The Faculty Lounge

Unmarried Fathers & the Equal Protection Clause

    As much of the Indian law community holds its breath waiting for the Supreme Court to decide the so-called Baby Veronica case, I’ve been thinking about an issue that’s not raised at all before the Supreme Court and that doesn’t  seem to have been raised below (although the lower court materials in South Carolina state court remain confidential), namely, shouldn’t a law that allows a newborn to be adopted without the unmarried father’s consent be interpreted as a violation of equal protection?

    For those of you unfamiliar with the case, here’s a quick recap on its facts.  Bio mom and dad date on and off for years, become engaged, and then the mother becomes pregnant and breaks off the engagement.  The father is a member of the Cherokee Nation.  Through a text message shortly after the break-up, the father agrees to “relinquish” his rights to the mother.  The mother then secretly decides to put the child up for adoption, and through a Christian adoption agency, picks the adoptive parents.  She has the child without notifying the father (indeed instructing the hospital to keep her presence there a secret).  The adoptive parents reside in South Carolina, and South Carolina law does not grant unmarried fathers in these circumstances a say in the adoption unless they have lived with the child or his or her mother for six months preceding the adoption or they have provided “a reasonable sum” for support or expenses.  S.C. Code 1976 § 63-9-310.  However, the Indian Child Welfare Act (“ICWA”), which applies here because the child is the biological child of a tribal member and is herself eligible for tribal membership, 25 U.S.C. § 1903(4), recognizes the rights of unmarried fathers as long as their paternity has been acknowledged or established.  25 U.S.C. § 1903(9).  Pursuant to ICWA, mother’s attorney attempts to inquire into the father’s membership status through the Cherokee Nation, but the father’s name is spelled wrong and his birth date is listed incorrectly, so the Nation is unable to verify that he is a member.  The father is finally served with adoption papers just before he is to be deployed, and at that point begins to contest the proceedings, as does the Cherokee Nation.  He eventually ends up with custody of his daughter under rulings of the South Carolina courts.  The case is now before the Supreme Court, and the adoptive parents are painting ICWA as racist and claiming that the ruling will bar any interracial adoptions of Native children.   

    There are strong responses to these arguments.  For one, Indian status, especially when based on tribal membership, has long been considered political rather than racial.  Additionally, an important thing to understand about ICWA is that it was enacted to remedy decades and decades of assimilationist (and arguably genocidal) policy, which encouraged forcible removal of Indian children from their parents and cultures allegedly for their own betterment.  The legacy of that policy continues even today--Indian children continue to be removed from their families in many states at much higher rates than other children. 

    But what has been bothering me most about the case lately is the South Carolina law.  Given that young men cannot be denied the privilege of drinking low-alcohol beer based on their gender, Craig v. Boren, 429 U.S. 190 (1976), why should they be so easily denied their parental rights based on their gender?  And yet the Supreme Court affirmed a similarly harsh rule in a different context fairly recently.  In Nguyen v. INS, 533 U.S. 53 (2001), the Court affirmed a law that made it much more difficult for a non-marital child born outside the U.S. to claim citizenship through an American father than through an American mother.  In affirming the law and upholding the adult child’s deportation, the Court noted that its decision was based “on the significant difference” between each parent’s relationship to the child at the time of birth and noted that male and female biological parents are not “similarly situated to each other with regard to the proof of biological parenthood.”  While the latter statement is undoubtedly true, I still don’t see how it justifies placing the types of formal, affirmative obligations on fathers that the Court has allowed as a pre-condition to their taking advantage of parental rights, particularly in cases where the father’s parentage is uncontested.  For one, having a child is something that can just happen to a person.  I can’t imagine an ordinary unmarried father’s first thought would be to go out and file a form claiming paternity, as some states require.  See, e.g., Lehr v. Robertson, 463 U.S. 248 (1983) (upholding New York law that gave putative fathers the right to notice of adoption only if they mailed a postcard putative father registry).  And, when the adoption occurs just after a child is born, as in the Baby Veronica case, how the father-child relationship will develop remains unknown, particularly in this case, where the birth was sandwiched between an acrimonious break-up and a military deployment.  To say, as South Carolina does, that unless very specific requirements are met within a short timeframe, the father lacks any rights, seems patently unfair.

