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Abstract:
All over the industrialized world, marriage is in decline. Cohabitation, which has waxed as marriage has waned, is a much less stable and more varied relational form than marriage. Because of its relative instability and variability, cohabitation presents public-policy and fact-finding challenges that formal marriage does not. Formal marriage is also associated with a range of health, wealth and happiness benefits to adult partners and their children. Because formal marriage and childbearing within such unions offer public advantages that informal unions do not, public policies designed to encourage individuals to delay childbearing until marriage are desirable. So are policies that encourage couples who have marital understandings to formalize their unions through ceremonial marriage. In order to effectively design such policies, however, we need to understand why formal marriage is in decline. This paper critically examines current economic and cultural explanations for these phenomena and analyzes the public policy implications of these explanations. It concludes that well-designed policies that promote the socioeconomic conditions in which successful marriage flourishes, reduce economic disincentives to marry, and offer clear dividing lines between formal marriage and cohabitation are all supported by the evidence. These policies do not have the capacity to bring back the world in which marriage and marital child-bearing were almost universal, but they may have the capacity to make a difference at the margins. They do not appear to hold any potential for causing harm and they may also promote other improvements in family relationships and functioning.

marriage, cohabitation

Abstract:
Can - should - the United States abandon the laissez-faire, market-based approach to reproductive technology in favor of a regulatory model? This article argues that regulation is permissible and that it is sometimes desirable. It also lays out a framework for developing regulatory standards that relies on related areas of law, arguing that because we permit adult patients to undergo risky experimental treatments, we should permit adult ART patients to accept similar risks or adopt uniform rules that proscribe the use of experimental treatments in both contexts; because we allow would-be parents to abort fetuses with undesirable characteristics, we should allow would-be parents who utilize ART to select out unwanted fetuses with undesirable characteristics or adopt rules that uniformly forbids some or all trait selection; because we do not allow parents to subject their children to serious medical risks, we should not allow would-be parents using ART to subject their future children to serious medical risks; and because we outlaw commercialism in transfers of body parts and human beings, we should outlaw commercialism in transfers of sperm and ova or uniformly permit commercialism.

The article concludes that, because ART involves complex, rapidly evolving medical procedures, a quasi-public regulatory entity like that which the federal government has already established in the area of organ transplantation appears to be the most promising regulatory structure and one that fits well within the decentralized U.S. medical-care system.

reproductive technology, IVF, artificial insemination

Abstract:
Marriage has become controversial. Some experts argue that marriage is fundamental and foundational. In their view, the decline of marriage lies at the heart of a wide range of social problems; these experts urge state efforts to revive marriage and promote marital commitment. Other experts argue that marriage is merely a label; in their view, the state should not only eschew marriage promotion, but abandon marriage regulation altogether.

Both the pro- and anti-marriage perspectives have attracted policymakers. In the United States, the Bush administration has recently launched an initiative in support of healthy marriages that builds on earlier welfare-reform legislation designed to promote marriage among the poor. In Canada, Parliament has revised both tax and old-age pension rules so that the same standards apply to married and common-law partners; the Canadian Law Reform Commission has also recommended comprehensive revision of Canadian law to avoid problems of coherence arising from marital status classifications.

Which approach is preferable? This paper analyzes the growing body of social science evidence that bears on marriage regulation and makes policy recommendations based on that evidence. It concludes that both the advocates and opponents of marriage have overstated their claims: the data demonstrate that classifications based on marriage are sometimes desirable and sometimes not; they show that formal, ceremonial marriage provides public benefits by clearly denoting the intention to assume relational responsibilities; they show that enduring, low-conflict marriage provides larger public benefits through its positive impact on the health, wealth, and happiness of spouses and their children; they also show that conflicted and short-term marriage does not offer personal benefits to either adult partners or their children.

Marriage, Cohabitation, Family Policy

Abstract:
In this article, I consider why legal reforms aimed at improving the effectiveness of state child protection efforts have failed to meet their goals and conclude that the failures stem, at least in part, from reformers' failure to conceptualize child maltreatment as a public health problem and to design a system consistent with accepted public-health practices and principles.

I find that reform efforts and legislation relied on assumptions instead of evidence and thereby underestimated the gravity of harm associated with child maltreatment, the difficulty of cure, and the cost of treatment. Moreover, the assumptions on which reformers relied derived from a simplistic, antiauthoritarian ideology that cast the state child welfare system as villain and the families served by that system as victims. This perspective both ignored the fact that child maltreatment as a serious behavioral disorder that typically inflicts grave harm long before child protection workers become involved and the limited, unreliable treatment options that are available.

I also find that both the structure and focus of current state child-protection efforts are inconsistent with standard public-health methods. The child protection system has failed to develop evidence-based treatments or even standardized diagnostic procedures. It has failed to develop an understanding of the institutional context in which treatment is delivered. It has woefully neglected prevention, the key to most successful public health campaigns. Perhaps most importantly, both federal law and local practice rely on the wrong medical model: law and practice reflect an "acute care" treatment paradigm that aims at rapid cure and exit, while all the evidence suggests that child maltreatment - for both the maltreating parent and the victimized child - is a chronic condition which requires ongoing treatment and services.

