesome Wyman may be, Ismail explains how CPS home searches are doctrinally different, so the special needs doctrine does not apply. (Pp. 53-55.) Instead of a situation involving diminished rights, CPS searches implicate parents’ and children’s fundamental right to family integrity. And individuals’ Fourth Amendment protections are at their apex in their homes. (Pp. 53-55.)
The riddle here is not whether the Fourth Amendment applies or whether the warrant and probable cause requirements should generally cover these searches. Of course they should, and most courts have held that a warrant is required. (P. 46.) (Common exceptions like exigent circumstances apply too. The riddle is why the Fourth Amendment’s modest protections are not more prominent during CPS investigations. Recent media attention (which, not incidentally, features Ismail’s scholarship) even quotes a former CPS investigator as saying, shockingly, “Rights – no we never did that. I didn’t even know that was a thing.” The Supreme Court has never squarely addressed CPS home searches, and a circuit split even exists with five circuits appropriately holding that CPS home searches generally require warrants, and two circuits holding otherwise that the special needs doctrine, aided by qualified immunity, prevents liability for such searches. (Pp. 45-46.) As Ismail asks in his introduction: “[W]hat is it about CPS investigations that has allowed them to escape critical legal scrutiny for so long?” (P. 7.) The answer, he suggests, is that the legal system has for too long viewed CPS investigations as something other than what they are – family policing. This has led CPS investigators and agencies to assert – incorrectly – that the Fourth Amendment does not apply to them, and to act accordingly. And the absence of an exclusionary rule coupled with deferential standards in civil rights actions like qualified immunity (Pp. 45-46) have limited courts’ capacity to enforce the Fourth Amendment.
In explaining exactly how CPS investigations operate like police searches, Ismail’s article conclusively answers the Fourth Amendment question and demands a re-conception of the legal system that begins with those investigations. CPS investigators train “side-by-side” with police and learn police investigative techniques. (Pp. 16-18.) CPS investigations address allegations that could amount to criminal offenses (assault, or child endangerment). And they address accusations that were referred to law enforcement in the early 1960s, but shifted to CPS agencies as they became more established (and separated more families) in that decade. (Pp. 20-22.) CPS investigations seek to gather evidence to use in court cases against individuals when the state seeks to limit their fundamental constitutional rights. As one advocacy group’s billboard put it, “some cops are called caseworkers.” Ismail puts these adversarial investigatory procedures in the context, explaining how the creation of modern CPS agencies in the 1960s was not about helping vulnerable children, but designed to police families receiving public benefits and ensure their “suitability,” a term whose application was just as racialized and gendered as one would expect. (Pp. 20-22.)Thus the “family policing” of Ismail’s title. Just as the police cannot threaten physical liberty by searching homes for evidence of a crime without triggering Fourth Amendment protections, CPS agencies may not threaten the fundamental constitutional right of family integrity by searching homes for evidence of neglect or abuse without triggering Fourth Amendment protections. Because they engage in policing, not welfare supervision, Ismail shows why Fourth Amendment protections are essential. And, optimistically, he identifies what may be the beginning of a trend towards enforcing such rights. (P. 64, citing In re Y.W.-B..) With no suppression rule in family court (P. 45), the development of organizations that will sue to enforce rights during CPS investigations is a crucial part of this trend. More broadly, this article joins a growing literature seeking to rename the legal system at issue – not “child welfare” but the “family regulation” or, yes, the “family policing” system. Ismail has contributed greatly to it by demonstrating just how literally accurate those names are.
Nov 10, 2022 Aníbal Rosario-Lebrón
Courtney G. Joslin & Douglas NeJaime,
How Parenthood Functions, __
Colum. L. Rev. __ (forthcoming 2023), available at
SSRN.
