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Abstract:
Adrienne Rich describes a radical global change in the deliberately inconsequential - and gendered - terms of fashion. In the poem, however, fashion transforms mountains and oceans more venerable than patriarchy itself. Historically inconsequential women, similarly, are shaping globalization even as globalization transforms their lives. This change of world is profound and deeply contested.

This Article first provides an overview and then analyzes this change of world in three specific contexts. It is not intended to be comprehensive; rather, I simply hope to suggest a few of the ways in which globalization affects the world's women and how they in turn affect globalization. I am particularly interested in the ways in which human rights law legitimates and furthers women's multiple, often conflicting, agendas and how feminist theories can be used to interrogate them and expose their complexity.

feminism, globalization, international human rights

Abstract:
International family law (IFL) is where the enormous abstract forces of 'globalization' and 'human rights' become real, immediate, and personal. A N.Y. Times reporter went to Ethiopia to cover the AIDS crisis and came home with an AIDS orphan. Elian Gonzalez's mother tried to escape from Cuba with her 6 year old son. After she drowned, his Miami relatives sought to prevent his return to Cuba and to the father who in fact had joint custody of the boy. His return, some claim, cost Al Gore Miami. IFL, in short, is where globalization hits home. Part I of this Article explains how globalization affects IFL. Part II explains how human rights law affects IFL. Part III explains how, in response, IFL has come of age and how it is affecting globalization and human rights law.

Family law, international law, human rights, globalization

Abstract:
This paper introduces the other half of the International Bill of Rights (the International Covenant on Civil and Political Rights being more widely known). It begins by defining economic, social, and cultural rights and explaining their origins. It describes the drafting of the Economic Covenant, its monitoring system, and major developments since it was opened for signature in 1966.

economic rights, international human rights, International Bill of Rights, international law

Abstract:
Family law is again in turmoil, and the ALI Principles are an ambitious and sometimes inspired effort to increase clarity and fairness. This turmoil can be attributed to two major factors. First, family law is ground zero in the gender wars. Second, family law is reeling from the upheavals of globalization. These factors provide the backdrop against which the dilemmas addressed in Chapter 7, Agreements, play out.

Chapter 7 focuses on a particularly intriguing tension, between commercial contracts and premarital agreements. This tension is grounded in the broader tension between American views on freedom of contract and autonomy in general, on the one hand, and American views on freedom of contract and autonomy in the specific context of the family, on the other. While the emphasis on freedom of contract may be peculiarly American, tension between legal regimes and private contractual regimes governing the family is quite common from an international perspective. As it is here, the tension between competing regimes in other countries reflects deep cultural tensions. Rather than being grounded in the sacrosanct principles of autonomy and contractual freedom, however, private contractual regimes in other countries are generally grounded in religious or customary practices. Prominent examples include the Islamic and Jewish marriage contracts. While these tensions have been addressed by a broad range of domestic courts relying on domestic law, here and abroad, my focus is on the international mediation of these competing interests under international law. International law addresses these conflicts through private international law, such as the Convention on the Recognition of Foreign Judgments, and through public international law, specifically international human rights law. My thesis here is that the ALI Principles on Agreements should incorporate, and be subject to, the relevant human rights law.

While there are certainly good reasons for incorporating human rights law in all areas of family law, there are especially strong reasons for adopting it here. First, any consensus regarding "appropriate rules" must be grounded in a coherent rationale. Because of the stature of the norms to which they are an exception, including constitutionally protected religious freedoms, the underlying rationale to justify different treatment between marital and non-marital contracts should be grounded in law of commensurate stature. Second, because of the growing diversity of the American population, and the proliferation of disparate cultural norms, that law should not be grounded in the amorphous and irrelevant conceptions of equity, but in well-established and widely accepted international human rights law.

