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Abstract:
The "culture wars," as they play out in high profile Supreme Court decisions and legislative fights over abortion and same-sex marriage, are first and foremost about family values. Central to these differences - and the focus of the article - is the fact that different families in different parts of the country are leading different lives. The one clear, organizing principle that distinguishes the two systems: age of family formation. The defining characteristic of what we term the "new middle class morality" is delay in family formation until the late twenties or early thirties. This new morality, which correlates more closely to blue state demographic patterns, affects understandings about premarital sexuality, use of contraception and abortion, the connection between marriage and childrearing, gender relationships, and the incidence of divorce (those who marry at younger ages are less likely to stay together).

By contrast, the red states, with the Republican presidential vote in 2004 corresponding to the intensity of concern over "moral values," affirm more traditional understandings that celebrate the unity of sex, marriage and procreation. Driven in part by religious teachings about sin and guilt, they emphasize abstinence, and see divorce and single parenthood as moral failings. While blue families have prospered, red families are in crisis on their own terms - red states have the nation's highest teen pregnancy and divorce rates, and the growing separation between the beginning of sexual activity and marriage makes abstinence increasingly untenable.

The article argues that the moral and symbolic conflicts between the two systems underlie the intensity of the increasing partisanship in U.S. politics which, in turn, may undermine the legitimacy of the judicial role. Cultural anxiety about changing family patterns combined with the strategic exploitation of these concerns for partisan advantage makes family issues an increasingly salient part of the political landscape. This poses challenges to the judicial role in resolving not only hot button issues such as abortion, but more prosaic individual family law cases.

The article then links the regional differences to legal outcomes, examining the laws addressing parental involvement in teen abortion decisions, same-sex marriage propositions, and the role of non-marital cohabitation in custody decisions. The most striking findings, however, address the form of legal decision-making. Blue states are not just less likely to mandate parental involvement in abortion decisions; their courts are also more likely to issue nuanced decisions that make parental involvement laws workable. On more divisive issues, however, appellate courts become much less willing to engage the issues at all, deferring instead to legislatures or lower court findings of fact. The level of partisan intensity in the background accordingly frames not just legal outcomes, but the judicial role.

Finally, the article concludes that differences between red family and blue family systems are not frozen in place, but in transition, albeit at different speeds, from an older traditional (or red state) model to a newer system likely to reflect the blue states' later age of family formation. Family courts, whether they wish to be or not, are on the front lines of the culture wars. The legitimacy of their role depends on judicial ability to guide, diffuse, and manage cultural conflict, a role which is increasingly threatened by the partisan identification of cultural conflict.

red states, blue states, gender, marriage, moral value, pregnancy, abstinence, family courts, cohabitation, custody, culture war

Abstract:
In this paper, we will incorporate gender consciousness into critiques of the rational actor model by revisiting Carol Gilligan's account of moral development. Economics itself, led by the insights that have come from game theory, is reexamining trust, altruism, reciprocity and empathy. Behavioral economics, defined as "the combination of psychology and economics that investigates what happens in markets in which some of the agents display human limitations and complications," further explores the implications of a more robust conception of human motivation. We argue that the most likely source for a comprehensive theory will come from the integration of behavioral economics with behavioral biology, and that this project will in turn depend on the insights that come from evolutionary analysis, genetics and neuroscience. Considering the biological basis of human behavior, however, and, indeed, realistically considering the role of trust, altruism, reciprocity and empathy in market transactions, we argue, will require reexamination of the role of gender in the construction of human society.

This paper begins by revisiting Gilligan, and arguing that her articulation of relational feminism faltered, in part, because she could not identify the source of the stereotypically feminine. Second, we will consider the ways in which the limitations of the rational actor model mean that law and economics could also not resolve the relational concerns that Gilligan raised. Third, we will discuss the rediscovery of gender that is coming out of the gendered results of game theory trials, and the new research on the biological basis of gender differences. Finally, we conclude that incorporating the insights of this new research into law and the social sciences will require a new methodology. Instead of narrow minded focus on the incentive effects in the marginal transaction, we argue that reconsideration of stereotypically masculine and feminine traits requires an emphasis on balance.

Neuroscience, Carol Gilligan, evolutionary, trust, empathy, altruism, autism, mirror neurons, gender consciousness, rational actor, moral development, behavioral, law, economics, biology, game theory, motivation, relational, feminism, feminist, decentralization, gender, gender differences

Abstract:
This book chapter tells the story of the contempt case brought against Elizabeth Morgan, a Washington, D.C., doctor imprisoned for her failure to produce her daughter for extended visitation with the ex-husband she accused of sexual abuse. The chapter sets the stage for the proceeding in terms of the shift in custody law in the mid-eighties from the maternal presumption to a preference for shared parenting and the discovery of and almost immediate backlash against allegations of childhood sexual abuse. It also details Morgan's parents' flight with the child to New Zealand and provides an update of what has happened to the law and the parties since the case ended.

family law, Elizabeth Morgan, Morgan v. Foretich, child sexual abuse, contempt, criminal contempt, parental alienation, incarceration for contempt, child custody, visitation, overnight visitation, sexual abuse allegations, fabrication of abuse claims

Abstract:
Alasdair MacIntyre, Michael Sandel and other critics have argued that liberalism is living off the borrowed capital of Western civilization. That is, to the extent that liberalism requires neutrality among theories of the good, the state cannot ensure that the generation of values - of strong families, hard workers, honest people, engaged citizens, and devout church members - necessary to liberalism itself will occur. William Galston responded to this critique by arguing that liberalism does not require neutrality toward the creation of values central to liberalism itself. A liberal democratic state should be able to foster liberal virtues, and, indeed, liberal states have historically done so through the regulation of sexual morality, family stability and educational quantity and content.