For some time now, legal scholars have been writing about the panoply of diverse family forms such as single parents, post-divorce, blended, and LGTBQ+ families. We use these “modern” arrangements as a gateway into discussing how families actually work, how far the law is from reflecting that reality, and how social changes in family formation challenge norms about gender, sexuality, and the nuclear family. Only on a few occasions, however, do we find in the legal literature an article that empirically tests our assumptions about how the law reflects family reality and how effectively a legal institution regulates such reality. Courtney Joslin and Douglas NeJaime’s How Parenthood Functions does precisely that.
In their forthcoming article, the authors survey 669 electronically reported judicial decisions (almost all of which are appellate decisions) from every United States jurisdiction with a functional parent doctrine. They define functional parenthood as legal institutions that grant parental rights to a person based on their conduct of having functioned as a parent (e.g., de facto parentage, in loco parentis, psychological parenthood, or presumed parentage based on holding out a child as one’s own). Their study includes cases decided under common law, equitable, and statutory grounds that treat functional parents as legal parents or grant them partial parental rights. The authors exclude from their data set cases arising under third-party custody and visitation statutes that do not require proof of a parent-child relationship or parenting behavior; doctrines that turn on a person’s status in relation to the legal parent to grant rights (e.g., marital presumptions or right to visitation based on the status as a grandparent or stepparent); and assisted reproduction statutes that recognize people as parents (both married and unmarried) based on their intent to be parents.
The authors coded these data using several categories. In addition to the expected classifications such as jurisdiction, posture, party bringing claim, publication, type of doctrine applied, legal authority, and judicial determination, the authors also coded for the identity of the alleged functional parent (e.g., same-sex unmarried partner, grandparent, different-sex spouse, foster parent), the role of the alleged functional parent and of the legal parent (e.g., primary caregiver, never lived with the child, involved but not the primary caregiver); whether there were domestic violence and/or child abuse and neglect allegations and the identity of the individual(s) against whom allegations were made, child welfare involvement, whether child entered the family through assisted reproduction, adoption, or sexual procreation; and parental death. In this piece, they focus on how these coded categories show who functional parents are and what they do, and how these cases arise and are decided by the courts.
Based on their data, Joslin and NeJaime dispel various descriptive and predictive assumptions made by courts and scholars regarding functional parents. Specifically, the authors show how scholars’ fascination with paradigmatic “modern families” might lead to erroneous beliefs that functional parent doctrines are obsolete, intrusive of the parent-child relationship, and the basis for meritless and abusive claims, and to unwarranted skepticism about whether courts can effectively decide such cases.
First, Joslin and NeJaime find that nonbiological parents in same-sex relationships (overwhelmingly nonmarital), different-sex stepparents, and former cohabitants in different-sex unmarried couples constitute a small group of the alleged functional parents, 17% each. Rather, the largest group of claimants are relatives claiming to be a functional parent (36%). Consequently, instead of finding post-dissolution custody disputes to predominate, the authors find a wide spread of other situations giving rise to functional parent claims (e.g., cases involving parental death and child welfare intervention). These data, along with the finding that only 11% of the children in the cases surveyed were conceived through assisted reproductive technologies (ART), demonstrate how what has been argued and/or overstated in the functional parenting literature as the paradigmatic functional parent claimants (i.e., partners in same-sex couples and different-sex cohabiting couples with a non-biological parent) are not the majority of the claimants in functional parenting cases.
This discussion inevitably invites a reflection on how family law scholars discussing non-traditional family arrangements revert to the affluent marital family model even if it takes new forms from a different sex white couple (e.g., a same-sex married couple using ART). Joslin and NeJaime’s work shows that functional parenting is a mechanism often used by low-income and middle-class families to devise parental care arrangements amidst substance and health issues, economic insecurity, and instability. However, much of the literature ignores the largest group of functional parents and focuses instead on same-sex couples using ART.