Family law, human rights, gender, agreements

Abstract:
This paper, written for a Symposium, identifies and challenges three premises contained in the Symposium's title, "Divorce Reform for the Protection of Children." First, it tacitly assumes that divorce reform can protect "children" in general, rather than a relatively small, and quite demographically distinct, population of children in particular. Second, it assumes that divorce itself poses a danger to these children. Third, it assumes that the law should step in to avert, or at least manage that danger. This paper interrogates each of these propositions. My project may strike some as painfully obvious. Of course there are bigger, broader threats to American children, but this conference is not about the top five threats to American children; it is about divorce. Surely we can make divorce less difficult and less painful for children and surely that is worth doing. There is an impressive assembly of brainpower in this Symposium devoted to precisely that. But my thesis here is that first, there are built-in costs and built-in limits to this particular approach. Second, both can be constructively addressed by re-situating the discussion of the protection of children in the broader rhetorical framework of human rights law.

Children, human rights, divorce

Abstract:
This paper provides an overview of women's rights under international law. It begins by explaining why women's rights need to be addressed as a separate issue, distinct from human rights. It then sets out a justification for a rights approach and describes the development of an international legal consensus recognizing women's rights. It concludes by noting remaining problems and prospects for progress.

women, rights, international human rights, international law

Abstract:
This paper focuses on the Due Process Clause of the Fourteenth Amendment, through which certain guarantees of the Bill of Rights have been applied to the states, and the Equal Protection Clause, through which certain forms of discrimination have been held unconstitutional, from the perspective of the Black Americans who were the Amendment's original intended beneficiaries. My thesis is that while it was a good idea to subject the states to at least some federal standard and to require at least a modicum of formal equality, the history of the Amendment's jurisprudence remains a story of too little, too late. It has never righted the wrongs it promised to address, and it is unlikely, without more, that it will ever do so. Blacks remain economically disadvantaged; the overwhelming majority of Americans live in segregated neighborhoods; and, as Justice Ginsburg noted in her concurring opinion in Grutter v. Bollinger, racial bias remains pervasive. There are nice markers now, but the Black Heritage Trail has not led to equality.

Therefore, for the same reason it was a good idea to subject the states to a federal standard, it would be a good idea to subject the United States to an international standard. For the same reason it was a good idea to require a base line of formal equality, it would be a good idea to require courts to apply a contextualized and historicized conception of "equality" in a globalized world. Drawing on international human rights treaties already ratified by the United States, such a conception of equality would recognize racism not only as a factor in colonialism (and neo-colonialism) but also in the ongoing economic subordination of Black Americans.

human rights, race, economic rights, equal protection

Abstract:
Ann Estin & Barbara Stark, Global Issues in Family Law (West, forthcoming 2007) introduces students to a rapidly developing area of the law where globalization quite literally hits home. It considers the basic subjects of the introductory Family Law course, including marriage, divorce, establishing parent-child relationships, parental rights and responsibilities, and domestic violence. At the same time, the book provides broad coverage of the international, comparative, and transnational legal questions that are increasingly important in the practice of Family Law. The materials cover a spectrum from private law issues to questions of immigration and asylum law. Students will encounter human rights treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, and conventions from the Hague Conference on Private International Law on subjects such as International Child Abduction and Intercountry Adoption. The book can be used to supplement a basic course, or to provide a framework for a specialized class or seminar. It is intended to be accessible to students with no background in family law or international law, and also to be challenging for those interested in exploring the fascinating intersection of these two fields.

Family Law, International Law

Abstract:
According to the 2000 census, fewer than 24% of American homes are composed of a married couple and their minor children. As family forms proliferate, the meaning of 'parenting' is in flux and an issue of increasingly urgent concern. June Carbone's From Partners to Parents and Nancy Dowd's Redefining Fatherhood explain the transformation of parenting, explore the consequences and propose a range of strategies for dealing with them. This review compares their competing visions and explains how both contribute to a larger project of postmodern family law.