The issue then arises how a liberal state promotes such values in the absence of consensus not just on the values themselves, but on the institutions necessary to inculcate them. With respect to education today, for example, the United States permits its citizens to choose between public and an array of private institutions, including home schooling. On issues such as traffic regulation, however, the state must elect a single choice; it cannot have its drivers choose on an individual basis between the right or the left side of the road.

Historically, the idea of autonomy with respect to the creation of family form would have been considered an oxymoron. The traditional family of biological mother, father and child was often treated as prior to the state, if not foundational to society itself. Nor has the state been neutral among the possible forms of marriage. When the Supreme Court confronted the issue of polygamy as an expression of Mormon religious practice in the Utah territories during the nineteenth century, it had no trouble declaring the organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world.

The basis for these decisions, for the denial of autonomy with respect to the choice of institutions, and not just individual behavior, bears revisiting. What if, on questions basic to the organization of family, no consensus exists? What if different demographic and economic circumstances create different family traditions among different states? What if fundamentally different values in different parts of the country produce polarization rather than agreement on the family values appropriate for a liberal democracy?

This paper will address these issues by, first, examining the debate about the regulation of morality and distinguishing the control of individual behavior from the selection of basic institutions. Second, it will examine the polarization now taking place on the definition of family values among the states and argue that these differences reflect different challenges produced by the nature of the interaction among marriage, childbearing and the adult life cycle. Third, it will maintain that these differences, while the product of different approaches to family institutions consistent with historic efforts at secular family regulation, interact with religious as well as secular beliefs. Finally, the paper will consider what some measure of autonomy and respect for others might entail in a system in which different states adopt fundamentally different approaches toward the definition and regulation of family values.

Abstract:
Age matters. It matters legally - in giving consent for a contract, a marriage or enlistment in the armed forces. It matters practically - for renting a car, securing favorable insurance rates, choosing a date. It certainly matters biologically - we are on the cusp of understating the age-related changes in emotion and cognition. And, I will argue in this article, it matters socially. The age of assumption of adult responsibilities, because of the interaction of physical changes with social structures, may be an important marker of inequality.

This article will examine the emergence of class-based differences in the pathways to adulthood through the lens of the new biological studies on brain maturity. Accordingly, it will begin with a section that summarizes the research results suggesting that decision-making after the mid-twenties may be qualitatively different from the decisions of those in their teens and early twenties. Second, it will link the new research on brain development to changing family practices that postpone marriage and childbearing for the middle class into the late twenties and early thirties, while concentrating childbearing, if not always in marriage, in the early twenties for the rest of the population. Third, it will consider the societal support for the different family models by examining the misplaced fight over welfare reform, declining accessibility to contraception and abortion, the unequal nature of workplace support for parents, and the often hidden class subtext of debates over family values. It will end by sketching the implications for a legal research agenda attentive to the implications of age and class.

family law, children and the law, contraception, abortion, welfare reform, abstinence education, comprehensive sex education, imprisonment, age, maturity, work and family, family leave, education, gender

Abstract:
With The End of History and the Last Man, Fukuyama established himself as the prophet of liberal democracy and free markets, heralding their final triumph as the only form of governance capable of commanding legitimacy. Asked to reflect on his predictions a decade later, Fukuyama concluded that the greatest threat to liberalism comes from biotechnology because it alone has the potential to remake the human nature liberal democracy was designed to serve. Fukuyama makes a compelling case that biotechnology may produce developments that should concern us; he is ironically less persuasive in articulating a liberal democratic framework for governing the developments he fears.

This review will consider the implications of Fukuyama's work for the future regulation of biotechnology. First, the review will maintain that Fukuyama is almost certainly right that biological innovations span a continuum of developments that range from vitamins enhancing infant cognition to research unlocking the secrets of cellular aging. Second, the review will argue that the value of Fukuyama's analysis cannot lie in the precision of his prescriptions, which are in any event vague.

Finally, the review will consider the prospects for a different approach to biotechnology's governance. Many of the most controversial of the developments Fukuyama describes - use of the nuclear cell transfer technology associated with cloning, selection of embryos with desirable traits - have already been done in readily moveable fertility clinics with a small amount of private funding from a determined clientele. The potential applications with the greatest promise, however - such as genetically modified plants that address the nutritional needs of the developing world, or breakthroughs in the use of stem cells to treat paralysis, cancer, or diabetes - require public funding and/or a large measure of international acceptance. Fukuyama correctly observes that we do not have the infrastructure necessary to either promote or control these developments. Whatever our conclusions about the wisdom of the new technology, we are far behind in developing political oversight capable of even keeping track of the new developments' scientific, ethical and social implications. Reconnecting political participation with scientific innovation will be biotechnology's greatest challenge.

