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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:
Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during conflict and post-conflict that operates within three different meanings of justice: criminal/civil justice, restorative justice, and what I define as social services justice. The article argues that responses to sexual violence must integrate legal and nonlegal, national, international, and local approaches, and must respond to both short and longer-term needs. It focuses on victims of sexual violence in the Democratic Republic of the Congo during what has been called the First World War in Africa, which occurred from 1996-2003.

Joseph Conrad famously wrote about The Heart of Darkness more than a century ago. Today, the Congo is emerging from a devastating war which involved neighboring countries, including Rwanda, Burundi, Uganda, and Angola. As the Congo undergoes a transition to a democracy, it must grapple with its response to the hundreds of thousands of victims of sexual violence who are still wounded - in so many ways - as a result of the conflict.

By focusing on the actual victims of violence, this article articulates a new vision of social services justice. Social services justice adds another dimension to the criminal/civil justice system and to restorative justice (remedies such as reparations and mediation) by focusing on the social, economical, medical, and psychological components of providing justice to victims and moving beyond the two-dimension focus on perpetrator/victim. This new vision of justice is applicable to countries beyond the Congo and to victims of any type of conflict-based violence.

This article discusses the contemporary Congolese conflict, providing the context for the sexual violence that has occurred during the war. Next, the article provides a fuller development of the principles that should guide any response to the sexual violence, surveying the possible approaches. Finally, the article provides specific recommendations for a victim-centered approach that reflects and respects community concerns and interests and that also ensures responsibility for perpetrators.

family law, feminism, international law, development, war crimes, sexual violence

Abstract:
The article examines the nature of marriage and the expectations of husbands and wives in nineteenth century America by analyzing trial reports of famous nineteenth century divorce cases. The article argues that the textured history of divorce law in the United States shows how the law has affected gendered marital roles through its regulation of divorce. While fault is no longer the focus of divorce, conformity with gendered expectations remains a central aspect of the marital dissolution legal process. In the nineteenth century, conformity benefitted women; if they were the innocent spouse who had taken care of the children, the household, and their husbands, then they were protected in divorce proceedings. Nineteenth century ideology strongly supported this gendered role of both women and wives, and there was a significant overlap between gendered and marital roles.

By the late twentieth century, those very same actions of gender conformity had very different consequences. In the nineteenth century, a woman's highest calling was to act as a wife; this is no longer true. Late twentieth century wives who try to live the same lives as their nineteenth century counterparts are penalized. While gender roles and expectations, together with domestic relations laws, are changing, the realities of most women's lives do not yet accord with these changes. Instead, the social norms for marital roles diverge from the legal norms embodied by divorce law. Examining nineteenth century divorce illustrates the confining nature of these congruent legal and social norms, but also illustrates how contemporary divorce law has become separated from these norms. Although divorce law should not return to fault or to reinforcing confining gender roles, it should respect the diverse roles of men and women within marriage. This examination of nineteenth century divorce shows the relationship between gender roles and domestic relations law, but also shows how social norms and legal norms can reinforce, or conflict, with each other.

Abstract:
Much of the work family literature that has blossomed over the last decade has focused on professional women and has emphasized policy changes that would be of less utility to many other working women and men. In this symposium contribution, we explore the recent data on working time to demonstrate that in today's economy more women are underemployed rather than overemployed. We also demonstrate that although professional women tend to work the longest hours, they also tend to have the greatest means, both in income and workplace benefits, to support them in achieving a workable balance between their work and family demands. We discuss the most prominent policy proposals for helping attain this balance, including a greater emphasis on part-time work and shorter workweeks, and critique them for their failure to address the needs of most working women. Finally, we suggest several alternative proposals, including lengthening school days, addressing domestic violence, and challenging the stubborn gender norms that prevent further progress for equality in both the workplace and the home.

Abstract:
A critical issue for post conflict reconstruction is moving beyond criminal prosecutions that ensure accountability of perpetrators toward a system that also serves the needs of victims. When reconstruction includes disarmament, demobilization, and reintegration (DDR) and development services, these programs cannot be separated from perpetrator responsibility. The traditional criminal justice is perpetrator-centric. Alternative forms of justice have broadened this focus, recognizing that the legal system must respond to both victims and perpetrators. Transitional justice, which focuses on responding to past human rights violations, is critical to holding violators accountable for their acts.

