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Conservative & Libertarian Legal Scholarship: Familiy Law

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XIII. Family Law

Philosophical Underpinnings

Individual Responsibility and the Law, 77 CORNELL L. REV. 955 (1992). This Federalist Society symposium featured a panel on family law. Participants included Steven Calabresi, Gary Lawson, Elizabeth Fox-Genovese, Jane Larson, Phyllis Schlafly, and Karl Zinsmeister.

MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989). Traces the effects of family law’s “increasing emphasis on the individual.” Professor Glendon shows that this new, individualistic streak creates stresses in family law, which has been traditionally marriage- and family-centered, and remains so (to some extent) even today.

Feminism, Sexual Distinctions, and the Law, 18 HARV. J. L. & PUB. POL’Y 321 (1995). This Federalist Society symposium featured a panel on “Feminism, Children, and the Family,” which included presentations by Elizabeth Fox-Genovese, Carolyn Graglia, Daniel Ortiz, and Daniel Polsby. See also Jennifer Roback Morse, Beyond “Having It All”, id. at 565.

GARY S. BECKER, A TREATISE ON THE FAMILY (enlarged ed. 1991). Becker, the 1992 Nobel laureate in economics, analyzes a number of topics in this area with his “human capital” approach (in which he quantifies the skills and knowledge embodied in human labor).

RICHARD A. POSNER, SEX AND REASON (1992). A remarkably wide-ranging discussion of human sexuality and the legal system’s various attempts to regulate it through marriage and divorce law, abortion law, and the like.

ERIC A. POSNER, LAW AND SOCIAL NORMS (2002).  In Chapter 5, Posner analyzes the effect of social norms within the context of Family Law, arguing that the interconnections between law and social norms are a double-edged sword and that a degree of regulation is required to guide the law toward productive social norms. 

The Nature of Marriage

LINDA WAITE AND MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY (2001).  A short book that finds empirical evidence for benefits generated through marriage in a number of facets of daily life: better wages, higher libidos, longer life expectancy and greater overall happiness. 

John J. Coughlin, Natural Law, Marriage, and the Thought of Karol Wojtyla, 28 FORDHAM URB. L.J. 1771 (2001).  Coughlin argues that the loss of the natural law perspective from legal theory has had a negative effect on clients in marriages who seek legal advice.  He outlines two of Karol Wojtyla’s major tenets – that marriage and family are the fundamental human community and that marriage is a virtuous relationship – and concludes with practical suggestions for legal practitioners.

Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 VA. L. REV. 1225 (1998).  A lengthy discussion and modeling of the legal treatment of marriage as a social and relational norm to promote cooperation and enforce intramarital promises.

KAY S. HYMOWITZ. MARRIAGE AND CASTE IN AMERICA:  SEPARATE AND UNEQUAL FAMILIES IN A POST-MARITAL AGE (2006). Focuses on the disastrous effects of separating marriage from child-rearing.

For a review of the evidence that there is a more equal division of leisure time between husbands and wives when women work in the home than when they work for wages in addition to working in the home, see Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509, 519 (1998).

Definition of Marriage

Lynn D. Wardle, Tyranny, Federalism, and the Federal Marriage Amendment, 17 YALE J.L. & FEMINISM 221 (2005).  A piece advocating a constitutional amendment to define marriage as between a man and a woman based on two reasons: marriage as an institution protects against tyranny and federalism, the traditional constitutional protection of family law and marriage, is being eroded by the judiciary, which is usurping the right of the people to define marriage.

J. Harvie Wilkinson III, Gay Rights and American Constitutionalism: What’s a Constitution For?, 56 DUKE L.J. 545 (2006).  A conservative voice criticizing a constitutional amendment to define marriage as between a man and a woman, due to the severe consequences of politicizing the United States Constitution.

Amy L. Wax, Same-Sex Couples and the ‘Exclusive Commitment’: Untangling the Issues and Consequences: Traditionalism, Pluralism, and Same-Sex Marriage, 59 RUTGERS L. REV. 377 (2007).  An opponent of same-sex marriage examines the approach to social institutions that underlies the debate between pluralists and traditionalists on the subject, concluding that, although ‘recent developments have vindicated the wisdom of many traditionalist commitments and assumptions,” because people are increasingly ambivalent about those assumptions, same-sex marriage is likely to become adopted democratically.  See also Amy L. Wax, The Conservative’s Dilemma: Traditional Institutions, Social Change, and Same-Sex Marriage, 42 SAN DIEGO L. REV. 1059 (2005) (attempting to provide a systematic, secular exposition of the anti-gay-marriage position, drawing on the work of Burke, Hayek, and Michael Oakeshott.)

Family Law in the Medical Context

Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 Utah L. REV. 665 (1997).  A review of the Supreme Court cases dealing with the right to die and a conclusion that the Supreme Court in Washington v. Glucksberg reversed a noted tendency to insert itself in controversial family issues.  See also Yale Kamisar, Can Glucksberg survive Lawrence? Another Look at the End of Life and Personal Autonomy, 106 MICH. L. REV. 1453 (2008) (examining the continued force of Glucksberg in the wake of Lawrence v. Texas).

Martha M. Ertman, What’s Wrong with a Parenthood Market?  A New and Improved Theory of Commodification, 82 N.C. L. REV. 1 (2003).  An economic defense of commodification of the parenthood market, dealing with transactions for alternative insemination, adoption, and other reproductive technologies.  See also Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEG. STUD. 323 (1978).

Divorce and Marital Disintegration

Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979). The authors argue that the “primary function of contemporary divorce law [is] not [to] impos[e] order from above,” but rather to promote “private ordering” by providing a “framework within which divorcing couples can themselves determine their post-dissolution rights and responsibilities.”

Daniel Polsby, Suppressing Domestic Violence with Law Reforms, 83 J. CRIM. L. 250 (1992). Considers the role of deterrence and law enforcement in addressing intrafamily abuse. Suggests that creating a broader self-help defense might be a worthwhile method of combatting abuse.

MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW (1987). Compares changes in abortion and divorce law in the United States and in Western Europe with an eye toward explaining why the American experience has been more controversial than that which the Europeans have faced in the struggle to change their laws.

Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. REV. 631 (2006). Professor Volokh argues that injunctions imposed by divorce court judges on parents’ criticisms of their child’s other parent, and on religious speech when inconsistent with the religious education provided by the custodial parent, violate the First Amendment.

Last updated October 2008

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