Abstract:
"Deep Purple" examines the impact of religion on the politics and jurisprudence of abstinence education. Abstinence education is one of the many locations (issues) in the contemporary culture wars between red and blue state values. Families who live in red and blue states are experiencing divergent life patterns, and religion affects the development of these patterns. Frequency of church attendance has been tied to likelihood of marriage, and, as this paper shows, has been profoundly influential in approaches to teen sexuality. Religion decreases the opportunity for dialogue and compromise on these issues because people use underlying values - such as religion - as a way of helping them decide about social issues such as gay marriage and teen pregnancy. For those who interpret information through a pre-existing worldview, more information will not affect the approach to deeply contested issues, particularly because part of the entrenched nature of these worldviews and religious attitudes derives from neurobiological structures

The central part of the paper examines conflicting approaches to the deeply divisive issue of abstinence education, demonstrating how religion contributes to the conflict in perspectives. Finally, the paper explores potential means for resolving these cultural tensions or at least for managing them within a federal system that maintains fidelity to the rule of law. Ultimately, the paper argues that changing religiously influenced laws, such as those supporting abstinence education, is as much a political and social process as a legal one.

Family law, law and religion, religion, abstinence education, children and the law, separation of church and state, polarization and partisanship, cultural cognition, law and politics

Abstract:
This article considers the role of the partners' relationship to each other in the context of the new California parentage cases. These rulings, which expand recognition of functional parents without marriage, domestic partnership registration, biology or adoption, attempt to ground the emerging definitions of parentage in the relationship to the child. The article, argues, however, that these rulings, because of their failure to consider the position of the initial legal parent, are on perilously thin constitutional ice. The ALI Principles of Family Dissolution, which also expand recognition of functional parenthood, tie that recognition to a combination of parental consent and acknowledgment of the responsibilities that come from the establishment of family bonds forged over time. The new California line of cases could arguably pass constitutional muster by acknowledging the role of the initial legal parent in engineering the relationship. To do so, however, in the range of circumstances arising in the lower courts requires revisiting adult understandings about the nature of parenting. Under what circumstances does shared parenting contemplate shared parental status? Does a parent who welcomes an intimate partner into her household have an obligation to the child to encourage the continuation of the bonds that are established? Do formal institutions such as marriage and adoption continue to matter and, if so, what legal role do they play? The article concludes that the failure to address the meaning of partnership weakens the practical and jurisprudential import of the new decisions. The solution will require making explicit judicial assumptions about the nature of consent to the creation of family bonds.

This article, first, reviews the new California Supreme Court parentage cases, second, examines the emerging intermediate appellate decisions testing the limits of the new jurisprudence, and third, sets forth the constitutional parameters for the determination of parenthood. Fourth, the article compares the California requirements with the ALI's provision for parenthood by estoppel, and concludes that some level of parental consent to the creation of new bonds is constitutionally compelled. Finally, the article considers some of the unanswered issues underlying the emerging cases, including the degree to which the law should distinguish between third parents who assume a parental role at the child's birth, and those who come into the lives of older children.

family law, children and the law, parentage, constitutionality, constitutional law, functional parents, unmarried parents, stepparents, domestic partners, same-sex relationships, Troxel v. Granville

Abstract:
In two recent books, Linda McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility (2006), and James Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families (2002), lay out the respective positions in the opposing family values that divide the United States Wilson maintains that family well-being requires a "powerful cultural reassertion of . . . marriage" while McClain articulates liberal feminist values that require equality within and among families. This article maintains that delayed childbearing, not marriage or equality, holds the key to the new middle class morality, and discusses the prospects for family law pragmatism in an era of values polarization.

family law, values, polarization, liberalism, marriage, marriage movement, gender, sex education, sexuality, fertility, abstinence, welfare reform, parenting

Abstract:
The ALI Principles of Family Dissolution delight in the existential uncertainty of arrangements whose legal consequences cannot be fixed until the point at which a relationship dissolves. They strive to suspend judgment, moral and practical, long enough to create a private space for the creation of relationships free from the historical weight of family regulation. When families break down, however, the Principles do not hesitate to intervene, to secure protection of the vulnerable and to provide a foundation for family members to continue on the basis of what has come before.

This paper critiques the ALI's "backward looking" jurisprudence, arguing that it is backward looking in three respects: 1) it literally looks backward toward the parties' circumstances over the course of their relationship to determine the consequences of dissolution; 2) it adopts an explicitly ex post rather than an ex ante perspective, focusing on the "costs of dissolution" rather than the terms of engagement; and 3) it is more determined to reject historical approaches to family governance than to articulate a new regime. The paper concludes that while the ALI approach may succeed as part of a family law of transition, to succeed more permanently in forging a new basis for family obligation will require making the terms of commitment clear at the beginning, and not just the end, of relationships.

Abstract:
To understand the relationship between adoption and assisted reproduction, it is important to think of adoption as a consumer institution whose product is the imprimatur of the state. Many focus on which parents the states should recognize, and acknowledge that for those parental relationships the state will not countenance, adoption is irrelevant. But the significance of adoption also disappears if biological or prospective parents chose not to invoke it. Adoption will therefore contribute most to assisted reproduction in those arenas where the state is willing to confer, and prospective parents will go to some lengths to secure state approval for their families. I predict that for assisted reproduction, this means that the most important looming conflicts are likely to involve the use of adoption to recognize unmarried parental partners.