My thesis is that these books represent a major contribution to that project, in which commentators call for a revitalization of family law grounded in what Jean-Francois Lyotard calls our "postmodern condition". As Janet Wolff observes: "The radical task of postmodernism is to deconstruct apparent truths, to dismantle dominant ideas and cultural forms and to engage in the guerilla tactics of undermining closed and hegemonic systems of thought." This Essay explains how these authors 'undermine closed and hegemonic systems of thought' through their very different analyses of pomo parenting.

Both authors urge a more child-centered agenda and both realize that this is in tension with neoliberal as well as conservative priorities, even as it resonates with the rhetoric of both. Children, like the environment, are a long-term investment and no one wants to pay for them. Both authors aim to change this. Although they share many objectives, they have radically different approaches to the subject. Read in tandem, accordingly, they demonstrate the range and vitality of postmodern critiques, and the need for such critiques to describe and address the complexities of pomo parenting.

Abstract:
Before they marry, few couples have any real alternative to one-size-fits-all marriage. Expectations are often very different, however, not only among different couples but between the partners in a particular couple as well. Because these different expectations are rarely explicit, they are rarely addressed. During the marriage, similarly, the law neither reflects nor accommodates the partners' diverse experiences. There are no legal mechanisms for realizing their hopes or cushioning their disappointments. Rather, the parties are left to "work things out" through endless negotiations and compromises. If we as a society value marriage, and want marriage to succeed, we should provide more support.

After the marriage, the parameters of the divorce settlement depend as much on the state in which the parties find themselves at the time - and the judge before whom they appear - as on their expectations before marriage or their experience during marriage. Marriage law has become a bizarre variation on the proverbial sausage factory: rather than all manner of ingredients going in and everything coming out 'sausage', everything is considered 'sausage' going in but comes out in inexplicably - and unpredictably - different forms.

This Article addresses this disjunction between a wide range of lived experience and the law. Part I explains why one-size-fits-all actually fits none and how, in fact, this has already been recognized by all of the states in connection with divorce. Part II suggests approaching the problem through what I call 'postmodern marriage law'. By way of illustration, it sets out some modular alternatives - 'Marriage Proposals' - to one-size-fits-all marriage.

Marriage Proposals are not simply an alternative to 'regular' marriage, but an acknowledgment that there is no 'regular' marriage. Marriage Proposals are not only necessary at divorce, but during marriage; not simply an alternative for a wealthy few, but for anyone who is married or who is considering marriage. I conclude that postmodern marriage law; that is, marriage law that explicitly contemplates varied, changing, contextualized forms of marriage, may in fact be more compatible with contingent, problematic, but nevertheless enduring human love, than the reified abstraction we now call 'marriage'.

Abstract:
"Never again!" was the crie de coeur of the world leaders after World War II. "Never again" would they tolerate death camps, mass graves, or other crimes against humanity. Several genocides later, however, the phrase has become ironic. Innumerable international as well as national laws have been enacted, but they have failed to stop the carnage. This was the subject of a recent symposium in the American Journal of International Law, which assembled some of the leading minds in international law to analyze the problem from seven different perspectives. Postmodern International Law (PIL) was not among them.

As this Article explains, the omission of PIL was fitting because PIL did not fit. PIL eschews the often esoteric language of international law in order to reach a broader audience, including those who "violate human dignity" and those who harbor the violators. In addition, PIL is skeptical about the kind of totalizing theory encouraged by the symposium format. Rather, PIL situates the problem in the spatial and historic contexts of globalization. These are the contexts - fragmented, chaotic, transient - in which the law must function.

If law is to function effectively, as the late Yale law professor Robert Cover explained, it must be accompanied by violence, by the political will to impose the law through force. Political will in turn depends on stories that breathe life into the law and give it meaning. Political will has been elusive on the international level, in part, because the modern story that began with Nuremberg is no longer compelling. This Article explains how the modern story lost its luster and why the difficult, complex, and even contradictory stories of PIL are more likely to generate the political will necessary to address violations of human dignity in a postmodern world.