Children, parents, family law, child welfare, public health

Abstract:
The law's willingness to take account of factors that interfere with volition tends to vary in accordance with its underlying goals. The law of wills is dominated by the principle of freedom of testation; it has thus developed doctrines aimed at detecting coercive influences that interfere with the testator's free agency. The law of medical decision making, dominated by the analogous principle of patient autonomy, has not developed doctrines aimed at detecting coercive influences despite a large and growing body of evidence showing that disordered insight and major depression, two common medical conditions, often have a coercive, negative effect on treatment choice and compliance. When a patient is afflicted with disordered insight or major depression, a decision against treatment often stems from illness instead of the patient's own goals and values.

Current law fails to protect vulnerable patients whose free agency has been lost to their illnesses. These patients need, and deserve, protection from the coercive effects of distorted perception and motivation. The undue influence and insane delusion doctrines developed within the law of wills to detect and disarm coercive influences are readily adaptable to the medical decision-making context. There is a wealth of assessment protocols that offer reliable methods of detecting the influence of depression and insight deficiencies.

competence, medical decision making

Abstract:
We know that children profit from the care of two involved and cooperative parents, but can family law effectively promote these conditions? This article briefly describes and evaluates current strategies to promote parental involvement and cooperation, including altered custody standards, parent education, and initiatives aimed at enhancing family stability and harmony. It concludes that, in order to effectively promote stable, cooperative parenting, lawmakers will need to pursue many different strategies. The evidence suggests that no single strategy has the capacity to effectively promote cooperative, involved parenting after parents have separated; the evidence similarly suggests that no single strategy can channel childbearing and rearing into relationships with optimal prospects of stability and low conflict. Even a multi-strategy initiative will confront many obstacles - demographic, logistical, emotional - that will impede its effectiveness. The magnitude of the behavioral shifts that a coordinated multi-strategy initiative might produce thus remains unclear.

marriage, divorce, child custody

Abstract:
This article evaluates proposals made by the New York Matrimonial Commission aimed at reducing divorce trauma, delay, and expense. The article analyzes sources of divorce delay, expense, and litigation-induced pain and concludes that the most important are complex divorce procedures and highly discretionary entitlement rules which offer litigants very little capacity to predict their divorce entitlements or even to prepare the appropriate forms. The article concludes that the reforms proposed by the Commission - which do not attempt to improve predictability or reduce complexity - have little capacity to meet their stated goals.

divorce, marriage

Abstract:
The ALI domestic partnership proposal would partially assimilate cohabitation to marriage: based on a finding of domestic partnership, it would impose on the cohabiting couple who have chosen to avoid marriage personal obligations identical to those the couple would have incurred had they elected to marry. The ALI proposal rests on the claims the absence of formal marriage may have little or no bearing on the character of the parties' domestic relationship and on the equitable considerations that underlie claims between lawful spouses at the dissolution of a marriage. However, the research evidence demonstrates that, in the United States, cohabitation usually functions as a substitute for being single, not for being married; cohabitants thus tend to behave and view their relationships very differently than married couples.

Adoption of the ALI proposal would also produce negative effects. The proposal requires individualized fact finding and thus would necessitate time-consuming and expensive litigation that would almost certainly produce inconsistent status determinations. The proposal would introduce discordant values into the law of relational obligation and diminish personal autonomy. Because marriage is associated with significant advantages to both marriage partners and adults, the proposal also risks harm to individual interests and the public good. For all these reasons, the ALI domestic partnership proposal should be rejected.

marriage, cohabitation

Abstract:
This article analyzes the desirability of a "conscriptive" approach that bases the obligations of cohabitants on status instead of contract. This approach has been adopted in some other nations; the American Law Institute has advocated its use in the United States, arguing that marriage and cohabitation are functionally equivalent. The article examines the evidence relevant to this claim and finds that it does not support the ALI position. Instead, the evidence shows that married and cohabiting couples tend to behave and view their relationships quite differently: cohabitants are much less likely than married couples to share or pool resources; cohabitation usually functions as a substitute for being single, not for being married. Cohabitation thus does not imply marital commitment, the accepted basis of marital obligation. Nor, given its typically short duration and limited sharing, is it likely that cohabitation generally induces dependency or leads to unjust enrichment. Because of these differences, it would be unfair to impose marital obligations on cohabitants simply because a relationship has survived for a legislatively determined time period. Individualized inquiry into the nature of a couple's relationship is also undesirable as it is likely to produce highly uncertain and inconsistent results.

cohabitation, marriage

Abstract:
New technologies now make it possible to conceive a baby without sex and to both predict and witness the process of fetal development. Both commercial and delayed parenthood present difficult questions relating to the ownership of genetic material and the status of preembryos that may-or may not-become human lives. Courts and legislatures have only begun to grapple with these genuinely novel aspects of the technological revolution in reproduction. This essay briefly explores both faces of technological conception-what's new and what's not.

Abstract:
This article proposes a new model for analyzing legal issues arising from reproductive technology and uses it to develop rules to govern the legal parentage of technologically conceived children. The article critiques several approaches offered by other commentators, showing that they offer little concrete guidance in many cases and risk the introduction of discordant values into the law of parentage. In their place, it offers an "interpretive" methodology which, by relying heavily on current rules governing parentage determination in other contexts, would assimilate technological conception within the broader law of parental obligation. Professor Garrison argues that cases of sexual and technological conception should be governed by consistent rules because, despite mechanical difference between these two methods of reproduction, there are no significant differences in the parent-child relationships that they produce. The article demonstrates that the interpretive approach can cabin rule-making disagreements and generate comprehensive parentage rules that reflect uniform policy goals and ensure consistent treatment of children and parents.