    Finally, although the issue isn’t raised here, the case seems to me to be another illustration of the impoverishment of formalistic equal protection analysis.  In Geduldig v. Aiello, we see the Court basically saying pregnant women are not like men, so they aren’t entitled to the benefits in the workplace that men have.  In the unmarried father cases, we sometimes see the Court saying fathers aren’t like mothers, so they aren’t entitled to the same rights.  But see Caban v. Mohammed, 441 U.S. 380 (1979).  In work, the norm is male, but in unmarried father cases, the norm tends to be female.  The problem is that individuals should be entitled to basic equal protection rights even when biology—or the social construction of gender or race—prevents them from being similar to the favored group in every significant respect.

    For more on the Baby Veronica Case, see Kate Fort's earlier post here and Laura Briggs' post on NCRW's blog, which is here.

Teaching the Indian Child Welfare Act

I usually teach one of two classes. The first is an experiential learning class we offer as a part of our Indigenous Law Certificate. The second is Advanced Topics in Indian Law. My topic is the Indian Child Welfare Act (ICWA).

Congress passed ICWA in 1978 to address the states' wholesale removals of Indian children from their families. Continuing a process the federal government started during the boarding school era, state social service agencies and courts removed Indian children from their families with no due process and with little reason. Congress heard testimony for years about these practices and constructed a law to combat them that appears simple on its face, but becomes complex quickly. Judge Maldonado at the Little Traverse Bay Bands of Odawa Indians, likens the law to chess--easy to learn, but takes years to master.

The law has two main parts--the jurisdictional and the procedural. Depending on the domicile of the Indian child (who is defined in the law as either a member of a federally recognized tribe, or eligible for membership, and a biological child of a member), a tribe either has full jurisdiction or concurrent jurisdiction with the state. The tribe's interest in the child is at least on par with the interests of the parent and of the child. If the state retains jurisdiction (which may happen for a number of reasons, and can be litigated), there are certain procedural provisions the state must follow. These include a heightened standard of evidence for removal and termination of parental rights, the testimony of a qualified expert witness to the effect that the state provided active efforts to prevent the breakup of the Indian family. The child must be placed with a family that meets certain placement preferences dictated by the law. The only Supreme Court decision on ICWA was a strong endorsement of both the reasons behind, and the requirements of, the law.

ICWA applies to both involunary removals and voluntary adoptions. This second area--when the court must follow certain provisions when parents choose to give a child up for adoption--leads to some of the most contentious litigation. The fact pattern in the Baby Veronica case, now in front of the Supreme Court, where a non-Native mother decides to give up a child for adoption and the Native father and/or tribe objects, can lead to the most difficult of the ICWA litigation.

When I proposed teaching a class on the law at Michigan State, I did some research into how many ICWA cases were appealed in a single year. There are generally between 200-300 on the Westlaw database. But though many cases have been appealed, the Supreme Court has ignored ICWA cert petitions entirely. Except this year, when the Court granted cert in the case--right after I had finalized my syllabus. Which I then changed pretty dramatically. I changed the reading to include the cert petitions and the lower court decision. Usually I require a research paper, but this year I divided the students into groups, and assigned them to be petitioner, respondent, and amici on either side. They have to draft a brief, with each team member (3) picking one portion of the argument. The amici have to figure out their interests, talk with the principal brief writers, and address something that isn't addressed in the principal brief. On the last day of class, the amici become the justices, and the principal teams have to answer their oral argument questions.

Having never done this before, I am not sure how it will turn out. The students seem to appreciate writing something other than a standard law school paper. They know the facts of this case better than I do at this point. They are able to relate key points of law in class back to the case. And given the potential importance of the case, it seemed vital to include it in a fundamental way in the class. It did mean we jumped into the law in the middle with our reading, and then had to track back to cover all of the provisions.

However, if our students are in family law, they are going to run into an ICWA case. And if our students are working for tribes or parents, they will write appellate briefs in an ICWA case. And while it is true most of my students are not likely to practice in front of the U.S. Supreme Court, I have no doubt they will be doing this work in front of various state supreme courts, probably on this very law.

Civil Partnerships vs Marriage: Why Not Both?

