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Abstract:
Marriage and monogamy feature prominently on the public stage, but not all romantic relationships come in pairs. While people across the political spectrum debate the different-sex requirement of civil marriage, this article focuses on another limiting principle of monogamy's core institution: the twoness requirement. In particular, the article elaborates the practice and ethical principles of contemporary relationships of more than two people, called polyamory. Such relationships take many forms and aspire to several identifiable values, including radical honesty, consent, and the privileging of more sexual and loving experiences over other activities and emotions such as jealousy.

The article asks why polyamorous relationships face such severe normative censure. After considering various objections, the article concludes that one key component of the censure is, paradoxically, the ability of most people to imagine themselves having sex with someone other than a primary partner - in other words, a paradox of prevalence. Despite the widespread desire for more than one sexual partner, however, and despite relatively widespread nonmonogamy, most people do not engage in polyamorous relationships. But neither do most people affirmatively choose monogamy: Laws and norms exert strong pressure on people to promise monogamy, and most people simply succumb to this pressure. The article argues that although monogamy is a sound choice for many, polyamory is a sound choice for others. Building on this premise, the article considers some ways that information-forcing principles of contract law might be used to help encourage people to make active, reflective choices about monogamy.

Abstract:
Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional contagion is a largely unconscious process by which we absorb the emotions of nearby others. Research on emotional contagion indicates that people with mental illness are likely to prompt others to absorb their negative emotions, and that emotional contagion increases the more we like someone. Contrary to the much-vaunted contact hypothesis that workplace integration increases liking and decreases discriminatory animus, then, integration of people with mental illness may instead give coworkers and employers more reason to want to avoid people with mental illness.

These insights have at least four doctrinal implications. First, the Americans with Disabilities Act (ADA) requires employers to bear the hedonic costs imposed on the workplace by employees with mental illness, subject to certain limitations. In particular, employers may not generally define the essential functions of a job to include not inflicting hedonic costs, with the exception of jobs that have the mental state of others as their focus. Second, understanding both the centrality of hedonic costs to mental illness and the mechanism of emotional contagion helps resolve a disagreement between circuits about whether the employer or the employee bears the greater responsibility for effective negotiations about reasonable accommodation of a disability. Third, at a time when the EEOC's most promising interpretation of what it means for a person to be regarded as disabled is on uncertain footing in the courts, an awareness of negative emotional contagion and other hedonic costs of mental illness helps show why that disputed interpretation is in fact vital to implementing the mandate of the ADA. Finally, appreciating the understandable fear of the hedonic costs of mental illness helps explain the difficulty courts have had with the apparently easy doctrinal question of whether interacting with others is a major life activity for purposes of the definition of disability under the ADA, and thus helps supply an answer to that question.

discrimination, Americans with Disabilities Act, hedonic costs

Abstract:
Marital names shape our ideas about marriage, about our children, and about our selves. For about a hundred years, American states required married women to take their husbands' names in order to engage in basic civic activities such as voting. While the law no longer requires women to change their names, it still shapes people's decisions about marital names in both formal and informal ways.

For example, the formal legal default rule in most places is that both spouses keep their premarital names. This rule is minoritarian for women, which means it imposes a range of social costs on women who make the most conventional naming choice. But the rule is majoritarian for men, which means it does nothing to unsettle the most robust aspect of our current marital naming conventions - the fact that men almost never change their names, even to hyphenate. This fact about men's names - coupled with the fact that children almost always have their father's name, even if their mother makes an unconventional naming choice for herself - means that women are ostensibly choosing their marital names, but in fact they are choosing from a very limited decision set. That is, women effectively can have nominal continuity either with their past (their families of origin and premarital selves) or with their future (their children and possibly their spouse), but not across all three generations. The formal legal default that both spouses keep their names reinforces this bind for women.

Informally, legal institutions also shape choices through desk-clerk law, that is, advice given by the government functionaries who answer public inquiries at state and local agencies. These legal actors frequently mislead people and discourage unconventional naming choices as a result of ignorance or their own views about proper practice.

Because states historically reinforced a regime of patrilineal descent of names, what might seem a neutral default regime is inadequate. States should set defaults and frame choices to encourage more egalitarian decisions about whether to change names and how. States could try any number of creative solutions using existing categories for thinking about choice regimes, drawn from contract-law theory: default rules (what rule the state fills in if the parties don't speak to the contrary); menus (what range of options parties are given); and altering rules (what steps parties must take to contract around the default rule into different alternatives). Most modestly, states could adopt a forced choosing approach, requiring both spouses to state their postmarital names. More ambitiously, states might encourage hyphenation and, at the next generation, biphenation - defined as the passing of one name from each hyphenated parent - by making this the default option.

States could also create what might be called framing rules, which would dictate how the state asks the question of parties in a choice regime. Framing rules encompass what information the state gives parties, what words it uses, what context surrounds the question, as well as the timing of the question. Framing rules are particularly important in contexts, such as marital names, where social conventions exert a strong influence on choices, and where desk-clerk law is likely to be erroneous or misleading.

Abstract:
Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations - from ramps to ergonomic furniture to telecommuting initiatives - can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of diverse groups of people helps to ameliorate discriminatory attitudes through contact. But integrating people with disabilities also means integrating accommodations. These accommodations affect and benefit third parties in the workplace and thus shape attitudes toward both disability and the ADA. An understanding of third-party benefits is crucial to designing and disclosing accommodations in ways that will best promote the aims of the statute and the prospects of disabled people.

Abstract:
In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational - they are a good proxy for various aspects of behavior - particular judgments based on age are not necessarily rational. To the contrary, our judgments based on age may be distorted, or even inverted, because of wrongheaded thoughts and, especially, feelings. In the context of death penalty sentencing, among others, we think we favor youth, and we think we should favor youth, but in reality we may disfavor youth. Kennedy's reasoning thus suggests that, in at least this context, the law must embrace a categorical rule to align how we treat young people under law with how we think we do and should treat them.

This understanding of Simmons does not establish the rightness of Kennedy's opinion. But it does suggest that the opinion is supported by a stronger rationale than it fully articulates, a rationale that has implications for other areas of law involving the irrationality of apparently rational categories, such as old-age discrimination. Kennedy's recognition that we may not be as rational about age as we think we are provides further justification for the Court's decision the same Term in Smith v. City of Jackson that disparate impact suits are available under the Age Discrimination in Employment Act.

age discrimination, juvenile death penalty, ADEA, Roper

Abstract:
Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need to respect other kinds of stories.

The clinical lawyering pedagogy of Jean Koh-Peters and the late Kathleen Sullivan demonstrated a parallel dialectic. Koh-Peters urged aspiring lawyers to use a storytelling approach as the best way both to empower clients - who often want their stories told in court - and to represent their interests before decision-makers who respond to compelling narratives. Sullivan, by contrast, encouraged a resistance approach to advocacy. She helped her law students see that their clients in a clinic on Advocacy for Parents and Children had been forced to reveal the private details of their lives far more than most Americans, and thus that resisting state intrusion was an important part of the advocate's role.

Ultimately, these perspectives - on law and identity - alert us not only to the importance of telling new stories, and of telling challenging stories, but also to the occasional, yet vital, need to stop the stories. They call our attention to the overlooked moment when identity shapes itself by resisting the demand to tell stories.

disability, identity, narrative, lawyering, disability law