Abstracts & Papers

[Paper]

In preindustrial society, marriage was not meant to fulfill the emotional needs of the individual. Instead marriage was part of the family economy and family network, and was meant to strengthen the position of the family, to build alliances, to stabilize or improve the status, wealth and power of the family. It was only in the 18th and 19th century, and in Western societies, that romantic love became the normative foundation of marriage. Today, in the West,  marriage is supposed to be a “love match”, an emotional bonding between two individuals.

Yet in other parts of the world marriage patterns continue  to follow a different  script. As a result of globalization and migration, the instrumental value of marriage even gains new importance. Two trends play a major role here. On the one hand, as economic and political conditions in many regions of the world deteriorate, many people build their hopes on migration. On the other hand, many  Western countries try to limit migration by setting up very restrictive  rules, with  family unification becoming the last chance of entry. In response to this clash - between expanding hopes and increasingly restrictive regulations – young men and women in many parts of the world redirect their wishes and ambitions. They set their hopes on marriage, or more specific: on marriage suitable to migration rules. Here the first imperative is, the candidate must be a native of the West, or a legal resident in the West.

My paper aims at:

·         analyzing this new pattern of spouse selection

·         discussing its context, causes and consequences,

·         pointing out various national strategies to reduce immigration by changing the  regulations in respect to family reunification

·         discussing various ways in which migrants-to-be adapt their personal lives life-styles to the new regulations of family reunification so that their hopes will come true and they may gain entry to some Western country.

[Paper]

This paper considers two types of financial obligations that arise from parenthood.

The first stems from the parent-child relationship and considers what a parent owes a child in terms of financial support. The second concerns the financial obligations between adults who share parenthood of a child, which is to be distinguished from obligations that may arise from their relationship, if any, as partners.

                The paper addresses the assumptions, the rationale, and the policy considerations underlying each of these two types of obligations, focusing specifically on the latter. It submits that adults who plan to share parenthood agree to share the costs of raising children, including  the “price” they each have  to pay in terms of career, earning capacity, and also leisure time, and then analyzes different legal schemes—mainly child support, property division, and alimony—in view of these two types of obligations. 

A further question concerns the connection between these two types of obligations and their application to various family and parenting situations, from traditional divorce (with special attention to divorce following a short-term marriage), through parenting in same-sex families, shared parenthood by agreement without coupledom, and unplanned shared parenthood (unwanted by one of the parties).

I am particularly interested in the new family forms that have emerged from the social and demographic changes of the 20^th century – families formed by cohabitants, in particular.  My paper will address the question of what the appropriate legal relationship should be, if any, between cohabitants and the children of their partners to whom they are not biologically related.  This issue has thus far been litigated primarily in the context of same-sex, especially lesbian, couples; and this is the context that has attracted the most scholarly attention.  Without neglecting that context, I will direct my primary focus to the relationship between opposite-sex cohabitants and their partners’ children.  About 50 percent of the children currently living with cohabiting couples in the United States are biologically related only to one of the two cohabitants, with the other cohabitant in the position of a stepparent if they were married.  With some 13.5 million individuals cohabiting as of 2008, 40 percent of them with children in the household, this issue affects a substantial number of adults and children but has not yet been adequately theorized by our family law.

                This topic will develop an issue I present briefly in my book, Unmarried Couples, Law, and Public Policy (Oxford 2010), where I describe the legal difficulties that can be confronted by cohabitants with respect to their children based upon research into the somewhat skimpy case law.  In this paper I will examine this issue not only in light of a critique of the case law but also in view of the literature about children’s relationships to their stepparents and in the context of the growing literature about children’s rights.  I will compare and contrast the situation of the opposite-sex cohabitant in this respect with that of lesbian mothers and of grandparents. (The law applicable to cohabitants in the United States has been developed thus far primarily in various third-party custody and visitation statutes, many of which concern grandparental visitation and are thus subject to the Supreme Court’s decision about grandparents in Troxell v. Granville).

                I will explore what the appropriate legal standard should be for custody, visitation, and support; whether it should be a special standard or should be assimilated to that applicable to married parents; the theoretical grounding of the recommended standard; and what its impact would be upon family law as a whole.

Some mothers seem to rely on formal legal relationships to help their children to thrive despite socioeconomic difficulties.  Some, and particularly African-Americans, seem to be able to function well as mothers without the community support provided by marriage and adoption.  This paper will seek to see to what extent religious adherence or religiosity take the place of formal legal families using various sources of data on American mothers in general, Catholic mothers, African-American mothers, Hispanic mothers, and Muslim mothers.  The interaction between these factors is complex:  in some family types (the majoritarian culture in America) the formal structure predominates.  In others, especially the African-American families noted above, religious belief seems to govern outcomes.  In Hispanic families, income seems more important than either formal structure or religious beliefs to mothering outcomes, and to the extent identifiable from the data, American Muslim families seem to work the same way, and immigration status may be important as well.  These empirical outcomes will be analyzed in the context of existing literature and the comparative work done in other Western countries.

