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.
Jun 28, 2022 Naomi R. Cahn
In the introduction to her book, Kristin Henning writes: “We live in a society that is uniquely afraid of Black children.” (P. xv.) The Rage of Innocence shows just what that means for Black children – and the rest of us.
In bleak chapters, Henning examines the criminalization of Black youth. A chapter contrasting the experiences of white and Black American adolescents sets the table. The next three chapters examine how “play,” clothing and hip-hop, and sexuality transform into markers of crime. A set of chapters examining policing-based activities follows, while the penultimate two chapters explore the “dehumanization” of Black children and Black families. Henning shows how the police and school “resource officers” treat the normal behaviors of childhood, when exhibited by Black children, as illegal activities while the same behaviors of white children are unnoticed – or rewarded. She starts almost every chapter with the story of a particular child or youth, and then embeds those stories in social science data and legal analysis that back up and illustrate her point.
Growing up Black, she shows, means the constant and “excessive intrusion” by the police (xvii) into the lives of Black youth, and the criminalization even of giggling: “four twelve-year old Black and Latina girls were strip-searched” at their middle school for laughing, because they were seen as “’hyper’ and ‘giddy.’” (P. 32.)
Or consider hoodies, which were designed to help high school athletes stay warm. When white high school girls wear them to yoga, they are unremarkable. By contrast: “A Black boy in a hoodie is viewed as a threat and a menace. His clothing causes shopkeepers to call 911.” (P. 51.)
While juvenile justice is a distinct discipline, it straddles family law as well as criminal law. As Henning shows, the criminal apparatus stands in for, or overlaps with, the parental function of shaping children’s lives and instilling certain values; the book provides perspective on how children come of age in in a setting outside of their families or the abuse and neglect system, in the third system of incarceration. Those of us in the family law sphere may include a unit on juvenile justice in a child, parent, and state course, or discuss it in the basic family law course. Henning’s book provides the tools to include more material in our courses on how juvenile justice intersects with the family, and the book shows the critical importance of doing so.
The chapter on Black families is titled “Things Fall Apart,” and looks at how incarceration affects not just the targeted children but other family members. The chapter starts with stories of Black youth who have died, whether at the hands of the police (Michael Brown), or self-appointed vigilante (Trayvon Martin), or suicide. Henning traces how parents are told that their children have been arrested – “the calls are usually perfunctory” (P. 274) – what it feels like to see a child shackled, and the arbitrariness of bail-setting. Once children are incarcerated, visitation can be difficult: it’s not just that the parents might work; the child might be placed in facilities far from their homes. Henning, who was a public defender in Washington, D.C. before joining the Georgetown law faculty, has represented clients who have been sent away to Florida. (P. 278.) Although youth who maintain familial relationships through visitation seem to “fare better” while they are imprisoned (such as lower incidence of “misbehavior”), the system does “little”, Henning explains, to facilitate such connections. (P. 278.)
And then there is the impact of the criminalization of Black youth on their siblings. Henning tells the story of her own brother, who was arrested for the first time when she was a teenager. (P. 283.) She notes that while there is little research on how children experience the imprisonment of a sibling, what does exist shows that children feel “considerable trauma from the complex array of feelings.” Those feelings range from worry about their sibling, sorrow about losing the companionship, and also include, potentially, “shame and embarrassment about having a sibling in the ‘system.’” (P. 287.)
A child’s involvement with the criminal justice system might also cause a family to be evicted. The federal “One Strike” housing policy essentially allows public housing authorities to evict an entire family when one member – or a guest – is involved in drug-related acts. She tells the story of her client, “David,” who lived with his mother and two brothers in a two-story public housing unit. His mother, who was paralyzed from the waist down, could not get to the second floor; the city’s representatives, including social workers, could. They found drug paraphernalia. Although David’s mother asked to be moved into a one-story unit so she could better supervise her sons, David and his brother were arrested, the entire family was threatened with eviction, and a child neglect investigation was opened into the situation of the youngest brother, Jerrod. When Jerrod was sent to a group home for children who were neglected, Henning writes: “Until then, David had been one of my toughest clients. Not hard. Not mean. Not angry. Just strong. But when the judge decided to remove his little brother from their home, David collapsed on the floor, crying uncontrollably.” (Pp. 293-94.) The story also has powerful resonance with Dorothy Roberts’s indictment of the child “welfare” system, expressed recently in her 2022 book, Torn Apart, and another institutional setting in which children come of age.