While much of the debate about the importance of adoption to assisted reproduction has focused on the supply side, viz., the desirability of state action, that debate overlooks the other half of the issue - consumer demand. The adult participants in assisted reproduction, who have more options, wealth and sophistication than many of those involved in traditional adoptions, can arrange the birth of the child and the effective termination of the parental status of the genetic parents without state involvement. Once they do, the intended parents, who often desperately want the child, may be the only interested participants prepared to care for her. In some cases, the intended parents may want the imprimatur of the state on their transactions; in other cases, they may strongly prefer private arrangements that conceal the child's origins, and in other cases still, the state would not approve the adoption if given the opportunity to pass judgment. Given the ability of intended parents to circumvent inconvenient adoption procedures, and the unpalatable options available to the state if they do (taking a ten year old away from the only parents he has even known?), the willingness to invoke adoption procedures is essential to their success.

In considering the contribution of adoption to the determination of parentage in the context of assisted reproduction, the paper will argue, first, that the role of adoption depends on the background law of parentage. Second, it will contend that an essential element of that background law is the changing meaning of family privacy. Family privacy is a concept of relatively recent origin. It initially treated the married, heterosexual household as a privileged sphere, entitled to deference and a presumption of regularity. With the advent of more effective contraception, the legalization of abortion, and societal changes, it may now extend to a broad range of intimate relationships, which are neither approved nor prohibited. Third, it will examine how assisted reproductive practices have developed from experimentation, to treatment for infertility, to the construction of families of choice. Fourth, it will describe the circumstances in which the state has historically intervened to supervise and sanction adoption. In doing so, it will note that while legislatures often have political difficulty authorizing controversial adoptions in the abstract, courts deciding individual cases are more likely to construe broadly worded statutes to favor recognition of existing families. Fifth, it will ask when and whether prospective parents are likely to want to the sanction of the state that comes with adoption. Finally, the paper will conclude that adoption is most likely to be employed in the context of assisted reproduction, not to protect the interests of children, but to secure recognition of otherwise unsanctioned adult relationships. In a polarized era of family values, the seemingly neutral arena of adoption may offer the best prospects for legal recognition of controversial relationships. The irony is that the most public of practices is most likely to be employed where its principal purpose is to advance the autonomy of adults, and secure an otherwise unavailable zone of privacy.

Abstract:
This paper traces the history of attempts to restrict contraception, the legal events securing widespread access to contraception and their importance to a generation of college-aged women, the short-lived nature of the consensus that produced them, and the potential of the issue to serve as a rallying point for a revitalized feminism. It explores the hypocrisy of a system that, whatever its values, makes reproductive autonomy readily available for the affluent and the sophisticated and increasingly beyond the reach of the most vulnerable. Finally, it considers the potential of contraception as a reframing device, capable of exposing the hypocrisy of family values advocates whose policies disproportionately hurt the most vulnerable.

contraception, feminism, reproduction, family values, college-aged women, naomi cahn, women, health, children

Abstract:
This paper was written for a conference on third wave feminism. Third wave feminism recognizes the importance of "raising the floor," and this paper - from two second wave feminists - helps in developing an agenda for achieving that goal. After a brief exploration of two different models that we label "red families" and "blue families," this paper makes two critical points: first, it correlates the different models to the varying approaches to parental leave laws; and second, it expands our discussion of women and care beyond the workplace and child care, exploring what contributes to women's ability to care for their children (and others) - education - an outcome that is associated with deferred childbearing and higher income and the newer family model. Our conversation about third wave feminism must examine women's means of moving between classes and being able to provide better care to themselves and to others (whether it be children or parents or significant others).

family law, work and family, parental leave, feminism, childcare, employment discrimination, education

Abstract:
Understanding the biological roots of intimate behavior is a complex undertaking that involves the integration of evolutionary biology, evolutionary psychology, neuroscience, anthropology and sociology. Evolutionary biology describes theories that explain the persistence of certain types of behavior in terms of presumed evolutionary pressures or advantages, focusing on the human mind. Evolutionary biologists assume that behavior that maximizes the presence of associated genes in the next generation is the behavior most likely to persist.

In this paper, we take the growing insights that arise from the study of the biology of attachment to frame the emerging policy choices underlying the governance of adult relationships. We have chosen to focus on the idea of commitment because we see two developments operating in tandem: the biological understanding of attachment has been expanding exponentially at a time of reexamination of the importance of long-term family stability. We believe that putting the two together--integrating biological understandings with sociology - will lead to the conclusions that the tendency to form pair-bonds is a deeply ingrained part of the species, lifelong fidelity cannot be expected on a widespread basis absent substantial coercion, and long term partnership is a "compromise that children win." These conclusions, however, will always leave some questions unanswered so that they can do no more than frame the unfolding policy debates. The question of what policy choices work - and at what price - can never be answered by biology alone. A better understanding of the new scientific insights underscores the conclusion that the determination of what is "natural" produces complex and varied answers, and the most natural of human tendencies is the desire to reorder human society. Accordingly, in light of the developing understandings of human pair-bonds from both the biological and sociological perspectives, we suggest various strategies that support long-term commitment between adults.