In addition to criminal and civil accountability (rights-based justice), perhaps the most significant form of justice for women is assistance traditionally associated with development, as it provides critical social services and facilitates all aspects of post conflict reconstruction. This article seeks to expand conceptions of international justice in the post conflict setting to include social, economic, and development-based rights. It examines two aspects of gender that are integral to post conflict reconstruction and involve women's differing roles during conflict: the significance of integrating gender into DDR and the necessity of domestic responses to the crimes of sexual violence.

post-conflict reconstruction, gender, sexual violence, disarmament, demobilization, reintegration

Abstract:
This paper develops a typology of different country governance contexts, in which we propose four broad categories of countries in Sub-Saharan Africa. Our analysis measures the most appropriate methods for helping to create a climate that is receptive to fostering corporate accountability. Our criteria are based on several different factors, none of which is determinative: the natural resources of the country; the country's dependence on one commodity; the corruption level; the stability and accountability of the government; the state of civil society; and the existence of ongoing conflict. Examining these factors together results in measuring not just the country's receptivity to change, but also the means for producing change.

At one end of the spectrum, what we label Category 0 countries, are nations with economies and governments that are so poorly managed that there is little multinational investment - sometimes even in the context of lucrative investment opportunities. At the other end lie those countries with acceptable levels of good governance, more developed economies and markets, and with, consequently, a comparatively high level of both domestic and multinational corporate investment. We examine the appropriateness of strategies to apply external or internal pressure in different types of countries. Next, we discuss the affects of applying the proposed intervention strategies to the countries, addressing both short and long-term expected results. We find that in Category 0 countries, with extremely low levels of international investment, strategies should focus on improving governance and overall human welfare, which often could lead to welcoming international corporate investment. Other categories of countries, with greater - and often problematic - international corporate involvement, require different types of approaches.

Africa, corporate accountability, governance, corporate investment

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:
This paper, written for a symposium on The Mind of a Child, examines two different aspects of the accountability of children: those children who are thrown away by their families because they are sorcerers, and those children who become soldiers and, through their involvement in armed conflict, inflict violence and death on others, including children. Like all other children, both sets of children are especially vulnerable because of their developmental (im)maturity. Indeed, as policy-makers struggle to develop strategies for responding to the needs of these children, the new neuroscientific literature provides yet another basis for arguing that children must be treated differently from adults. This paper discusses the promises and limitations of concepts of children's rights and the importance of creating local, national, and international responsibilities to care for the poor children in these contexts. The paper suggests a conceptual shift in thinking about children in the international context. Rather than focus on the paradigmatic triangle of parents, children, and the state when considering rights and responsibilities, I argue that we must think of a rectangular pyramid that places children at the top, but has a base that includes family, state, international actors, and, as the final point, civil society and other non-governmental actors. Unlike the situation in most developed countries, the main actor in many developing countries is not the government, but non-governmental organizations and the aid community. Civil society organizations are highly relevant to discussions of how to advance children's rights in developing countries. When governments are not democracies, and are not accountable to their citizens, non-governmental organizations (NGOs) and international, multilateral organizations and institutions represent possible sources of change because they function outside of the state bureaucracy. Civil society groups play multiple roles in both developed and developing countries. This article articulates principles for a child-centered approach to justice using what I have referred to as social services justice. Social services justice focuses not on punishment and retribution but rather on the social, economic, medical, and psychological components of providing justice. This approach is particularly well-suited to juveniles because it takes psychological and developmental needs into account and recognizes that the formal mechanisms of the legal system cannot fully provide justice on their own terms. This article first explains the differing phenomena of child sorcerers and child soldiers. Next, the article turns to a brief survey of the neuroscientific literature on the development of children, which reinforces the vulnerable nature of children who become sorcerers and soldiers. The article argues that the neuroscientific literature provides two insights. First, it sheds light on concepts of culpability for children recruited as soldiers; second it provides additional support for responding to the nurturance needs of child sorcerers and highlights the particularly destructive nature of banishing them from their homes. The article then provides a fuller discussion of the principles that should guide a response to these issues. Finally, the article provides specific recommendations for an approach that recognizes the developmental (im)maturity of children by placing both types of children within their social and community contexts.