Erez Aloni (2011-2013 Center for Reproductive Rights-Columbia Law School Fellow) published in today's HuffPo (here) an op-ed entitled "The Future of Our Relationships."  He writes about anticipated Scottish legislation would permit same-sex marriage in that country.  Scotland currenly permits civil partnerships for same-sex couples (and only same-sex couples).  Here's an excerpt from the piece:  

With Scotland's recent decision to legalize same-sex marriage, it may possibly remove the option of civil partnership, as Norway, Vermont, and Connecticut did. However, Scotland could decide to mimic France, which offers its citizens a menu of options for the legal recognition of relationships. No longer are the choices limited to marriage or informal cohabitation -- all or nothing. Rather, couples can choose to marry, or, instead, to register their partnerships with the state and gain the benefit of state and third-party recognition of their union while avoiding some of the obligations and loaded symbolic baggage that come with marriage.

Think about it this way: civil union -- or state registration -- could be the perfect solution for people in a trial cohabitation period, for the elderly who prefer to avoid a new marriage, and for those who want to eschew matrimony for whatever reason. What is more, the state could set up civil partnerships (as Belgium has, for instance) benefiting other dyadic relationships -- friends, relatives, or caregivers. Under this system, you could design your legal commitment to suit your relationship ties while avoiding awkward societal, familial, and legal hassles.

Aloni makes two important points.  First, there's no reason that civil partnership must be organized around sexual choices. (In other words, "civil partnership" could be available to two elderly sisters who live together and share all expenses, for example.) Second, from a legislative perspective, a jurisdiction could offer intended partners a choice between civil unions and marriage.  In other words, each couple could make a decision about the level of legal benefits and burdens they wish to import as "default terms" of their relationship.

Aloni develops these arguments more fully in Registering Relationships (download available here), forthcoming in the Tulane Law Review.  I think it is a very good piece.

Conference Announcement: Intercountry Adoption

A slightly edited version of an email that I received yesterday:

In February, the Herbert and Elinor Nootbaar Institute for Law, Religion and Ethics at the Pepperdine School of Law will host its 10^th annual conference.  This year we will explore the complexities of intercountry adoption from legal, social, and religious perspectives.  The Nootbaar Institute now welcomes proposals addressing this topic.

If you would like to present a paper or organize a panel of 3-4 presenters, please submit your proposal by October 8, 2012 to dana.zacharia@pepperdine.edu.

If you have questions about the substance of the conference, contact Bob Cochran at robert.cochran@pepperdine.edu or Jay Milbrandt at jay.milbrandt@pepperdine.edu. For questions about the details of the conference, contact Dana Zacharia by email dana.zacharia@pepperdine.edu or by phone (310) 506-6978.

For more information on the Nootbaar Institute and to view details of past conferences, please visit: http://law.pepperdine.edu/nootbaar.

VAWA Is Not Enough: Academics Speak Out About VAWA

Statement by Caroline Bettinger-Lopez, Donna Coker, Julie Goldscheid, Leigh Goodmark, Valli Kalei Kanuha, James Ptacek, Deborah Weissman

 The VAWA reauthorization bill would extend funding for important services; provide additional protections for victims of domestic violence, dating violence, sexual assault, and stalking; and would ensure that tribal courts have jurisdiction over domestic violence that occurs on tribal land.  We urge Congress to pass this bill!

But while we applaud much that is in the bill, we are concerned that like its predecessors, the bill focuses a significant amount of funding on criminal justice responses and much less on economic and racial justice initiatives that would support efforts to stop domestic violence.  We urge Congress to do more to address economic and racial inequalities that make poor women--particularly poor women of color, undocumented women, and Native American women, more vulnerable to intimate violence.  We urge Congress to recognize that economic policies that result in widespread unemployment and downward mobility increase domestic violence.  We further urge Congress to recognize that as important as criminal remedies may be for some victims, a focus on criminal justice remedies will never be sufficient to empower women. Many women who experience domestic violence do not want the current limited menu of criminal justice responses.  We urge Congress, therefore, to consider and support programs that explore alternatives to the current criminal adjudication models, and that address the underlying causes of abuse.