Their findings not only contradict claims in the parenting literature about who functional parents are but also question arguments about functional parent doctrines being obsolete because of marriage equality as it assumes that the majority of these same-sex couples are married. However, the majority of functional parents in nonmarital same-sex couples will have no protection if it were not for the functional parenting doctrines. Joslin and NeJaime’s findings show how functional parent doctrines are still important even in the limited set of post-dissolution cases as the majority of people in these cases, contrary to the assumptions in the literature, are unmarried and might not have other recourse because of their cohabiting status.
This discussion highlights also the paradox of marriage equality jeopardizing some advances for nonmarital couples. As, I and others have argued, marriage equality, even if a great civil rights victory, is a double-edged sword as it has served to reify marriage as the paradigmatic family structure, putting in peril non-traditional family arrangements.
Joslin and NeJaime’s findings contradict as well one of the major critiques of the functional parent doctrines: the doctrines’ intrusiveness in the parent-child relationship. This argument is predicated on the assumption that the functional parent claim generally arises as part of a dissolution action in which the alleged functional parent seeks custody or visitation. As such, the court determination inevitably infringes on the right of the parent to raise a child and implies a state interference with the otherwise untouched parent-child relationship.
However, as Joslin and NeJaime’s finding show the majority of cases do not arise in post-dissolution disputes. Moreover, in the majority of the cases, there is no concern about intruding on the parent-child relationship. In 83% of the cases the alleged functional parent had been a primary caregiver of the child and in 42% the alleged functional parent was a co-primary caregiver with the legal parent; showing that the traditional parent-child relationship has already been disrupted/transformed.
Ironically, arguing for the abolition of these doctrines could lead to these families being and/or continuing to be policed and intruded on by the State. As Joslin and NeJaime’s analysis shows, functional parenting doctrines insulate these families from being policed as the established parent-child relationship is preserved and protected from state intervention by, for example, preventing the child from entering the foster care or the child welfare system. Moreover, as discussed, this critique centers around affluent marital families while ignoring the impact on lower-income ones.
Their data also rebut the idea that functional parenting claims could be used to put children in danger or to use children as pawns in post-dissolution disputes. Interestingly, and contradicting these concerns, the authors found that in 62% of the cases involving allegations of domestic violence or child abuse/neglect, the allegations were made against the legal parent and not against the alleged functional parent.
Joslin and NeJaime’s work shows that rather than disrupting children’s lives, functional parent doctrines typically secure children’s relationships with the individuals who are in fact parenting them. In addition, the data reaffirms that the majority of claimants in functional parent cases are people who wish to serve as a parent, rather than people evading being recognized as such. These findings, accordingly, support the use of functional parent doctrines on child-centered grounds.
Furthermore, the authors’ analysis makes clear that courts are not overextending the use of these doctrines. Based on the authors’ discussion, one might even wonder whether the rate of decisions denying parental rights is affected by the courts’ use of the descriptive and predictive assumptions that Joslin and NeJaime rebut in their paper. For example, the authors found that in cases in which the alleged functional parent was the child’s primary caregiver and no legal parent was even consistently caring for the child, the court rejected the recognition of the functional parent 30% of the time. That means that even in cases where no legal parent was exercising their responsibilities but a functional parent was, the court decided not to grant rights to the person effectively taking care of the child. This and other data discussed in the paper suggest that courts tend to err on the side of non-recognition rather than on recognition.
These are a few of the many fascinating questions that the article raises. The authors also invite every one of us to think more about the parameters we use to determine functional parenting. Personally, the article has invited me to not only challenge the idea of the family from the perspective of marriage but also from the perspective of parentage.
I look forward to Joslin and NeJaime unveiling further insights in future work based on this data. I also await anxiously the publication of their coded data set to see more scholarship that challenges our notions of family arrangements and brings Family Law closer to a functional reality.
Cite as: Aníbal Rosario-Lebrón,
Functional Reality, JOTWELL
(November 10, 2022) (reviewing Courtney G. Joslin & Douglas NeJaime,
How Parenthood Functions, __
Colum. L. Rev. __ (forthcoming 2023), available at SSRN),
https://family.jotwell.com/functional-reality/.