The Rage of Innocence is hard to read. Henning’s account is often shocking in its careful cataloguing of the ways in which a deep-seated fear and distrust of Black adolescence leads to an outsized criminalization of Black youth, with long-term negative psychological, social and economic effects for the individuals, families, and communities involved. The contrast with the treatment of white youth shows why there is a disproportionate number of Black youth represented in the juvenile justice system: according to the Department of Justice, in 2019, the detention rate for non-Hispanic black juveniles was 139/100,000, compared to 41 for Hispanics and 22 for non-Hispanic whites. But that contrast also shows that Black youth do not need to be treated in this way.
Somehow, at the end of the book, Henning offers hope. She celebrates the resilience of youth. She offers a series of potential reforms that can improve that resilience. For example, she emphasizes supportive family relationships and the need to ensure that each child has at least one supportive “’irrationally caring adult’” in their lives – if not a network of such strong relationships. (Pp. 289-91.) She notes that parents can promote their children’s self-esteem. Building resilience also includes helping “youth develop a strong racial identity” (P. 304), which can, in turn, help them navigate adverse experiences and create achievement goals.
In advocating for “police-free schools,” she calls for better mental health services, with professionals who are trained in antibias techniques; she sees a role for the police in responding to violence, just not in the daily surveillance of schoolchildren. (Pp. 313-14.) She also suggests providing police training that teaches officers about adolescent brain development, that gives police a range of tools to respond to typical adolescent behavior, that informs them of juveniles’ legal rights, and that makes de¬-escalation a priority. (Pp. 318-320.) And she argues for law reform, such as through requiring “racial impact statements” that show how different races will be affected by any particular law. (P. 330.)
Ultimately, she counsels us to let children be children.
May 25, 2022 Ayelet Blecher-Prigat
Sean Hannon Williams,
DNA Dilemmas, __
Yale L. & Pol’y Rev. __ (forthcoming 2022), available at
SSRN.
The expansion of direct-to-consumer DNA tests and databases that retain vast DNA data enables almost unlimited access to genetic information and leads to situations in which people make surprising discoveries about their genetic origins. Sometimes people learn that a person who is identified on their birth certificate as their parent is not their genetic parent. Occasionally, people faced with such findings want the law to take account of this discovery, inter alia by amending their birth certificates. In DNA Dilemmas, Sean Hannon Williams uses such cases as a basis to kick off a provocative intellectual journey into the meaning of legal parentage and the relationship between self-identity and state recognition, and he offers fresh insights on these issues with broad implications for further research.
Williams first offers a new conceptual framework for post-majority parentage. Existing family law doctrines are largely focused on the parent-child relationship when the child is a minor, and in this context, the meaning of legal parentage is one of the most debated topics in legal scholarship today. Williams exhorts the law to recognize parentage beyond a child’s minority as a significant and distinct legal category that is grounded in different normative justifications and thus should be governed by different rules from those that apply during a child’s minority. Williams’s argument in this regard is powerful, since for all that the law focuses on parentage during the child’s minority, the reality is that the parent-child relationship generally lasts much longer after the child reaches adulthood than it does during the child’s minority.
During minority, parentage is governed by general rules that are intended to serve children’s interests, but that do not give children a voice in deciding who their legal parents are (and rightly so). Williams argues not only that parentage is meaningful after children reach adulthood, but also that each adult child should have a say in who his or her parents are, and the weight, if any, that genetics, functional parenting, or other factors play in this regard. This privatization of parentage post-majority is one of the most provocative arguments that Williams makes. It intends to challenge the state’s monopoly on deciding parentage and to “[open] up a space to contest and shape what it means to be a parent.” (P. 45.)
In justifying his challenge to the state’s monopoly, Williams argues powerfully that any interest the state has in either deciding parentage or controlling the information contained in the birth certificate fades away after the child becomes an adult. The state’s compelling interest in identifying who is responsible for a minor child’s emotional and financial stability justifies clear rules that define parentage and set limits on the ability to challenge or change it. According to Williams, none of these interests justifies regulating parentage after the child becomes an adult. Williams argues that the only relevant interests after the child reaches the age of majority are those of parties involved: the adult child, the existing legal parent(s), and the potential new parent(s).