Biology, Commitment, Attachment, Intimate behavior, Evolution, Neuroscience, Anthropology, Sociology

Abstract:
Each generation renegotiates the relationship between the sexes. We are now in the midst of a wholesale transformation. The large scale movement of married women into the workforce has fundamentally altered the bargaining position of men and women. Sex is less closely linked to reproduction; marriage is no longer a compulsory aspect of childrearing; men and women are more independent of each other; and the terms on which they are willing to enter into and stay in intimate relationships are negotiable. Most of the commentary either celebrates the greater freedom from repressive sexual mores, or decries the increased family instability and the negative effects on children. Scholars are only just beginning to chart the emergence of a new, and still evolving, set of understandings for intimate relationships and the implications of the new mores for class, race and gender inequality.

This article argues that the parameters of the new sexual mores are now in place. As with most social transformations, the new mores most prominently address the circumstances of the middle class, and play out unevenly for everyone else. These understandings, which are a pragmatic response to the interests of the middle class, aggravate class, race, and gender inequality. They do so because they undermine traditional working class reproductive strategies without the realistic possibility that the new mores can become universal. The changing economic position of women has enhanced the earning capacity of working class women just as it has middle women. This has occurred, however, without making working class women as economically self-sufficient as middle class women and without a corresponding transformation in the behavior of working class men. The result has lessened the effectiveness of strategies that compelled fathers and mothers to stay together. The well-documented national increase in family instability correlates inversely with income, education, and race: the worse off the parents in socio-economic terms, the more likely their children are to experience single parent families. Ninety percent of the children in high income families live with two parents compared with twenty percent of those in the lowest income groups. This paper concludes that the statistics are a predictable consequence of the overall changes in the nature of sexual and reproductive understandings.

Sex, Gender roles, Reproduction, Child rearing, Economic equity, Sexual mores, Gender equality, Middle class, Working class, Family instability

Abstract:
Not too long ago Property Law was in danger of becoming a dinosaur. What has brought Property back from the brink of first year extinction is the continuing importance of "the thingness of it." The classic account of Property's distinctiveness is that the legal relationships between people are mediated by their relationship to a thing. When the "thing" is important, or the allocation of rights uncertain, Property becomes the stuff of struggle, philosophy and the first year introduction to law. When the allocation of rights becomes so settled that the course focus shifts too completely to the mindnumbing welter of real estate transactions and land use regulations, property as a unified and distinctive concept loses its way.

At the present time the allocation of property rights and the creation of a structure for governance is again engaging the legal imagination. The first year course accordingly examines the question "what is property" in greater depth and considers how the allocation of property rights governs new technologies and the relationships between those involved.

This essay examines these materials, and explain how they frame the way we teach the rest of course. It emphasizes, first, how we use Johnson v. M'Intosh, the Native American land rights case that now opens many property texts, to introduce the idea that property regimes are legal constructs, chosen rather than ordained within particular contexts. Second, it examines the messages that come out of the wild animal cases and compares them to the similar conclusions that come from INS v. AP. and the intellectual property challenges involving Bette Midler and Vanna White. Third, it discusses Moore and Hecht, and the contrasting ideas of property and contract. It ends with the frozen embryos cases and Shack, and the continuing tensions between public policy and the allocation of private interests.

Property Law, Property Rights, Governance, Land Use, Teaching, Contract, Property, Public Policy, Private Interests, Allocation

Abstract:
The Birth of Surrogacy in Israel, operates on three levels. The first is a straightforward account of Israel's adoption of legislation establishing a state-sponsored surrogacy program. To allow surrogacy to proceed, Israel had to grapple with its normative underpinnings and the circumstances in which it was to be conducted. The resulting legislation goes farther than any other in embracing surrogacy, and providing comprehensive legislation overseeing and regulating the practice.

Second, the legislation spurred a far-reaching public debate in Israel, and the book provides a framework for this debate through discussion of the transformation of the relationship between home and market. The family was once viewed as the repository of the human values of warmth, affection, intimacy, love, and set in contrast to the formal, self-interested, arm's length relationships of the commercial world. Surrogacy invades the domestic world, the family becomes the creation of the marketplace, and children come into being as the product of contractual arrangements between perfect strangers.

The book's third level, however, provides an intricate account of the creation of new understandings to guide the practice. If commodification has invaded the private space of the family, so too can values associated with warmth, affection, intimacy, love find their way into market transactions. The exploration of the Israeli enactment of surrogacy legislation occurs in the context of a globalized market for fertility services.

This review first examines the nature of surrogacy, the changes in the practice since the American case of Baby M first captured public attention, and the debate over whether it should be permitted. The review then considers the forces that shaped the Israeli legislation. Third, the review weighs Israel's potential for success in creating shared, appropriate, and enduring values about the conduct of the practice. The review ends with a discussion of the role of state supervision in constructing a viable ethical framework for globalized and competitive market transactions.

Abstract:
Adoption stands beside marriage as the most public of family institutions. It confers the imprimatur of the state on the transfer of parenthood from one legal parent to another. It does so in the name of protecting children's interests. Because adoption confers state approval, publicly with the full force of the law, it carries societal symbolism that extends well beyond its impact on any individual family.

This article places adoption within the framework of our understanding of public and private spheres. It examines how assisted reproductive practices have developed from experimental treatment for infertility to the construction of families of choice, and how the changing role of assisted reproduction produces new challenges for the determination of parenthood. It describes the circumstances in which the state has historically intervened to supervise and sanction adoption. The role of adoption operates in tandem with the background law of parentage. Adoption succeeds in transferring recognition from one legal parent to another; it is less well designed to resolve uncertainty about who is a parent in the first place.