Oct 7, 2022 Rachel Rebouché
Laura T. Kessler,
Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, 108
Cornell L. Rev. __ (forthcoming 2023), available at
SSRN.
Professor Laura Kessler’s new article, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, forthcoming in the Cornell Law Review, begins with the graphic and powerful retelling of five miscarriages. Her five miscarriages. She does not mince words; she does not, as she writes, believe that the experiences can “sound and look pretty.” (P. 1.) She soon reveals the reason for personal storytelling, which is to challenge the silence that surrounds pregnancy loss and to shine a light on this common yet often hidden experience.
Although there is copious scholarship on pregnancy and work, there is very little in the legal literature on miscarriage, specifically, and employment law. In mapping how the laws governing the workplace make miscarriage invisible, this article asks us both to see miscarriage as part of workers’ lives, demanding accommodation, as well as to think about how workplaces contribute to pregnancy loss. Below, I explore three important theoretical and practical contributions of the article before turning to the difficulty of defining pregnancy, miscarriage, and abortion.
First, Miscarriage of Justice notes that federal legislation—like the Pregnancy Discrimination Act of 1978, the Family and Medical Leave Act of 1993, the Americans with Disabilities Act of 1990, and the Occupational Safety and Health Act of 1970—ostensibly should address miscarriage but, in practice, “courts and agencies often refuse to interpret these statutes in obvious and reasonable ways to provide meaningful equality to workers when they suffer the common experience of miscarriage.” (P. 5.) For example, Professor Kessler invites us to consider miscarriage as an issue of occupational safety. She takes up the risks to a pregnancy for those who are in minimum-wage and physically-demanding jobs, such as warehouse workers, low-paid health workers, and package delivery workers. She notes that courts routinely ignore these workers, and, in so doing, ignore the “low-income women and women of color [who] are more likely to work in sectors of the economy involving taxing physical labor.” (P. 52.) This invisibility an entire lass of pregnant worker vulnerable under existing law.
Professor Kessler urges Congress to pass the Pregnant Workers Fairness Act, a bill that provides reasonable workplace accommodations for pregnancy and related medical conditions, antiretaliation and privacy protection for employees’ health information, a right to paid sick leave, and occupational safety standards that could mitigate the risk of miscarriage. One might question the feasibility of the Act passing, or the efficacy of any new federal legislation, given courts’ stunted interpretations of existing federal legislation. But the broader point should not be missed: federal employment non-discrimination and occupational safety standards, in practice as well as on paper, offer incomplete and inadequate protections for workers experiencing pregnancy loss.
Second, Professor Kessler’s comprehensive treatment of the employment law of miscarriage will appeal to diverse audiences. Professor Kessler marshals sources from several disciplines, including medicine, psychology, and sociology. By examining the mental and physical consequences of miscarriage, the article expands the academic field of work-and-family conflict into the field of health. This opens new lines of thought about what workers who have experienced pregnancy loss should expect of their employers. Scholars and lawyers, as well as courts and agencies, will find the article’s detailed doctrinal and statutory analyses illuminating.
Third, Professor Kessler joins contemporary conversations that relate to miscarriage. The piece de-genders pregnancy by discussing the broad effects that miscarriage has on pregnant people, their partners, intended parents, and even surrogates. It examines the health and emotional impacts of miscarriage well beyond the experience of physical pregnancy loss. For instance, one-fifth of those who experience miscarriage become “symptomatic for depression and/or anxiety, with symptoms typically lasting [ ] years, impacting quality of life and subsequent pregnancies.” (P. 8.) Finally, the article discusses pregnancy loss and the right to a healthy pregnancy without implicitly relying on the rhetoric of abortion regret or fetal personhood. This is difficult territory to navigate, and the article treads this ground thoughtfully.