Though he challenges the state’s monopoly on defining parentage, Williams acknowledges the complex interactions between the state and the individuals involved, as well as the significant role the state plays in the process of constructing self-identity. Legal recognition of self-identity has been the subject of rich legal scholarship, including with respect to the law’s treatment of intimate partnerships (recognition through marriage), its recognition of one’s gender, and its regulation of parentage through actions (by parents) to claim or disclaim parental rights vis-à-vis minor children. Williams argues convincingly that because our parents are a meaningful part of our self-identity, the ability to define our parentage should create a basis for legal claims children may bring to authenticate, and thus to vindicate, their self-identities through state recognition.
In the end, Williams translates his rich theoretical analysis into a concrete proposal for reform, targeting amendments to birth certificates. In the U.S. today, birth certificates are the primary official record of one’s identity; they list one’s name, gender and parentage. Williams sets aside comprehensive reforms, such as those that would create new and separate official parentage documentation or change existing birth certificates to include multiple categories of parentage. Instead, Williams focuses on what he perceives to be a politically feasible targeted reform: “eliminating statutes of limitation for paternity suits brought by the child herself after she becomes an adult” and creating a consent-based regime that would allow changes to parentage registration at least when all parties agree (the adult child, the registered legal parents, and the potential new parents).
Thus, though discoveries about genetic origins are the starting point for William’s analysis, his proposal goes beyond merely eliminating statutes of limitations to enable children to amend the identity of their “true” genetic parents. Williams offers an elective parentage regime as a response to concerns about genetic essentialism that may arise if his proposal were confined to instances involving genetic surprises about parentage.
Williams then addresses challenges his proposal might trigger. First, he considers possible unanticipated collateral implications for legal doctrines that use parentage as a foundation for rights or obligations. Williams’ motivation for allowing adult children to modify their own parentage is grounded in these individuals’ identity interests, rather than in any specific legal consequence. Therefore, he leaves detailed legal solutions to potential “ripple effects” to amendments in legal parentage to be designed over time. He does endorse a contextual view of parentage, however, so a “parent” for one purpose (e.g., birth certificate) might not be a parent for another purpose (e.g., inheritance or immigration). Williams then discusses other dilemmas that may arise when not all parties agree to the change in parentage, or when amendments are sought after the death of an existing parent or a potential new legal parent.
I do not agree with all of the specific resolutions Williams endorses. For example, I would hesitate to allow an adult child to delete a legal parent who actually functioned as such. Though it is laudable to empower children in the parent-child relationship, I find it problematic to allow the will of the adult child to prevail in all cases of disagreement (though I confess it may be the parent in me that resists this suggestion). I am wary of a contextual approach to legal parentage (even post-majority parentage) and its potential to erode legal parentage. I also would not wholeheartedly endorse an atomistic vision of an autonomous-self and would pause before allowing people to be legally parentless, even when they are adults.
But these disagreements only underscore the value and contribution of DNA Dilemmas as a bold example of scholarship that goes beyond criticism and lays out a concrete normative proposal for reform. It sheds new and refreshing light on debates in existing scholarship on parentage and on the complex relationship between identity and state recognition, and it forces us to revisit and rethink normative conventions on these issues.
Apr 25, 2022 Kaiponanea Matsumura
Jeffrey Rachlinski and Andrew Wistrich begin their article, Benevolent Sexism in Judges, with an epigraph that, in its pithiness, cannot be improved upon: “The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.” Perhaps the most infamous proof of this claim can be found in Justice Joseph Bradley’s concurring opinion in Bradwell v. Illinois, which points to “the natural and proper timidity and delicacy which belongs to the female sex,” as well as her “paramount destiny . . . to fulfil the noble and benign offices of wife and mother,” as reasons to deny Myra Bradwell a license to practice law in Illinois. The stereotypes that women are natural caregivers, more nurturing and attentive to their children than men, persist to this day, undergirding unequal treatment in the workplace, burdening nonconforming individuals, and discounting efforts of men who are excellent parents.
In some instances, however, these same stereotypes may favor women. Rachlinski and Wistrich set out to test this phenomenon, which they term “benevolent sexism.” They study whether judges are affected by gender bias in two contexts where women regularly experience better outcomes than men: child custody disputes and criminal sentencing. Judges are supposed to be impartial in their decisions and are typically forbidden from relying on gender when determining outcomes. The confirmation of gender bias would therefore be an important (albeit unsurprising) finding.
As the authors note, the mere fact that women experience systematically better outcomes in some contexts, like custody disputes, cannot prove the existence of gender bias among judges, as other factors unique to those individual cases might influence outcomes. For instance, women seek sole custody more frequently than men, which partially explains why they get sole custody more of the time. Moreover, any given mother might be better situated to assume custodial responsibilities than the child’s father. Controlling for individual differences between male and female parents in real cases is practically impossible. (Pp. 112, 121.)