The theoretical model for family law policy I wish to propose I call the “non-prescriptive” model.

This is contrasted with the following two models:

1. The “delegation” model, wherein the state expressly or tacitly gives the force of state law to norms and decisions made within families.

2. The “state agency” model, wherein the state prescribes and enforces as state law the norms that and decisions made within families.

In contrast, the “non-prescriptive” model rests on the following premises:

A. The obligations which family (or other group members) feel they owe to one another by reason of their family (or group) membership alone should (in general) not be enforceable by the law of the state. However, subject to important restrictions, in particular the state’s commitment to human rights and to an open society, the state’s law should respect the performance of those obligations and allow legal consequences to follow from their performance.

B. The obligations set by the state’s law between family or group members should primarily rest on principles of individual justice supported by the state’s legal system. However, the state may create legal obligations between family members based on family (or group) membership alone where this is necessary to prevent clear harms to members of the family (or the group) or to other groups (including wider society).

The paper will argue for this position.

I will both describe, and discuss the implications of, data collected by my coauthors (Sandy Braver and Rob MacCoun) and I over the past three years in an ongoing empirical project examining the factors that influence people’s judgments about the appropriate resolution of family law disputes. Our respondents, who now number in the thousands, are an excellent cross section of the population of Tucson, Arizona. Each respondent has spent about a half-hour completing a carefully constructed questionnaire that asks them to rate each of a series a statements setting forth potentially relevant decision principles, and to tell us how they would decide (doing whatever they believe right) each of a series of carefully constructed cases requiring a judgment on either the amount of child support, the amount of alimony, the allocation of property, or the allocation of custodial time. Each study (set of respondents) in the overall project typically focuses on just one kind of family law issue. Our early methodological studies explored how the answers our respondents gave to substantively identical questions were affected by the question’s format or phrasing; we then settled on particular formats that were used consistently from then on. Factual changes in the case vignettes presented to respondents

were systematically varied to reveal (to us) the policies implicit in their case judgments; these could be compared with the policies they said they favored in their evaluations of decision principles. The study used both within-subject (repeated measure) designs and between-subject designs.

Our first paper from this project, Intuitive Lawmaking: The Example of Child Support, was published in early 2009 in the Journal of Empirical Legal Studies. A second article on child support, a third on child custody, and a fourth on the methodological study, are currently under review. Beyond these four papers, we have a wealth of additional data on child support judgments, as well as on alimony and property allocation judgments. At this conference I will present some data that has not yet been published, as well as offering an overview of some of the themes that emerge from looking broadly at the full data set. I cannot yet be certain of which data I will present or which themes I will discuss, as the range of possibilities is great–we are currently preparing a proposal for a book that brings them all together. My current prediction, however, is that the essay for this conference will describe unpublished data showing how the judgments people make about alimony and child support amounts are affected by the marital status of the partners in the vignette (married or cohabitors), the duration of their relationship, and (for alimony) whether they had children, across a series of varying assumptions about the partners’ incomes. I may tie this to other data we have not yet published that explore how

judgments about child support are affected by the remarriage or relocation decisions of either parent, or I may tie it to data on how our respondents’ answers are affected by their gender, the gender of the custodial parent in the vignette, the interaction of the two, or whether the respondent has been married or divorced. Possible themes include a) the contrast between the relatively wide dispersion among our respondents in their judgments of the absolute value of the monetary awards they would make, and the great consistency across respondents in their relative judgments (the amount by which they adjust the award to take account of a factual change), and b) the willingness of respondents to make trade-offs between incommensurable values, such as the amount of child support and the custodial parent’s potentially questionable decision to relocate with the child.

My paper will examine the impact that the reproduction revolution -to date and in the foreseeable future-is having on the family and on the values this is said to uphold. The moralising role of the state will be scrutinysed. Reference will be made to several legal systems, but the principal focus will be on law-making in the U.K., in particular on the 2008 Human Fertilisation and Embryology Act. Amongst the issues I will address are-------

          Fertility treatment for single women and lesbians

          The construction of parenthood

          The spectre of the designer baby

          The recognition of saviour siblings

          The rights of gamete providers where is conflict between them

          Surrogacy arrangements

Canada’s leadership in relation to the recognition of same sex relationships in family law and social policy is second to none and global in its reach.  We have married gays and lesbians from around the world.  Despite many legal successes on the ‘family front’ more generally, the precise nature and implications of the victories have yet to be more critically analysed.   I am interested in engaging with feminist and other analyses that have emerged in the context and aftermath of the legal campaigns to recognize same sex relationships, including ‘equal’ marriage.