On the last point – the relationship between miscarriage and abortion – I have a constructive criticism, which by no means takes away from the force of the piece. At times, it is not clear if Professor Kessler’s focus is miscarriage or pregnancy generally. I read Professor Kessler as suggesting that miscarriage could be a lens through which to examine larger questions related to pregnancy. But a tough issue with which the article does not grapple is how we define miscarriage; indeed, Professor Kessler’s analysis provides an opportunity to reconsider the existing distinction between miscarriage and abortion.
As states move to criminalize abortion after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe and Casey and stripped constitutional protection for pre-viability abortion rights, what abortion encompasses is far from clear. Early accounts suggest that providers do not understand when they can provide care during a miscarriage; when can providers intervene when a miscarriage is in process? The federal statute governing emergency care (EMTALA) preempts state law, and most state bans include a medical emergency exception in any case. But the questions prompted by abortion bans post-Dobbs get at the broader issue of how pregnancy, miscarriage, and abortion interrelate and are defined.
In the opening personal narrative, Professor Kessler resists a pregnant/not pregnant binary; she writes “miscarriage is a process, a slow motion train wreck….what does it mean for the person who is miscarrying? It is a surreal experience that is hard to describe, this being pregnant but not pregnant.” (P. 3.) Resisting an understanding of pregnancy as an on-off status could be an important contribution of the article. Miscarriage is not just common. It is also complicated and, as Professor Kessler so aptly demonstrates, our laws do not pay enough attention to that complexity.
Cite as: Rachel Rebouché,
The Employment Law of Pregnancy Loss, JOTWELL
(October 7, 2022) (reviewing Laura T. Kessler,
Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, 108
Cornell L. Rev. __ (forthcoming 2023), available at SSRN),
https://family.jotwell.com/the-employment-law-of-pregnancy-loss/.
Sep 7, 2022 Dara E. Purvis
Michael J. Higdon,
Common Law Divorce, __
Ala. L. Rev. __ (forthcoming 2022), available at
SSRN.
Every semester I teach family law, I spend a few minutes contradicting my students’ instincts about common law marriage. Most students have a vague idea of common law marriage and joke about cohabiting friends being common law married. A regular part of my introduction of common law marriage is thus to explain that it is increasingly uncommon, discuss the important functions that the formalities of marriage serve, and emphasize that even in states that do allow the creation of new common law marriages, those spouses must seek a formal divorce should their relationship end. This last requirement–that all divorces be formalized–seemed so obvious a principle that I had never questioned it. That is, I had never questioned it until I read Michael Higdon’s article Common Law Divorce.
Professor Higdon’s main focus is on a small but significant group of married couples who have decided to end their relationship but who cannot easily or practically access divorce. This population, comprising about fifteen percent of separations, informally and permanently separate without ever legally divorcing. Professor Higdon outlines a number of factors that may be in play: lack of resources to access the court system, lower likelihood of remarriage and thus lower incentives to finalize their separation through divorce, and difficulty affording and navigating the formalities of divorce without legal advice. Such couples tend to be members of groups that have difficulty accessing the legal system in other contexts: disproportionately nonwhite and poor. Professor Higdon focuses on this group to argue that easier, even informal, methods of ending a marriage not only serve the interests of the people, but also the interests of the state.
Before the widespread adoption of no-fault divorce, as Professor Higdon chronicles, divorce was an adversarial proceeding that could be near-impossible to secure without collusion. Reform of family law has made divorce much more widely available, largely because of the prominence of no-fault divorce. Because of this availability, much of the policy debate around divorce has been about whether it is now too easy to get. Consistent with this framing, most of my familiarity with people barred from divorce arose in uncommon circumstances: for example, a woman denied a religious divorce by her spouse, even though a civil divorce was finalized. Similarly specific, and currently moot, were pre-Obergefell paradoxes in which a same-sex couple married in one state and then moved to a second state that refused to grant a divorce since State #2 didn’t want to recognize their marriage as legally existing in the first place.