To tease out gender bias in the custody context, the authors presented judges with a hypothetical child relocation case. In the hypothetical, a parent with primary custody over two young children (ages four and six) petitions to relocate, with the children, to a city two-hundred miles away to pursue a work opportunity. The other parent, who spends three weekends per month with the children and sees them several times per week, opposes the move. Half of the judges received a version in which the parent seeking to relocate was the mother; the other half received a version in which the parent seeking to relocate was the father. A total of 355 judges in the United States and Canada participated in the study while attending four different judicial education conferences. Because some of the judges were generalists and were coming from different jurisdictions, the authors provided a rough summary of the law governing relocation decisions.
To test gender bias in the sentencing context, the authors provided two groups of judges, 141 trial judges from Ohio and 210 federal judges, a one-page sentencing hypothetical in which the defendant, either “Frank” or “Lisa,” sends a threatening letter to a caseworker who denied the defendant disability benefits. The defendant, who had told the caseworker that he or she could not work and needed the benefits to remain in the home and to keep his or her child from starving, is charged and pleads guilty. The Ohio materials told the judges that the defendant pleaded guilty to the felony of retaliation against a public official, which carries a prison term of one to five years. The federal materials told the judges that the defendant was charged with sending threatening communications through the U.S. mail, and provided the relevant federal sentencing guidelines.
The authors found bias in favor of women in both contexts. Regarding custody, in the combined sample of 355 responses, 56% of the judges allowed the female parent to relocate in contrast to 42% of judges who allowed the male parent to relocate. This difference was statistically significant. Regarding sentencing, the authors found that judges sentenced a male defendant to an average of 14.2 months, whereas judges sentenced a female defendant to 11.3 months, again a statistically significant disparity.
In their discussion of these findings, the authors observe that custody and sentencing law permit the exercise of a significant amount of judicial discretion, which increases the possibility that stereotypes may influence decision making. Rather than proposing to constrain discretion, a solution amply explored in the family law literature, they assume the good faith of judges and propose a series of debiasing techniques. For instances, judges can remind themselves of stereotype-incongruent models “such as esteemed professional women and devoted fathers”; engage in thought experiments in which they change the gender of the litigants; keep themselves honest by tracking of the outcomes of male and female litigants; and implement practices to facilitate deliberate thinking at the expense of intuitive thinking, like adhering to checklists or rubrics. (P. 135.)
These suggestions seem sensible and easy to implement through judicial education programs. What interested me most, however, were several aspects of the authors’ findings that did not merit sustained attention in the article but beg to be studied in greater depth.
When examined more closely, the data show that family court judges exhibit less gender bias than the overall results suggest. Of the overall pool of 355 judges presented with the custody relocation problem, approximately one third were family court judges attending either the National Council of Juvenile and Family Court Judges annual conference in 2015, or the New York State Association of Judges of the Family Court of New York conference in 2019. In other words, one-third of the judges were family court specialists and two thirds were generalists. 70% of the generalists would have allowed the mother to relocate while only 48% would have allowed the father to do so: a significant disparity. However, the specialists were much less likely to be affected by the gender of the relocating spouse: 30% would have granted the mother’s request, compared to the 26% who would have granted the father’s. (P. 125) The parent’s gender did not have a statistically significant effect on the specialists. (P. 126) These findings suggest that family court judges, by virtue of their training, experience, or other factors, may be reassuringly gender egalitarian.
In another interesting wrinkle, female judges exhibited less bias in both the custody and sentencing contexts. When it came to sentencing, male judges imposed an average sentence that was 3.7 months shorter for female defendants. Female judges, however, imposed an average sentence that was only 0.7 months shorter for female defendants. In the custody context, male judges granted a mother’s relocation request 61% of the time, in contrast to 43% of the time for the father. Female judges showed a smaller spread, granting a mother’s request 51% of the time in contrast to 43% for the father.These results indicate that female judges might be less inclined to exhibit bias in favor of women in these contexts. It would be interesting to see whether further studies could confirm this result, and also whether they might reveal the reasons why female judges are less susceptible to unequal rulings.
The law has come a long way in eliminating explicit sex-based classifications in the family context. Yet stereotypes and social norms continue to produce unequal outcomes. Benevolent Sexism in Judges is a reminder that gender bias can be documented, quantified, and better understood.
