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Rocky Mountain News DOMESTIC VIOLENCE SERIES

"BATTERED JUSTICE"



Love, Marriage, and the Baby Carriage:
Revisiting the Channelling Function of Family Law

Linda C. Mcclain, Hofstra University - School of Law

Hofstra Univ. Legal Studies Research Paper No. 07-14
Cardozo Law Review, Vol. 28, No. 101, 2007

Abstract: 
April 2007 -- This Article revisits a significant idea at the core of contemporary debates in family law: the channelling function of family law. This idea is that a basic purpose of family law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them. Family law scholar Carl Schneider helpfully invited attention to this familiar idea in an essay published fifteen years ago. Challenges to the conventional sequence (expressed in the childhood rhyme) of love-marriage-baby carriage posed by changing social practices, rights claims made by various groups within society that lead to legislative change and judicial rulings, by technological developments in the area of reproduction, and by changes in family law toward a more functional definition of family changes provide a valuable opportunity to revisit Schneider's notion of the channelling function of family law and, in particular, how it relates to other important functions of family law. As this sequence of love-marriage-baby carriage is being altered and challenged in perhaps unprecedented ways, the question arises whether the core of ideas that Schneider identifies with the social institutions of marriage and parenthood still retains force, or whether the core is being redefined. At the heart of many contemporary debates about the state of the family and family law is the question of how to assess challenges to this expected sequence of love, marriage, and the baby carriage. The debate over same-sex marriage visibly raises this issue, as does debate over the question, Who is a legal parent?

The Article begins with several examples of current social practices that scramble the sequence of love, marriage, and baby carriage, and considers how such practices both recognize and resist the conventional sequence. It then illustrates how the notion of marriage and parenthood as social institutions and the channelling function feature in several recent judicial opinions addressing challenges to state marriage laws brought by same-sex couples or defining the boundaries of legal parenthood. It points out parallels between these judicial opinions and arguments made in public debates over marriage about the channelling function and the role of marriage in ordering or managing heterosexuality. It also highlights how the various functions of family law are in evident tension in some of these opinions. The Article concludes with several reflections about the continuing relevance of the concept of the channelling function in light of challenges to the conventional sequence of love, marriage, and the baby carriage.

Suggested Citation

McClain, Linda C., "Love, Marriage, and the Baby Carriage: Revisiting the Channelling Function of Family Law" . Cardozo Law Review, Vol. 28, No. 101, 2007 Available at SSRN: http://ssrn.com/abstract=980050

Contact Information
Email address for Linda C. Mcclain
Hofstra University - School of Law
121 Hofstra University, Hempstead , NY 11549, United States
516-463-5867 (Phone) / 516-463-6091 (Fax)


Family Law Federalism and the
Origins of Modern Divorce Law

Ann Laquer Estin, University of Iowa - College of Law

U Iowa Legal Studies Research Paper No. 06-03

Abstract:
August 2006 -- The United States Supreme Court decided a series of cases at the intersection of federalism and family law during the 1940s and 1950s. In these cases, beginning with Williams v. North Carolina, the Court applied the Full Faith and Credit Clause to disputes over interstate recognition of divorce and custody decrees. This article argues that these cases shifted the normative boundaries of state power over domestic relations and made several important changes in the law of divorce.

In implementing a new approach to interstate divorce disputes, the Court embraced no-fault and mutual consent approaches to jurisdiction over divorce, helping to clear the way for the divorce reforms of later decades. By separating the test for jurisdiction to enter a divorce decree from the test for jurisdiction over its financial and custodial aspects, the Court signaled that the incidents of marriage were a more appropriate state concern than divorce prevention. Although these cases preceded the Court's turn toward a new substantive due process approach to family law in the 1960s, the opinions evidence a strong concern for the individual interests involved in marriage and divorce, and this concern is central to the Court's redefinition of state power over divorce.