The light Professor Higdon casts on separated but never divorced couples is thus a welcome complication recognizing a very practical problem of access to the legal system. As Professor Higdon discusses, the Supreme Court has contemplated the harm of barring access to divorce in Boddie v. Connecticut, a 1971 case holding that hinging access to divorce on first paying a number of fees to the state violated the due process rights of indigent people who could not afford to end their marriages. But as Professor Higdon demonstrates, theoretical access to divorce does not always translate to practical access.
The second reframing that Professor Higdon offers further twists traditional assumptions about the state’s view of divorce. Existing scholarship around access often sets the state’s interest in promoting marriage and stable families against the interests of individuals who wish to be free of an unhappy marriage. Professor Higdon focuses on the state’s interests, which he argues actually align with the individual’s. For example, because states are interested in promoting marriage, one might assume that the state would always wish to discourage divorce. Professor Higdon points out, however, that facilitating legal divorce for the “separated but never divorced” population would actually promote marriage, as it would free those people to remarry into functional partnerships. Furthermore, divorce has protective functions that the state would want to operate on behalf of economically weaker spouses who may have simply been abandoned or otherwise disadvantaged in an entirely informal split; later spouses of the separated partners who might discover years after the fact that their marriage is invalid due to the partner’s existing first marriage; and children of the relationship who may not have received the state’s attention in custody and child support proceedings arising out of a legal divorce. This flip from the individual’s rights and choices to the state’s policy and normative choices is counterintuitive in the best way, enriching and deepening how scholars consider divorce.
In order to make divorce more accessible to the permanently separated population, Professor Higdon proposes universal access to no-fault divorce, increased availability of legal aid to assist in securing a formal divorce, and broader adoption of summary dissolution procedures. The last of these, allowing swift and automatic divorce for eligible couples, would be the common law divorce of the title. Professor Higdon outlines some of the criteria that could be used to establish eligibility for summary dissolution–whether a couple has children, length of the relationship, amount of marital property, and so on. An entire second article could likely be written about these criteria, as they raise so many questions about when and why the state might attempt to exercise some protective control over dissolutions and where it might not.
Professor Higdon’s analysis also intersects with the work of several incisive scholars writing about nonmarital relationships in interesting ways. For example, Albertina Antognini’s article on nonmarital contracts chronicles how courts refuse to enforce private agreements between unmarried partners. One of the specific reforms that Professor Higdon proposes is a form of summary dissolution that converts a private separation agreement into a divorce decree. Suppose a state were to adopt Professor Higdon’s proposal. Might it extend into a greater willingness to enforce broader agreements between nonmarital partners that Professor Antognini shows are not enforced? Kaipo Matsumura wrote about whether state treatment of domestic partnerships post-Obergefell violated an asserted right not to marry–his nuanced take on the autonomy rights that would protect an individual’s choice to never be married have interesting theoretical implications for Professor Higdon’s discussion of the importance of facilitating exit from an existing marriage. Common Law Divorce thus offers the reader a variety of takeaways: provocative but persuasive policy proposals for legislators, an accessible hook into classroom discussion for family law teachers, and deeper food for thought for family law scholars writing about relationships of all kinds.
Jul 28, 2022 Albertina Antognini
Who owns one’s body? What kinds of intimate activities generate value? These questions appear in a number of discrete family law subjects, like whether to remunerate housework, or to compensate surrogacy, but they also shape the very existence of family law as a field, defined by opposition to the exchanges that take place in the market. This opposition, it turns out, is illusory: while legal rules construct the family as a site of altruism and affection, they also explicitly and routinely recognize economic exchanges. Indeed, family law is deeply implicated in the project of determining what has quantifiable value, who gets to decide, and who benefits as a result.
Emily Ratajkowski’s My Body provides a nuanced, deeply personal, and unexpectedly moving take on these core questions. Her book — part-memoir, part-cultural critique — struck me as relevant for family law scholars and teachers for its treatment of the gendered ways one can lay claim to one’s body; the precarious boundary between professional and personal relationships, or between “work” and everything else; and the double-edged sword of commodification.