Mar 23, 2022 Linda C. McClain
In 1960, Mary (“Polly”) Ingraham Bunting, newly-appointed President of Radcliffe College, wrote an essay for The New York Times Magazine to encourage applications to the new Radcliffe Institute for Independent Study. In the essay, Bunting connected the Institute’s goal of ending the “waste of highly talented, educated womanpower” to helping women as well as to better realizing America’s “heritage” and “aspirations.” The Institute would help “intellectually displaced women”—mothers whose homemaking and childcare responsibilities had interrupted their careers—get back on track through a financial stipend of up to $3,000, access to Harvard’s library resources, a private office, and formal and informal exchange.
As Maggie Doherty recounts in her engaging book, The Equivalents: A Story of Art, Female Friendship, and Liberation in the 1960s, Bunting, a microbiologist and educator, first conceived this “messy experiment” in “a national war room populated almost entirely by men”: she served on a Cold War-era committee formed by the National Science Foundation after the Soviet Union’s launch of Sputnik to study education in the U.S. and steer more resources and students into science and engineering. (Pp. 58-59.) Publicity for the Institute echoed Cold War rhetoric about the national risk of not utilizing women’s talents, but also stressed the risk to families and marriages: “This sense of stagnation can become a malignant factor even in the best of marriages . . . when the gifted woman must spend her time inventing ways to employ herself mentally and failing, or only half-succeeding, may turn against the marriage itself in sheer frustration.” (P. 68.) If this rhetoric brings to mind Betty Friedan’s famous articulation of “the problem that has no name,” in The Feminine Mystique, it may be because Bunting and Friedan initially planned to collaborate on the book. However, the collaboration ended because Bunting resisted Friedan’s approach of viewing the dynamic “in terms of men against women,” instead of (as Bunting perceived it) a “climate of unexpectation” about women’s roles “in which both men and women were trapped”: that women could not have both family and career so that any pursuit of intellectual goals would be at a cost to their personal lives. (Pp. 63, 65.) Bunting viewed the Institute as a way to change that climate. (P. 63.)
Doherty argues that the Radcliffe Institute’s emergence is a “crucial and yet often overlooked event in the history of American feminism,” which sometimes treats The Feminine Mystique as the launching point of second-wave feminism and the prior decade as a “dead zone for liberation politics.” (P. xviii) Instead, efforts by “women reformers, educators, and artists of the 1950s and early 1960s” helped to lay “the groundwork for feminist revolt”—even though many of those women viewed themselves as neither revolutionaries nor feminists. (P. xix.) Referencing Virginia Woolf’s famous A Room of One’s Own (1929) and Woolf ‘s imagining a world in which generations of generous female benefactors had (similar to their male counterparts) left money “to found fellowships and lectureships and prizes and scholarships appropriated to the use of their own sex,” Doherty observes: “The Institute made Woolf’s supposition into something real.” (Pp. xix-xx.)
The Institute provided the crucial resource of time away from caring for home and children. Drawing on her own experience of combining motherhood with laboratory research (in a relatively egalitarian marriage to a husband who was the primary earner), Bunting believed both that most women desired to combine family life with professional life and could do so with the right supports. Bunting envisioned that the Institute would provide “a place to work free from the unpredictable distractions of family life, the compulsion to pursue the daily routine at the expense of a half-finished conception or dream, and the guilt over children rebuffed, or questions unanswered.” (P. 70.) Bunting believed that this small group of female scholars could inspire Radcliffe undergraduates, but also inspire other colleges to adopt similar programs. (P. 65.)
To show the Institute’s impact on the women it supported, Doherty focuses on the friendships, artistic creations, and careers of five writers and artists who were “associate scholars” at the Institute during 1961-1963, its first two years: poets and close friends Maxine Kumin and Anne Sexton, painter Barbara Swan, sculptor Marianna Pineda, and writer Tillie Olsen. These five called themselves “the Equivalents” because their applications had to demonstrate that they had the “equivalent” to a doctorate through “success in an artistic field.” (Pp. xvi, 57.) Drawing on archival material, Doherty recreates an otherwise “lost world” that is engaging, illuminating, poignant, and sometimes tragic (in the case of Sexton, who took her life in 1974). Family law and gender law scholars and teachers will find rich nuggets to help convey what marriage, family, and work/family conflict looked like prior to the “gender revolution” spurred on in part by the Supreme Court’s shift to a more skeptical look at laws classifying by sex throughout the 1970s. Feminist and Critical Race scholars will appreciate Doherty’s insights about the initial whiteness of the Institute and the implicit race and class assumptions about its likely applicants.