What VAWA Does Right

The VAWA reauthorization bill provides funding for critical services and includes important law reform that will improve women’s access to justice.  The bill expands the public housing protections that were introduced in VAWA 2005, expands protections for immigrant victims and for foreign brides, and makes it clear that tribal courts have jurisdiction over non-Indians who commit acts of domestic violence on tribal land.  The bill continues the requirement of setting aside a percentage of funding to assist tribal governments and coalitions.  Native women experience significantly higher rates of domestic violence and sexual assault than do other women, much of it perpetrated by non-Native persons.  Strengthening the capacity of Indian Nations to protect Native women is a critical step in addressing this gross injustice. The bill authorizes funding to train courts and police in assisting immigrant women who cooperate with law enforcement to receive T- and U-Visas. The bill continues funding for civil legal assistance, training for family court judges and custody evaluators, and efforts to beef up the criminal justice response in tribal jurisdictions and rural areas where it is particularly hard to get police to respond at all.  The bill also provides important assistance for anti-domestic violence programs for youth, expands protections for sexual assault victims, and funds efforts to reduce rape kit backlogs.  The bill expands non-discrimination provisions and clarifies that funding is available for programs that meet the needs of LGBT victims.  The bill provides additional protection against sexual abuse and exploitation for prisoners and probationers by prohibiting someone with criminal justice authority from engaging in sexual activity with a person under his or her authority. The bill also makes national standards for the elimination of prison rape applicable to immigration detention facilities

Beyond VAWA

Congress should do more to stop violence against women by focusing more on the structural inequalities that make women vulnerable to violence.  Funding for criminal justice intervention makes up the largest portion of VAWA funding.  The primary criminal justice grants are the STOP (Services, Training, Officers, Prosecution) grants – funded at $222 million, and the GTEAP (grants to encourage arrest and enforce protection orders) funded at $73 million, creating a combined total of $295 million focused on the criminal justice response.    Compare this with the $57 million dedicated to civil legal assistance, or the $22 million dedicated to training family court judges and court personnel, or the $39 million dedicated to housing for battered women and their children. 

Congress Should Focus Efforts on Economic Justice      Research shows that downward mobility and economic inequality weakens social controls in neighborhoods, giving rise to increases in domestic violence. Research also demonstrates that unstable male employment in heterosexual couples is linked to significant increases in domestic violence.  In response to these threats, federal legislation should encourage jurisdictions to link job training or job placement with batterer treatment programs, incorporate domestic violence awareness and programs within every community-based response to the economic crisis, provide more meaningful and targeted funds to help women achieve economic stability, and amend the Trade Adjustment Assistance and Workforce Investment statutes to include domestic violence screening and services.

Poor women are particularly vulnerable to domestic violence.  Congress should increase dramatically the total funding that goes to assisting poor women with material assistance from housing to emergency financial assistance to small business creation to micro-finance.  The current VAWA bill provides $39 million for housing assistance (a reduction of $11 million compared to prior funding levels), another $2 million to meet the needs of “underserved” populations (augmented by 2% set-asides from STOP and GTEAP), and $1 million for the National Resource Center on Workplace Responses to Domestic Violence.  While these provisions are important, Congress should do more – much more.  

For example, Congress should change the focus of TANF – from a program that focuses on placing recipients into low-wage dead-end jobs, to a program that provides a bridge out of poverty.   In addition, given the clear link between women’s reproductive rights and their ability to live free from violence, Congress should help alleviate abuse of women by fully funding reproductive health care and by eliminating prohibitions on federal spending for abortion.

Congress Should Expand Criminal Justice Options Beyond Arrest and Prosecution   Research demonstrates that the failure of police to respond to domestic violence - as well as the likelihood that police will respond in an over-aggressive manner- is related to racial characteristics of the neighborhood in which the violence occurs.  The VAWA bill addresses this concern by incorporating a strong anti-discrimination provision, by providing grants for training law enforcement and victim advocacy in “underserved” communities, and by providing funding for tribal governments and tribal domestic violence coalitions.   In addition to these efforts, Congress should expand its current focus to fund law-enforcement strategies that encourage a shift from post hoc responses to preventative initiatives with a focus on community problem-solving as an alternative to crime surveillance and arrests.  Many women who experience domestic violence are interested in alternative forms of adjudication than those currently provided by the criminal justice system.  Congress should help women to find justice beyond the limited options currently available in the criminal justice system by funding pilot projects that investigate the effectiveness of restorative justice, truth commissions, and other “alternative” programs in cases of domestic violence.

 Congress Should Spearhead Efforts to Stop Mass-Incarceration   Congress should spearhead efforts to change the trend of over-incarceration of both men and women and should fund more prisoner reentry programs that incorporate anti-domestic violence initiatives.  Mass incarceration destabilizes neighborhoods and increases unemployment – effects that are linked with higher rates of domestic violence.  Dehumanizing prison conditions further reinforce violent behavior rather than curtail it. Congress should change federal sentencing guidelines that result in unfairly long sentences for low-level drug offending and encourage states to do the same.   Congress should lead efforts to do away with “war on drugs” practices that result in the over-surveillance and mass incarceration of poor persons.  These policies have had a devastating impact on low income communities of color.  The incarceration and criminal justice oversight of significant numbers of adults, many of them parents, leaves neighborhoods unstable and creates the circumstances for more intimate violence.  The concentration of disenfranchised ex-felons who face significant obstacles to employment further weakens the social fabric of neighborhoods and increases the likelihood of more domestic violence.  