Suggested Citation

Laquer Estin, Ann, "Family Law Federalism and the Origins of Modern Divorce Law" (August 18, 2006). U Iowa Legal Studies Research Paper No. 06-03 Available at SSRN: http://ssrn.com/abstract=926552

Contact Information
Email address for Ann Laquer Estin, University of
Iowa - College of Law.

Boyd Law Building, Iowa City , IA 52242, United States
319-335-6850 (Phone) / 319-335-9098 (Fax)


The Impact of Divorce Laws on Marriage-Specific Capital

DOWNLOAD AT:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=911880

Betsey Stevenson, University of Pennsylvania - The Wharton School

Abstract:
May 2006 -- This paper considers how divorce law affects couples' incentives to make investments in their marriage. In particular, we analyze state changes in divorce laws that allowed divorce on demand by either spouse and removed fault as a basis for property division. These changes in family law potentially affect the incentives to make investments whose returns are partly marriage-specific, such as in a spouse's education, home ownership, children, and specialization in market versus non-market production. In order to minimize the problems caused by the endogeneity of the survival of a marriage, this paper focuses on newlywed couples in their first marriage. I find that adoption of unilateral divorce reduces investment in all types of marriage-specific capital considered except home ownership. Unilateral divorce laws - regardless of the property division laws - leads to less support of a spouse's education, fewer children, greater female labor force participation and an increase in households with both spouses engaged in full-time work. In contrast, results for home ownership depend on the underlying property division laws and suggest an increase in home ownership under no-fault property division.

Keywords: divorce, no-fault divorce laws, unilateral divorce laws, fault, household bargaining, spouse, household production, household specialization, female labor force participation, fertility, home ownership

Working Paper Series

Suggested Citation: Stevenson, Betsey, "The Impact of Divorce Laws on Marriage - Specific Capital" (May 2006).

Contact Information:
Email address for BETSEY STEVENSON, University of Pennsylvania - The Wharton School. 3641 Locust Walk, Philadelphia , PA 19104-6365, United States


Principles of U.S. Family Law

DOWNLOAD AT

http://ssrn.com/abstract=896322

Vivian Hamilton, West Virginia University College of Law

Abstract:

What explains U.S. family law? To answer this question, this Article undertakes a conceptual analysis of the legal practices that govern families. This analysis has yet to be done, and its absence hamstrings constructive thought on our family law. The Article develops a typology that conceptualizes U.S. family law and exposes its underlying principles: First, it identifies the significant elements, or rules, of family law. Second, it demonstrates that these rules reflect or embody four important concepts - conjugality, privacy (familial as well as individual), contract, and parens patriae. Finally, it shows that the concepts of family law in turn embody two distinct underlying principles - Biblical naturalism and liberal individualism. From these powerful principles, we can derive modern U.S. family law: they explain what our family law is.

With this deepened understanding of its structure, the Article next evaluates family law as the expression of it principles. It concludes that each principle is individually flawed; and, taken together, they are too often in unproductive tension. They thus doom U.S. family law to incoherence and must be revised.

At a minimum, this Article seeks to launch a much-needed debate in family law on whether our current foundational principles are desirable, or even defensible. More ambitiously, the Article aims to ground a new jurisprudence of family law that better reflects the social goals and needs of contemporary U.S. society.


Suggested Citation: Hamilton , Vivian , "Principles of U.S. Family Law" (April 2006). Available at SSRN: http://ssrn.com/abstract=896322


Contact Information:
Email address for VIVIAN HAMILTON, West Virginia University College of Law, Morgantown , WV 26506 / 304-293-6838 (Phone) / 304-293-6891 (Fax)


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"Harmony in the married state is the very first object to be aimed at."
-- Thomas Jefferson (letter to Mary Jefferson Eppes, 7 January 1798)

"I do not charge the judges with wilful and ill-intentioned error; but honest error must be arrested where its toleration leads to public ruin. As for the safety of society, we commit honest maniacs to Bedlam; so judges should be withdrawn from their bench whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the republic, which is the first and supreme law."
 --Thomas Jefferson: Autobiography, 1821. ME 1:122


 

 

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Inaugurated on October 14, 2007
Updated 02/09/2012