This article concludes that adoption is most likely to be employed in the context of assisted reproduction, not to protect the interests of the child, but to secure recognition of otherwise unsanctioned adult relationships. In a polarized era of family values, the seemingly neutral arena of adoption may offer the best prospects for legal recognition of controversial relationships. The irony is that the most public of practices is most likely to be employed where its principal purpose is to advance the autonomy of adults, and to secure an otherwise unavailable zone of privacy.

Adoption, Marriage, Family, Parenthood, Reproductive practices, Assisted reproduction, Family values, Privacy

Abstract:
This article uses the example of an Australian fertility clinic's efforts to recruit sperm donors from Canada to explore the issue of how ethical understandings can be built into market infrastructures. Australian fertility clinics lack sufficient sperm donors to meet current demand in part because of two ethical principles built into Australian law: a ban on payment for gametes and an insistence that sperm donor identity be available to the resulting child when the child reaches an appropriate age. The ethics oversight committee in New South Wales was willing to relax the first principle to permit the payment of substantial expenses to Canadian donors in order to uphold the second principle of mandatory identity disclosure.

While it is still unclear whether these efforts will succeed in recruiting many donors, this article treats these practices as a case study in the creation of ethical understandings pertaining to the use of new technologies. Fertility services have been expanding as part of a global market in which the infertile can comparison shop on the internet, and arrange delivery of sperm through overnight express. At the same time, the use of such services is subject to a welter of conflicting, and often religiously driven, regulations. Under what circumstances are the resulting markets likely to lock in ethical norms, and under what circumstances are they likely to develop in accordance with the lowest common denominator of consumer preferences?

This article identities four axes to examine in determining the efficacy of efforts to instill new ethical understandings. The first regulatory decision is the one to permit or ban the enterprise. We consider the circumstances in which bans are most likely to create unregulated underground markets that produce wholesale circumvention of the prohibition. The second is comparative regulation. Is regulation of the still nascent fertility industry engaged in a "competition in laxity" in which the jurisdiction that creates the most favorable regulatory environment captures the lion's share of the business? The third factor is subsidization. Access to subsidized health cares services is likely to persuade many to stay in their home countries if there is any possibility of securing services there. Finally, we consider the role of trust in facilitating acceptance of new norms. Canadians, for example, may be more comfortable than Australians with identity disclosure if they have greater confidence, if only because of distance, that the child will not show up on their doorsteps.

Carbone, Australia, fertility, ethics, sperm, gametes, market, subsidies, regulation, child, international

Abstract:
This paper argues that the determination of legal parenthood should fundamentally be about identity; that is, it should be seen as providing an answer to the question: to which family does this child belong?

The paper approaches the issue by, first, noting that the determination of legal parenthood has become one of the most contentious issues in family, and that this has ironically happened because of the combination of greater certainty in the determination of biological paternity, and greater instability in family relationships. The historic strategy of using the stigma against illegitimacy and the marital presumption to lock children into fixed family relationships is no longer tenable.

The paper examines then the tension between ex ante and ex post definitions of parenthood. Ex ante doctrines, such as those requiring biological parenthood, marriage or adoption, recognize parenthood on the basis the conditions that exist at the time of the assumption of parental responsibilities. These doctrines provide certainty at the expense of the failure to recognize adults who may have played a primary parental role in the child's life. Ex post doctrines, such as de facto or psychological parent, affirm parental standing on the basis of functional relationships in existence at the time of the dispute. They have been criticized for opening the door to recognition of a potentially large and changing group of adults, without clear identification of those most likely to further the child's well-being.

Finally, the paper critiques the growing body of law applying the marital presumption, de facto parenthood, parenthood by estoppel, unmarried parents, and stepparents. The paper argues, first, that biology matters even if it is not the only thing that matters; identification of biological parents contributes to a firmer foundation for the recognition of others. Second, the paper maintains the relationships between the adults are important; recognition of functional parents, if parenthood entails a permanent commitment to the child, requires something more than a casual relationship with a legal parent. Third, the paper considers the possibility of "unbundling parenthood," that is, of considering support, custody and identity as separate issues that may produce different results.

The paper concludes that recreation of legal parenthood as a constituent of the child's lasting identity requires adult acceptance of permanent responsibilities. This, in turn, means that the law should be designed to prompt a closer correlation between the ex ante institutions and the actual assumption of parental responsibilities.

Abstract:
Family law is in a period of pervasive uncertainty. The changing technology of assisted reproduction has called into question the definition of the most basic of family relationships - the meaning of motherhood. At the same time, legal changes in the relationship between marriage, biology and paternity have led to rapidly changing definitions of fatherhood that vary from state to state, and year to year. Changing expectations in marriage have increased interest in ante-nuptial and even post-nuptial agreements that specify the parties' understandings and attempt to govern their affairs in the event of dissolution. Life and technology are changing so quickly that traditional family law methods are insufficient to fulfill the desire of partners for certainty in their relationships - whether they seek recognition of unconventional parenthood, decision-making power over fertilized eggs, a pre-divorce determination of property rights, surrogate birth motherhood, or legal regulation of an unmarried partnership.