The vital role the Institute served in providing space and money for the Equivalents and other talented women is made evident from Doherty’s sketch of the “ambient” misogyny in the late 1950’s world of poetry, when Sexton and Kumin, along with Sylvia Plath, sat in the classroom of poet Robert Lowell at Boston University. (Pp. 22-27.) Lowell divided writers into two categories, “major” and “minor;” “almost every female poet was a ‘minor’ writer, with a few exceptions.” (P. 28.) Further, when the Institute opened its doors in 1961, full coeducation at Harvard and other traditionally male-only Ivy League Schools was controversial and years away. The Institute’s woman-centered world, by comparison, provided “the Equivalents” and their colleagues the opportunity to hold seminars to discuss their work.
Among the first class of 24 women, the “vast majority” had children. There was only one single woman, Alma Wittlin, an educational psychologist. Doherty reports: “it was a rare thing to be a single woman in 1960—only 8 percent of women over twenty-five had never been married—and it was not easy,” given “social convention.” (P. 93.) There were no women of color in the Institute’s first class of scholars: they were “white, well-off, and except Sexton, highly educated,” although from diverse disciplines. (P. 92.) As Doherty observes, a program “pitched as part-time employment” did not have in its purview the needs of women who were full-time (underpaid) wage-earners eager for financial assistance or child care. (P. 69.) Doherty suggests that imagery of avoiding “stagnation” and taking “initiative” reflected a “default white perspective” that would have seemed inapt to many Black women. By comparison to White women, in the 1950s, the number of Black professional women was increasing—outpacing Black men, proportionally—and “upwardly mobile” Black women faced different challenges in combining work and performing domesticity. (Pp. 69-70.) The selection committee did not explicitly consider either race or economic circumstances. Nor was there comment on the racial dynamics of the care economy that “facilitate[ed] female creativity”: “stipends . . . often passed from the white women receiving Radcliffe’s largesse to women of color, who provided child care and household help so that scholars could work.” (P. 264.)
Of the five “Equivalents,” Tillie Olsen, the most “politically conscious—and politically active,” was “unnerved” by the Institute’s whiteness. Her time at the Institute helped to germinate her later book Silences, about how the various obstacles women writers experienced contributed to their comparative absence; her working-class background led her to champion neglected working-class female writers as well as women of color. By the second half of the 1960s, as Black female students at Radcliffe protested for “increased racial representation,” the Institute also “diversified its group of associate scholars,” beginning in 1966, with playwright and novelist Alice Childress. (Pp. 264-65.) In 1971-73, while at the Institute, 27-year old Alice Walker worked on her novel Meridian and discovered and began championing Zora Neale Hurston. Olsen and Walker, who became correspondents, shared a commitment to researching and teaching women writers missing from the canon. In what became her essay, In Search of Our Mother’s Gardens: The Creativity of Black Women in the South, Walker turned to Woolf’s A Room of One Own to ask about the “genius” that must have existed among “enslaved people and among the wives and daughters of sharecroppers.” (P. 276.)
By examining the lives of “the Equivalents” before the Institute, Doherty powerfully conveys how the demands of mothering—and, in Olsen’s case, wage-earning—took them away from their art, even as they often made women’s bodies, motherhood, children, and the emotional rhythms of family life the subject of their poetry, painting, and sculpture. (P. 146.) Their time at the Institute would open doors for new opportunities and new funding, as well as greater legitimacy of this artistic focus on the personal.
The Institute ceased to exist as a woman-only program in 1999, when Harvard and Radcliffe merged and Radcliffe’s existence as a separate college ended. The well-funded successor was the Radcliffe Institute for Advanced Study, open to women and men. Doherty ponders whether the need for such women-only spaces had ended by then, noting conflicting reactions, including a recollection of the “magic” and “comfortable community” of the all-female Institute. (P. 310.) Doherty persuasively concludes that the “most important” insight of Bunting, Friedan, Walker, and “the five Equivalents” was that “women’s creative and intellectual lives are shaped by their material conditions and that those conditions must change if women are to be the artists, the writers, the mothers, and the minds that they want to be.” (P. 315.) While “a women-only space like the Institute might not be right for the twenty-first century, a time when the gender binary is increasingly challenged,” Doherty argues for adapting the Institute’s approach to the present day, asking how educational and other institutions could “better support women” and “work to eradicate gender disparities.” (P. 315.) She issues a call for “another messy experiment.” It’s a call worth heeding.