Children's rights, international law, law and development

Abstract:
This essay focuses on the relationships between children, unknown donors, and biological parents. It argues that children deserve access to information about their biological pasts both when the donor's identity is known to the biological parent and when it is unknown. Once an adoption has been finalized or once known gamete donors have agreed not to assert parental rights, the donors should be unable to assert parental rights. But the finality of adoption or gamete provision (which includes eggs, sperm, or embryos) should not prevent the disclosure of information about the identity of biological parents and gamete providers to a mature child. The disclosure of this information is not equivalent to recognizing parental rights and responsibilities for the biological parents or gamete providers. Nor is disclosure solely for genetically based reasons. Rather, disclosure recognizes the potential relationship between the child and her biological forebears. The argument for disclosure, while it may implicate constitutional interests, is ultimately based on public policy considerations. Adoption and gamete provision are regulated by state and federal law, so the decisions on whether to allow disclosure is largely left to the legislative, or referenda process. In the adoption area, legislatures have chosen whether to seal birth certificates and related adoption records based on a balancing of the different interests involved. In the gamete provision area, the few legislatures that have acted, have similarly attempted to balance the different interests involved. My argument is that the balancing of the affected interests should result in making birth certificates and other biological information readily available because the "child's" interest becomes paramount when she becomes an adult. Although the article is primarily concerned with disclosure issues in lesbian and gay families, the arguments are applicable to all families formed through adoption or gamete provision.

Abstract:
This article calls for setting limits on the number of offspring born from any one individual's gametes, and for continuing to sanction incest, even when it comes to adult, inter-sibling consensual behaviour. The article examines the issues of inadvertent consanguinity raised by third-party gamete use through a feminist lens on both incest and reproductive technology. The central questions concern regulation of reproductive technology, such as whether legal restrictions on the fertility market might diminish the possibilities of accidental incest, as well as whether criminal and civil sanctions of intrafamilial sexual behavior should apply to relationships created through reproductive technology; these, in turn, require examinations of the fertility business itself as well as broader justifications for incest prohibitions.

family law, gametes, incest, reproductive technology, intrafamilial sexual behavior

Abstract:
On January 26, 2009, the nation's second set of live-born octuplets was delivered. The public fascination with this event quickly turned ugly when the media revealed that the mother was thirty-three year-old Nadya Suleman, who is single, unemployed, and already caring for six children under the age of eight.

The cultural backlash against Suleman has focused on three separate issues. The first revolves around Suleman herself, and her ability as a single, unemployed mother to parent fourteen young children successfully. A second set of concerns revolves around the medical procedures at her fertility clinic. How could the clinic agree to implant a woman under the age of thirty-five with at least six embryos? A final set of issues concerns more fundamental questions about screening parents. How could a clinic provide a single woman with six children with treatment that could double the number of children she has? As a result, commentators and legislators are calling for new, more restrictive regulation of the fertility industry.

We support some of these initiatives, specifically more meaningful limits on the number of embryos that may be transferred in any single IVF procedure. But we are far more troubled by another set of proposals: some commentators are now urging the imposition of restrictions on which individuals may receive fertility treatment. Under this theory, women with a certain number of children, or with limited financial resources, should be precluded from receiving further treatment. Our conclusion here differs from our position about regulating the medical procedures themselves: as we explain, neither fertility clinics nor the state should be in the business of restricting access to reproductive technology.

Abstract:
While most children grow up in their families of origin with at least one of their parents, what happens when the parents die or are incapacitated? While they are alive, parents are presumed to be the legal guardians for their children, and if one dies or has had his/her parental rights terminated, then the surviving parent is generally the sole legal guardian. Even if that parent remarries, the stepparent is not the legal parent.

As this chapter shows, parents can give to other adults some of their legal caretaking responsibilities while they are still competent. There are three different methods by which parents can provide for the various types of personal guardianship of their children: by will, by petition, or through another statutorily-created mechanism, such as standby guardianships. A guardianship by will only comes into effect when both parents are deceased, and it is the nomination made in the will of the last surviving parent which the court will look to in appointing the guardian. The other two means of creating long-term guardianships can occur while one (or both) parents are living.

In addition to these primary methods of guardianship, statutes may provide for more limited delegations of authority, such as the right of a non-parent to consent to medical care. A guardian's authority is defined by the statutory grant, so a guardian appointed pursuant to a medical guardianship statute does not have authority with respect to educational decisions.

minors, estate planning, tax planning, guardianships

Abstract:
This brief article calls for a mandatory national donor gamete registry. It first discusses the history of secrecy in the adoption context before turning to issues involving confidentiality in the donor context. After analyzing the issues involved in maintaining the secrecy of donor gametes, the article ultimately recommends the establishment of a national information registry, similar to that in place in numerous other countries, to keep track of children both through donor egg, embryo, and sperm, as well as the identities of the gamete providers. Participation in the registry would be mandatory for anyone involved in supplying donor gametes. Once donor-conceived offspring reach the age of 18, they should be able to receive identifying information about their donor, although the donor could file a statement indicating his/her lack of interest in being contacted. While mandatory limits on donor anonymity constitute a radical change in existing practices, there are multiple reasons supporting this change.