This article provides a systematic examination of the procedures necessary to combine contractual bargaining with counseling, mediation, and family court or administrative approval. It begins with consideration of the debate over the role of contract in family law and the precedent provided by ante-mortem probate. It concludes that neither private bargaining nor publically mandated status arrangements can fully govern modern family arrangements on their own, and that the three procedures we have identified, which have never been used in tandem, offer an innovative way to use the law to shape the beginning, rather than the end, of intimate relationships.

The article maintains that any family matter that can be litigated after a dispute arises is likely to be amenable to pre-dispute determinations that offer a foundation for faster, cheaper, and more amicable resolutions. We believe that the procedures we are proposing are the missing piece of the efforts to make family courts a constructive part of family life and a more active part of the response to the role of changing technology and changing understandings in family arrangements.

Abstract:
This article addresses the role of the genetic tie in the parent-child relationship through three lenses. First, we argue that the legal system recognizes children's rights not by treating children as autonomous actors, but by identifying the individuals and institutions most likely to promote children's interests and encouraging their success. Second, we examine the existing empirical and socio-biological literature that considers the importance of biological relationships, and concludes that it demonstrates not a single set of answers, but a set of tradeoffs. The well-being of young children, particularly in societies less prosperous than our own, may depend on the mother's ability to enlist a partner's material support. The long term involvement of the partner in the child's life may then depend not just on the strength of the bond with the mother, but on the certainty of paternity. Paternity inquiries, however, may contribute to the instability of the mother's existing relationships, undermining their short term benefits for the child's well-being. Third, we consider recognition of these tradeoffs in the law of paternity, and conclude that existing decisions present an incoherent and fractured body of family law. Finally, we propose mandatory paternity testing as an alternative. The proposal would encourage all of those seeking recognition of paternity at a child's birth to undergo testing; those who waive the tests would be permanently estopped from denying fatherhood. We conclude that in an era in which biological connections are increasingly easy to determine, parental relationships should be based on truth and certainty rather than convenience. And while we recognize that biology should not always determine legal parenthood, we also believe that partners should be fully aware of when they are - and are not - assuming the legal responsibilities of the role.

Abstract:
In this paper, I explore the tradeoffs that underlie the ALI's proposed system of compensatory spousal payments in light of the tortured history of alimony. I maintain, first, that the ALI is certainly correct that the existing law, with its emphasis on need, is incoherent at best, and insulting or archaic at its worst. Second, I agree that the idea of compensation provides the alternative to need that has the best hope of bringing a measure of coherence to the existing cases. Third, however, I show that at the core of the provision for compensatory payments lies a fundamental dilemma: the refusal to recognize fault necessarily limits the provisions for compensation, not just with respect to the non-financial losses the ALI principles acknowledge, but with respect to some of the financial concerns at the heart of the proposals. I nonetheless conclude that bringing fault back into the system is too costly to contemplate for all kinds of reasons, but that the failure to acknowledge it directly will fuel - and should fuel - resistance to some of the ALI principles.

The result of this analysis is be an ironic one. I maintain that for a project that seeks to articulate "principles" and "emerging legal concepts," seamless consistency is not an appropriate objective. Instead, the question we should ask is whether the ALI has done justice to the interests at stake in modern divorce, and whether its principles provide an appropriate basis for compromise among irreconcilable positions. In this process, the internal inconsistencies of the principles may become virtues, and the quest for coherence an obstacle to success.

Abstract:
This book charts the intellectual history that has taken us from partners to parents as the central focus of family regulation. The first section undertakes an intellectual survey that frames the four corners of the debate about the future of family. It starts with theorists Gary Becker, who won the 1992 Nobel Prize for extending economics to a realm of romance and altruism, and Susan Moller Okin, who replaces the economists' emphasis on efficiency with justice as the basis for critique. Becker and Okin, taken together, explain how changing marital roles guarantee the greater instability of the nuclear family. They differ on the continuing importance of specialized roles to family well-being. Cornell Law professor Martha Fineman and Clinton domestic policy advisor William Galston then examine the alternatives. In the midst of disagreement about everything else, both craft family policies premised on obligation toward children as the only coherent contemporary possibilities.

The middle third of the book examines the empirical evidence on which the debate is based. It begins by considering the historical research that links (and sometimes unlinks) family change to industrial organization, reviews the distinctive history of the African-American family, and places modern developments in perspective. It then focuses on what sense can be made of the sociological and psychological research that ties children's well-being to family form, considers the racial and class dynamics involved in family transformation, and weighs the implications for a renewed model of family obligation.

The final section links the intellectual debate to the legal developments. In many ways, the legal system has already implemented the most radical proposals by deregulating the relationship between husband and wife, eliminating the distinctions between marital and unmarital children, writing a detailed code of parental obligations that extends from child support to joint custody schedules to prohibitions on abuse, and changing the shape of Aid for Families with Dependent Children (AFDC). This section considers whether, taken together, the reforms offer a coherent way of thinking about provision for children. The book concludes that, just as the older system relied on an integration of public regulation and private norms, so too will the success of the new era depend on popular acceptance of responsibility toward children. The unfinished revolution -- and a central focus of the gender wars that rage unabated -- is resolution of the terms on which partners need to relate to each other to make parenting work.