Ratajkowski “catapulted to [] global fame” after her appearance “writhing–and almost naked” in the 2013 music video for the song “Blurred Lines” (P. 41) (which was later held to infringe on Marvin Gaye’s “Got to Give it Up”). At the time, Ratajkowski made headlines not only for her nearly-nude antics, but also for confidently riding the bumpy third wave of feminism, defending her choice to undress as “empowering” and not “anti-feminist” (P. 2), and decrying anyone arguing otherwise as controlling and “anti-woman.” (P. 3.) Now, she is a famous model; a founder of a clothing company offering “easy body-conscious essentials”; a writer; and a mother. Since her rise to celebrity, Ratajkowski has also complicated her understandings of her body and her work.
Ratajkowski’s book, which she dedicates to her son, is divided into twelve essays, each an attempt to process and to name her experiences. They are also attempts to reclaim them as her own. As Ratajkowski details, ownership is ascribed and value is assigned to the detriment of already-vulnerable groups – in her case, young women. In her essay titled “Buying Myself Back,” she describes her experience with a photographer who sexually assaults her and, years later, publishes a book with the Polaroid pictures he took of her that same night. She did not consent to his touch, nor did she consent to his using and selling her images. (Pp. 171, 174.) Yet she is powerless to stop him. “I watched,” she recounts, “as [his book] Emily Ratajkowski sold out and was reprinted once, twice, and then three times.” (P. 176.) The theme recurs. She is repeatedly prevented from controlling her self, her image, and her worth. When she posts a picture on Instagram – of her walking outside her apartment in New York City, taken by paparazzi – she is sued. The photograph, as it happens, is not hers. (Pp. 154-55). In the most meta of these examples, the contemporary artist Richard Prince copies an image from Ratajkowski’s Instagram, prints it onto a large canvas, and then sells it for $80,000. Ratajkowski details the incongruity of it all: “I make a living off posing for photographs, and it felt strange that a big-time, fancy artist worth a lot more money than I am should be able to snatch one of my Instagram posts and sell it as his own.” (P. 156.) Nevertheless, she decides to purchase one of the prints he made of her (there are several) and splits the cost with an ex-boyfriend; she also requests and receives a smaller study of another of her Instagram pictures. She ends up having to pay for that too. When she and her ex separate, he claims she owes him $10,000 for it, “a price he’d arrived at from his ‘knowledge of the market’” – even though, she exclaims, the study “was a gift to me!” (P. 159.) Men (and they are all men), repeatedly profit from her, mostly without her consent and at times from her directly. “I have learned,” Ratajkowski deplores, “that my image, my reflection, is not my own.” (P. 155.)
This mechanism – preventing individuals from accessing material goods in predictably gendered ways – ought to be familiar to any family law scholar. Courts regularly refuse to distribute property, or otherwise apportion wealth, and in so doing cleave apart who does the work from who gets to benefit from it. Outside of marriage, for example, courts often decline to distribute property at the end of a relationship. One reason they provide is that certain activities – namely, homemaking and childrearing – are rendered gratuitously, without expectation of pay. Despite the use of non-market rhetoric, these decisions do not prevent an exchange from taking place, nor do they deny that such activities have economic value; rather, they prohibit the individual who undertook the work to recuperate its worth. Ratajkowski’s experience, it turns out, is the rule, not the exception.
