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Abstract:
Marriage is an important relationship, both for the parties to it and for society as a whole. Its benefits, stemming from the economies of scale and joint consumption inherent in the relationship, are largely unquestionable. And when marriage fails, the results are rather staggering. Economically, it is estimated that the annual cost of divorce to American taxpayers approaches $30 billion. From a social science perspective, the negative impacts of divorce on women and children have long been decried. In the face of these facts, we expect family law to fulfill a certain role. It should channel parties into the relationship that best serves society and take reasonable steps to insure that they remain there. Generally, family law functions in exactly this manner. This article explores the failure of family law to perform that role in an area in which we would expect the law to be most protective of the marital relationship. Specifically, the article explores how marital property rules often serve to incentivize divorce.

Three examples of marital property rules which render spouses better off divorced are explored. First, spouses may divorce to garner an advantage vis-a-vis their creditors. Surprisingly, some states actually allow spouses to substantially narrow the assets creditors may seize to satisfy their debts by simply divorcing. Second, a spouse who finds himself married to a spendthrift may find divorce is the only way to protect himself from the other's mismanagement. Because the American states have not widely adopted a method of unilateral termination of the marital property regime which is common abroad, a spouse in this country has no mechanism whereby he might terminate his marital property regime, yet still remain married. Third, the federal rules governing most pensions create an incentive for an ailing spouse to consider a "quickie divorce." Specifically, the provisions of the Employee Retirement Income Security Act (ERISA) give protections to divorced spouses that the heirs of spouses whose marriages end by death are not afforded. The effect of each of these rules, then, is to incentivize divorce.

A shift in thinking about the rules of marital property is desperately needed. In addition to pushing ambivalent spouses toward divorce, these marital property rules fail to fulfill the normative and expressive functions typically served by rules in the family law sphere. These rules send the wrong message, both about marriage itself and about the core of the spouses' economic partnership. This article seeks to incite a change in the rules of marital property. If these substantive rules are not reversed entirely, family law scholars and lawmakers should, at a minimum, begin to focus calls for reform on modifying the rules to remove the perverse incentives to divorce that they carry.

Abstract:
This article is a first step in an effort to critically examine - and to debunk - some of the myths that persist about the degree to which the common and civil law systems differ. Specifically, the article questions the validity of recent scholarly commentary suggesting that the primary differences between the systems can be found in their substantive legal rules or in their respective "spirits." A relatively narrow issue of riparian access perfectly highlights the problem. Nearly all of the high courts in the United States that have examined this particular riparian issue have chosen to adopt either the so-called "common law rule" or the so-called "civil law rule" of riparian access.

In fact, these courts are perpetuating a false choice. The "civil law rule" adopted by at least six of our states' high courts is not actually a rule of the civil law at all. It is, instead, the relatively modern and spontaneous generation of one European jurisdiction in response to peculiar policy choices. The rule at civil law is exactly the same as that at common law. But the United States Supreme Court made an error of interpretation years ago that pulled a distorted rule into American jurisprudence and falsely attributed it to civilian sources. That error has been perpetuated by courts around the country ever since.

This article seeks to correct that two-hundred year-old mistake as an important step towards preserving judicial integrity and discovering and benefiting from the true differences between the common and civil law systems.

Abstract:
This article is a first step in an effort to critically examine the invasion of a rather dangerous European property law trend into American law. The view of the right to safe, adequate, and affordable housing as a fundamental right held by all mankind is quickly growing, with more than nine countries now recognizing it. The problem is that the recognition of this fundamental right begs the question of how it is to be assured. The method of assurance chosen by most jurisdictions recognizing a right to housing is a scheme of good cause eviction. Under such a regime, a landlord may not evict a sitting tenant, or even refuse to renew the lease of an expired tenant, absent "good cause."

Good cause limitations are problematic from a theoretical standpoint, given their intrusion upon private property rights. But more importantly, they are a bad idea economically. The evidence surrounding the enactment of good cause eviction schemes in Europe demonstrates that the rules do not remedy housing crises. On the contrary, they tend to exacerbate supply problems, decrease the quality of rental housing, encourage inefficiency in housing allocation, increase litigation, and even push tenancies away from legal regulation and into the black market.

Unfortunately, the European trend toward limiting permissible tenant eviction to good cause is beginning to take hold in the United States. And just as it has abroad, the effect of the imposition of good cause eviction schemes here has been exceptionally undesirable.

This work demonstrates that good cause eviction is a flawed and altogether unacceptable solution to the serious housing crises faced almost worldwide today. We must stave off further encroachment of the doctrine in the United States, or suffer serious economic consequences.

Abstract:
This article is a first step in an effort to critically examine the continued vitality of the community regime for regulating spousal property. Specifically, the article examines the American community property regimes in light of how they measure up against non-community property states in terms of creditor protection. The results are often surprising. The community regime grants creditors access to a variety of property for all manner of debts. For instance, the entirety of the community property, including the non-debtor spouse's wages, may be seized in some community property states for the other's premarital debts. That the non-debtor spouse has no connection to the debt and, indeed, that it carries no benefit for the family is irrelevant. Nearly everything brought in by the spouses during marriage may be seized for it. Such a result would never obtain in the forty-one non-community property states, of course, where a creditor is fairly allowed to seize only the property of the party with whom he engages. A community creditor often receives quite a windfall. Exploration of other creditor rights demonstrates similar bizarre results. The neutral observer might correctly conclude that the community property regime in the twenty-first century is really little more than a creditor collection device.

After exposing the exceptional creditor bent of the community property regime, the article goes on to explore the problem with the community's approach to debt collection. Examining the history of the regime's adoption and retention shows that the community has strayed so far from its goals of protecting women and attracting settlement in community property states that it is almost unrecognizable. Moreover, such a departure is unnecessary in light of the reasonable expectations of the creditors involved with the spouses and the protection they are granted by other, more general, laws.

The article concludes by suggesting that the community needs to begin utilizing a more "common law" approach to debt collection if it is to remain a viable marital property regime for the centuries to come.