Abstract:
Modern family law has undergone a revolution. Lenore Weitzman heralded its initial stages in her examination of the fall of fault-based divorce. The Supreme Court ushered in the second stage when it dismantled the distinctions between marital and non-marital children. The third stage involves rebuilding family obligation on the basis of the ties that remain: those between parents and their children.

The Family and Juvenile Law Section of the Association of American Law Schools devoted its 1999 annual program to the exploration of a child-centered family law jurisprudence. The program focused on two initial questions:

-- Are children's interests better served by securing the involvement of both parents or by support for their primary caretaker?

-- Are children's interests better served by state intervention designed to vindicate children's rights independently of their parents or by state support for the family unit?

Karen Czapanskiy and John Gregory address the first question. Czapanskiy argues that children?s interests necessarily depend on the well-being of their caregivers, and that recognition of this interdependency should result in giving greater priority to the needs of custodial parents, supporting the continued involvement of both parents when it strengthens, but not when it undermines, the quality of care. Gregory responds that a case by case determination of caregiving relationships would be just as indeterminate as the best interest test to which Czapankiy objects, and that interdependency theory ignores the conventional wisdom that a continuing relationship with both parents is important to children?s well-being.

James Dwyer addresses the second issue. He agrees that children's interests should be determined in the context of existing family relationships, but cautions against family court decision-making that systematically privileges parents' perspectives over those of their children. He proposes greater judicial willingness to recognize that there are some cases where the child may be better off without a relationship with a biological parent, more sensitive case specific decision-making, and a greater ability to identify parental interests with the provision of counseling, parenting classes, and other forms of state intervention rather than with autonomy alone. Greer Fox presents an overview of family research from the perspective of the social sciences. She reviews the different measures of children's well-being (physiological health, cognitive achievement, and socioemotional competence), the changing context of family life ? the increasing absence of fathers, reliance on multi-generational families, growing income inequality, and greater ethnic diversity ? and concludes that a child-centered social policy must make families central to the process.

Finally, June Carbone argues that where family once depended on the relationship between the adults, the new family law regime ties family rights and responsibilities to parenthood and concludes that parental relationships need to be built back in to the new model. Carbone reviews the often unrecognized importance of the parents' relationship to each other in recent custody cases, considers the growing body of social science literature that ties child's well-being to a cooperative model of parental support, and, maintains that a revised model of parental partnership is the missing piece of custody decision-making.

Abstract:
This paper focuses on three recent books: Hard Bargains: The Politics of Sex, by Linda R. Hirshman and Jane E. Larson, New York: Oxford University Press, 1998; The Custody Wars: Why Children are Losing the Legal Battle and What We Can Do About It, by Mary Ann Mason, New York: Basic Books, 1999; Rituals of Blood: Consequences of Slavery in Two American Centuries, by Orlando Patterson, Washington, D.C.: Civitas/Counterpoint, 1998. The first, Hard Bargains, examines sexual negotiations through the lens of game theory and other formal bargaining paradigms. Larson and Hirshman begin with a historical account of the evolution from a "Victorian" model of virtue, or what they term "unfree bargains," to a "libertine" paradigm of "unregulated bargains," to an emerging model of what they hope will be "hard bargains." For each era, they demonstrate the ways in which prevailing law, philosophy and ideology empower or disempower the players in their sexual bargaining, and they link these bargains to the relative positions of men and women in society. At the end, they propose a new code to govern rape, prostitution, and sexual partnerships, but they intentionally leave out of their discussion the issue that has been central to previous historical orders: the relationship between sexual bargains and provision for children.

Mason, a professor of law and social welfare at Berkeley, picks up where Larson and Hirshman leave off. Her thesis is that the custody wars between the adults and the accompanying legal insistence on equality between mothers and fathers shortchanges children. Mason claims that, while mothers need no longer marry to escape moral taint, and while they can leave unhappy relationships with a greater claim to financial support than they once had, they are now held hostage to father?s "strictly biological rights, unrelated to actual parenting or even marriage." She would redress the imbalance by giving greater weight to children's interests, but the question she does not directly address is the one that concerns Hirshman and Larson: how would the revised custody rules she proposes affect the ongoing relations between mothers and fathers, and how do the background rules influence men and women's expectations about the terms of their affairs?

Patterson's book, Rituals of Blood, is the second in a trilogy taking stock of race relations with the waning of the civil rights era. The Harvard sociologist's controversial conclusion is that the fundamental problem now facing Afro-Americans (Patterson's term) is the problem of gender relations: of defining appropriate roles for men and women, fathers and mothers, intimate partners. He documents a crisis in the Afro-American community in terms of the decline of marriage, increasing isolation and loneliness, and gender hostility. He calls for more interracial marriage, and he takes black men to task for much of the behavior that has alienated black women. In the end, however, the questions his book raises, but cannot resolve, are the same as those present in the other two books: how are understandings about the acceptable bases for gender relationships shaped and maintained? How essential is cooperation between fathers and mothers for the well-being of the next generation? And how are we to encourage parents' continuing investment in their children in an era that leaves adults freer to change the terms of their arrangements at will?

This paper draws on these three books - and their insights from game theory, history, philosophy and sociology - to argue that recent changes in sexual morality, gender roles, and the societal boundaries between home and market have undermined the forces that kept partners together. It will then examine the role of family law in recreating shared understandings between intimate partners, and conclude that the custody law Mason deplores is the anvil on which much of the new code is being forged.