But injecting money into these relationships, without more, does not appear sufficient to improve unequal conditions. Ratajkowski shows how money touches all interactions and establishes a hierarchy of control that few can escape. As Ratajkowski observes, “in my experience, all the friends of famous men seem to be on their payroll.” (P. 209.) What exactly Ratajkowski herself is getting paid for, and what her work entails, is a shifting proposition. Ratajkowski recounts a trip where she was flown from Los Angeles to London for a “job opportunity” that ended with her in the backseat of a car, watching a video of the “famous man” who invited her, having sex. (P. 209.) Another work event involved Ratajkowski being paid $25,000 to “go to the Superbowl” with Jho Low, the Malaysian businessman and current international fugitive. (P. 137.) Upon receiving her assignment, she asks: “I don’t have to, like, do anything specific, right?” Lines are never explicitly drawn, which means that consent is also a moving target. When the sexualization that underlies her job comes close to materializing into actual sex, Ratajkowski struggles to understand what she, and others around her, are expected to do, and which relationship categories, like employer-employee, they might fit into. On an all-expense paid trip to Coachella, she realizes that some of her traveling companions have a more specific set of responsibilities. Ratajkowski describes an interaction where the man who organized the outing tells a fellow model to entertain the male guests; wondering what that might entail, Ratajkowski asks “Was Sacha Kim’s boss? Or were they cohorts? And what was she expected to go and do exactly?” (P. 148.)
Personal and professional relationships collide in other ways that defy neat categorization. One of the most important relationships that enables the women Ratajkowski works with to succeed is marriage. As she explains, it is a direct vector to achieving professional goals: “I watched models and actresses guarantee themselves financial success and careers by dating or marrying rich and famous men. . . . The Vogue cover they thought they’d never have? After a wedding and a big diamond ring, there it was on newsstands, the model softly wrapped in her high-flying partner’s arms.” (P. 150.) That marriage is the relationship that secures access to wealth and opportunity is entirely consistent with a legal regime that makes marriage the locus of so many material benefits. But it is only one of many sites where money and sex coexist. Ratajkowski places her work along “the same spectrum of compromise” as marriage – while some women marry rich men, she “post[s] paid Instagram ads for skincare and clothing brands owned by rich men,” all of which are variations on “commodifying [one’s] physical presence.” (P. 151.) The primacy of marriage in this space also reveals how achieving recognition for women is still limited: “The world celebrates and rewards women who are chosen by powerful men.” (P. 150.)
Ratajkowski is well-aware that she has benefitted from the ability to sell her body and capitalize on her particular set of attributes. She sits uneasily with this fact. On a fancy vacation in an exclusive resort in the Maldives, for which she is getting paid, she tries to convince herself that she has “worked the system” – as opposed to being a part of it. (P. 91.) She never, however, questions the conditions that make her body so marketable in the first instance. Instead, she mostly naturalizes her figure, and provides only glimpses of the pressure she feels to look a certain way (“At Ford Models, a woman in her late thirties with curly hair measured my hips over [] jeans . . . [t]hen she said more quietly, just so I could hear, ‘We’ll take a few inches off because of these pockets.’” (P. 72); “I fastened a thin belt as tightly as I could around my midsection—punching new holes in the belt’s fake leather with a pen and cinching it so that it dug into my flesh when I exhaled.” (P. 107); “I recently started smoking cigarettes and skipping meals to maintain a tiny waist.” (P. 206)).
While Ratajkowski, a succinctly self-described “white girl” (P. 10), does not pay any sustained attention to the shape of what sells, or reflect on how the images she posts of herself online might be contributing to the harm that teenagers especially seem to be experiencing, she convincingly shows how she has been trapped by her body in a way that defies derision or dismissal. Ratajkowski’s experience might seem unique and, insofar as she is a successful model, unrepresentative. But it is far from it. “Model or influencer or actor or not, all women know what it’s like to use their sexuality for security in some capacity, I thought.” (Pp. 89-90.)
My Body provides a poignant example of how women’s roles are still limited by the men who look at them, and how sheer commodification is an incomplete response to the problem of inequality. Ratajkowski asks, “What is the power of my body? Is it ever my power?” (P. 206.) These are questions I will continue to consider as I teach how family law defines value, distributes wealth, and allows – or, as more often the case, denies – women the ability to exert control over their bodies.