health care, family law, adoption, genetics, Mandatory National Donor Gamete Registry, privacy, secrecy

Abstract:
The state's claim that it can represent children's interests plays a significant role in defining the structure of families, the relationships within families, and the development of children's interests. This paper explores three different contexts involving the state and the contested nature of how the interests of minors are represented in both national and international law: first, in restricting the abortion rights of minors, the state claims to be protecting them; second, in allowing parents to decide who will act as caretaker for their children if both parents are dead, the state defers to parents' wishes; and third, in dysfunctional countries, where the state cannot protect children and the exercise of rights in court is virtually meaningless, it is non-governmental organizations who speak on behalf of minors.

In examining the state's role in speaking for children, this article serves as a critique and a defense. The state's actions and efficacy in advocating the interests of minors is context-dependent; there are contexts in which the state's stated agenda of protecting children really is primary, while in other situations, there is another agenda altogether - or the state may be altogether incapable of acting at all. The paper argues that the state may be serving its own interest when it claims to be acting in a child's best interest, as when it regulates minors' abortions; it may be according primary value to children's interests, as is the case with guardians appointed once both parents are dead; or the state may be completely unable to serve anyone's interests. Children have different needs for third party understanding of their situations, depending on the posture of state, parent, and other institutional actors. Ultimately, the paradigmatic state/parent/child triangle must include, at a minimum, civil society and other non-governmental actors.

family, children, minors, abortion, guardians

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:
The “Option of Adoption Act,” a Georgia law that was introduced by a staunchly anti-abortion Georgia state representative, establishes procedures for genetic donors to relinquish their rights to embryos before birth and permits, but does not require, embryo recipients to petition a court for recognition that they are the legal parents of a child born to them as a result of an embryo transfer.

This article clears up what seems to be widespread confusion about a fairly straightforward question of tax law related to such embryo “adoptions.” Notwithstanding various sources' claims to the contrary, neither a Georgia adoption tax credit nor a federal adoption tax credit is available for “adopting” an embryo.

adoption, tax credit, Georgia, abortion

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:
In this article we sketch an overview of the increasing federal involvement in the child-support area. Because the federal role has grown so dramatically over the past 25 years, family law practitioners need to understand the different federal programs and requirements that affect state management of child-support programs. While for many low-income parents state agencies handle child-support establishment and collection, the federalization of child support has practical implications when it comes to both establishing and enforcing child support. For example, as the time limits of the Personal Responsibility and Work Opportunity Reconciliation Act begin to have their effects, child support may become a supplement more and more needed by custodial parents.

We begin this article with a brief history of the changing nature of federal involvement in child support-focusing on the origins of the federally mandated state child-support departments (“IV-D” agencies)-and then examine the development of mandatory child-support guidelines. We conclude with a listing of the implications of the federalization of child support for the family law practitioner.

child support, federal government, state agencies, Personal Responsibility and Work Opportunity Reconciliation Act, custodial parents, "IV-D" agencies, mandatory child support guidelines, family law, child support collection

Abstract:
This casebook captures the rapid evolution of doctrine, introduces students to emerging policy debates, and explores issues that arise in family law practice including the importance of collaborating with professionals from other disciplines. The book emphasizes that families take a variety of forms, including marital and nonmarital relationships, and that constitutional considerations play an increasingly important role in family law. Contemporary Family Law includes several chapters that do not appear in most other family law casebooks. For example, it devotes separate chapters to lawyering, private ordering, and alternative dispute resolution. And, in contrast to the usual approach, the book treats property distribution and alimony in separate chapters to emphasize each topic's distinctive theoretical and practical aspects. Moreover, because child custody arrangements lead to some of the most acrimonious legal disputes, this casebook devotes two separate chapters to custody: the first treats the initial custody decision, and the second explores disputes that arise over visitation, custody, and key childrearing decisions after the initial disposition. In addition, the book emphasizes the importance of legal practice issues by placing the lawyering chapter at the beginning of the book, and by using problems that enable students to apply doctrine.