This is a deeply contested terrain:  feminist legal scholars informed by political economy argue that recognition of same sex relationships in Canada sits compatibly with neo-liberal social policy and restructuring of the welfare state; from the neo-conservative and religious right, the critique is that the fundamental nature of family has been undermined, facilitating the legal recognition of polygamous marriage, among others. Finally a third critique takes the view that the legal recognition of same sex marriage in Canada reflects and reinforces a historically patriarchal, heterosexual institution that should be jettisoned rather than embraced. 

These arguments raise issues and illustrate more generally the tensions in state and legal construction and regulation of familial relations – historically and in the current context.  In this paper, I will re-theorize the significance of patriarchy and the relationship between patriarchal relations and private ordering in family law.  In particular, I will identify and analyse the impediments to equality posed by increasingly invisible but no less enduring patriarchal familial ideologies in order to envision forms of family law reform and state social policy that might actually improve gendered and generational familial relations and transform the social landscape more generally.

In 2000, I gave a plenary address at the 10th World conference of the International Society of Family Law, which was subsequently published as “Law Reform by Frozen Chook: Family Law Reform for the new Millennium” (2000) 24 Melbourne University Law Review 737-755.  Five years later, I published “Frozen Chooks Revisited: The Challenge of Changing Law/s” in Rosemary Hunter & Mary Keane (eds), Changing Law: rights, regulation and reconciliation, Ashgate Publishing: Aldershot (2005) 49-76.  In calendar year 2005 (academic years 2004/2005, and 2005/2006), I was a Visiting Professor at Cornell Law School where, amongst other things, I taught family law. 

Having worked for many years from both theoretical and policy oriented perspectives on family law reform, I was struck by the enormous differences in family law policy making in the United States and in Australia.  In Australia, as a member of the (federal) Family Law Council (1992-1996), I had been involved as a policy maker and subsequently as a researcher (with an Australian Research Council (ARC) grant, and also an ARC linkage project (with the national Family Court of Australia), both looking at the family law reforms of the mid 1990s, and became only too aware that while there was significant work at the level of research and policy, various political and ideological barriers have made it difficult for family law reform to proceed in an informed evidence-based manner in Australia.  The most striking thing for an (Australian) outsider to observe about family law in the United States is that family law is largely regulated by the states and there is a wide diversity across those fifty states. For example, there are still some states (such as New York) where divorce requires proof of fault whereas in other states, no fault divorce has been the norm for nearly forty years.  While there have been some attempts at national frameworks in the United States (the American Law Institute (ALI)’s Principles of the Law of Family Dissolution 2002: see http://www.ali.org/ali_old/stu_fam_dis.htm being the most notable), it would be hard to say that there is such a thing as “US family law”. 

Despite that enormous diversity, there is one means of sometimes radical family law reform in the United States: the legal changes brought about by litigation such as the Goodridge case (Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003)), which led to Massachusetts being the first state in the US to make marriage available to its same sex citizens.  Teaching family law in the United States requires considerable scrutiny of constitutional law and constitutional litigation as so many of the ways in which family law has been changed or reformed have followed constitutional challenges in the Courts.  This is fundamentally different from approaches to family law reform in Australia, which are highly politicised and heavily influenced by lobby groups, in particular, fathers’ rights groups.

After reflecting on family law reform in Australia in 2000 and in 2005, it seems only timely in 2010 to broaden the inquiry and to reflect further on reform processes in family law, and in particular, what jurisdictions such as Australia can learn from the litigation focussed approach to legal change in the United States.  For a range of historical reasons, litigation has not been a law reform strategy in Australia, largely because of the absence of a bill or charter of rights (see Graycar and Morgan, “Equality Rights: What’s Wrong” in Hunter (ed), Rethinking Equality Projects in Law: Feminist Challenges, Hart Publishing: Oxford (2008)). 

I propose to co-author this paper with a US collaborator who has particular expertise in both constitutional law and family law.  The US collaborator is Ruthann Robson, Professor of Law and Distinguished University Professor at the City University of New York.  Professor Robson is a well known authority on US family and constitutional law, especially in the area of "alternative families."  One of her articles, “Judicial Review and Sexual Freedom” 29 U. HAW. L. REV. 1- 47 (2007) (lead article), concerns debates about judicial "activism" in same-sex marriage cases, contrasting the US, South Africa, and the Netherlands.  Professor Robson is also familiar with issues about family law theory, policy and practice in a range of jurisdictions, including Australia, having been a plenary speaker at the Australian Law Teachers Conference in 1996, and a Collaborative Research Fellow in the Law Faculty at the University of Sydney in 2006-2007.