family law

Abstract:
There are estimates that 3.3 to 10 million children are exposed to domestic violence in their homes annually. For many children, this exposure results in behavioral, emotional, and psychological problems. This chapter discusses the sociological and psychological studies showing the impact on exposure to domestic violence on children, describes some of the available treatment options, and reviews the legal system's treatment of these issues in different areas, including child custody and abuse and neglect. The chapter then articulates four principles that should guide legal approaches to child exposure. First, child witnessing of domestic violence must be a critical component of any legal proceeding that affects children. Second, the adult victims of domestic violence should be supported, not penalized, in their continuing relationship with their children. Third, the safety of the adult victim and the child should be of paramount importance. Finally, the batterer's exposure of children to domestic violence should be a consideration in other legal proceedings relating to the batterer. The chapter concludes that domestic violence requires more fundamental reform to legal decisionmaking about children and violence. Domestic violence reveals parenting skills. It shows that at least one parent has taken actions that are diametrically opposed to the best interest of the child. Indeed, battering must be understood as a decision on how to parent by the abuser. Instead of segregating abuse from custody or other issues concerning the child, there must be systemic recognition that violence is bad for the family. Because exposure to domestic violence has identifiable and deleterious effects on children, legal standards must account for this aspect of the parents' relationship.

Abstract:
Since the mid-19th century, American law has recognized adoption as a way to create parent-child relationships. As the product of law, rather than blood, adoptive families have become a focal point for debates about the meaning of famly, the rights and responsibilities of parents, and the best interests of children. Familes by Law brings together diverse perspectives on contemporary aspects of adoption law and practice. Following a historical overview of adoption in American law and society, the reader presents different responses to concerns about who may place children for adoption, the status of birth parents, who may adopt, and the legal and psychosocial consequences of adoption. The new frontiers of adoption are explored: from transracial and intercountry adoption, adoption by same sex couples, and the adoption of children with special needs, to the movements for opening records and maintaining post-adoption contact between adoptive and birth families. The relationship between adoption and assissted reproductive technologies is discussed, as are feminist, economic, and philosophical perspectives on adoption and procreation. The reader includes statutes and cases, as well as other pieces from scholars from a wide range of disciplines and would be appropriate for undergraduate and graduate level courses.

families, adoption

Abstract:
This symposium article critiques the emerging literature on caretaking, a literature that concentrates on the need to create policies that would facilitate women's carework, from two distinct perspectives. The first part of the article compares the emphasis on caretaking with the recent proposals from the right that promote marriage as an adjunct to the welfare system. The second part of the article critiques the carework proposals that have arisen principally among feminist legal scholars because it is premised on an inaccurate perception of women's labor force attachment and reifies women's roles as mothers. We also critique the recent interest in French social welfare policies, and ultimately we suggest additional policies, such as restructuring school days, as a superior alternative to finding balance between the demands of labor market work and carework.

labor market

Abstract:
Perfect Substitutes or the Real Thing? traces the development of adoption law, using recent scholarship in history and sociology as well as nineteenth century legal sources. Contentious issues involving the formation and recognition of same-sex families, the respect to be accorded single-parent and stepparent families, and the implications of the new reproductive technologies reprise nineteenth century attempts to manage "artificial" families.

The early history of American adoption provides a novel and useful context to analyze the complicated relationships between "traditional" and "alternative" family forms. Many legal scholars ascribe the origins of modern adoption to the enactment of an 1851 statute in Massachusetts that was a radical rupture of existing law. Contrary to the claims of other scholars, I emphasize the continuity of adoption law with cultural and legal norms, showing how the law reacted to changes in family status, rather than revolutionizing the family. The article discusses how judicial interpretations of the meaning of adoption were cabined by the traditional significance of blood relationships, examining the treatment of adopted and biological children in three contexts: parental consent to adoption, inheritance, and the civil and criminal laws governing incest. Historical dilemmas faced by adoptees show that the law did matter to family formation and functioning, much as the law matters today for relationships at the boundary of the law, such as single parent families, cohabitants, and gay and lesbian families.

Finally, the article argues that the challenge today, as was true more than a century ago, is how to expand the meaning of family without destabilizing families. The contemporary debates on adoptive, single parent, and gay and lesbian families, as well as on the rights within families formed by new reproductive technologies, are grounded in this history; but the history also provides critical insights for structuring the legal response to these newly forming families. The article concludes by examining post-adoption grandparent visitation disputes (if the law permits grandparent visitation in the first place, then pre-adoptive grandparents should have the same rights once an adoption has occurred); single parents by choice, and gay and lesbian second parents. Don't let form fool you, I argue - treat like relationships similarly while respecting and accommodating the differences.

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.