 Congress Should Increase Funds for Civil Legal Assistance    Congress should increase funds for civil legal representation for poor women.  Poor women of color, immigrant women and undocumented women, and Native American women face substantial bias both from service providers and courts, particularly in child abuse and neglect proceedings and in family court.  It is critical that victims of domestic violence have zealous advocates who can ensure equal access to justice.

 Since 1994, VAWA has broken new ground in federal and state responses to domestic violence, sexual assault and stalking.  At this juncture, rather than continuing to prioritize the criminal justice response to domestic violence, Congress should increase the focus on creative and innovative ways to stop domestic violence, and address the structural inequalities that make women vulnerable to violence, and the myriad needs of those subjected to abuse. 

Selected Reading (list appears after the fold)

Parental Leave?

This past February, Keith Hirokawa at Albany organized the excellent 2011 Northeast Regional Scholarship and Teaching Development Workshop. After dinner on the first night, there was a discussion/panel entitled "Women as Teachers and Scholars." One of the topics of discussion about access to information didn't hit home for me until recently. The heart of the discussion centered around the fact that many women were not sure what the maternity/paternity leave policies were at their school. Additionally, there was a lack of information about what other schools did. (FWIW -- besides the FMLA, we get a course release (3 units) to be taken within a year after the child's birth here at Buffalo).

I was surprised that people didn't know this because we are often well versed in other leave policies. For example, I would be shocked if a room full of junior scholars couldn't tell you their school policies for research leave, junior (or productive scholar) course relief, or sabbaticals. Yet, the lack of information and understanding about family leave policies seems widespread. My general sense from talking to friends (and some are teaching in departments other than law) is that each person's leave is individually negotiated based on the timing of the leave and that person's perceived worth to the institution.

The reasons for this lack of information is probably unsurprising (but perhaps no less disheartening). We tend to be afriad to ask. When we ask about research leaves available to junior faculty during an interview, we send a signal that we are serious scholars looking for time to write. When we ask about maternity leave, we worry that we are sending out the opposite signal. During my interviews, I think I only asked one or two schools about maternity leave -- and only when I felt very comfortable with the person I was talking to or they brought it up. We know that this is a touchy topic legally. Obviously, the prospective employer can't ask you if you are planning to have kids.(but that shouldn't stop them from just generally outlining all leave policies)

The lack of questioning about such policies may also contribute to the ad hoc nature of parental leave. If there is not a large junior faculty or many people questioning such policies, there may not be the motivation to put things in writing. While individuals here and there may benefit from an unwritten policy giving them room to negotiate, I think there is a good reason to have clear parental leave policies. Additonally, making those leaves public will help people at other schools improve their policies. Arguably, this is why many big law firms have such good maternity leave policies -- because everyone knows what the competition is doing.

Remote Descendants and the Real Beneficiaries of Long-Term Trusts

Earlier this week, Wall Street Journal blogger Robert Frank wrote (here) in "Shutting Out the Kids From the Family Fortune" about a wealthy man who left his fortune in trust.  

Wellington R. Burt was a rich timber baron from Saginaw, MI. He died in 1919 with a multi-million-dollar fortune – one of America’s largest at the time.

Yet rather than risk messing up his kids lives with a huge inheritance, he created an unusual will.

He stated that  his fortune would be distributed to the family – but only 21 years after his grand-children’s death.

When I first read Frank's account, I thought the disposition was unremarkable.  Long-term trusts are nothing new.  I knew that if Mr. Burt's trust was to terminate "21 years after his grand-children's death," the instrument probably contained a standard perpetuities clause.  If I had to guess, I would have said that the decedent's will likely read something like this:

The trusts created hereunder shall terminate in any event no later than twenty-one (21) years after the death of the last to die of my grandchildren who are living on the date of my death.

If that were true, then there's not much of a story.  Trusts terminate.  Ho-hum.  In the meantime, the beneficiaries might have received distributions of principal or income or both.  Trusts can protect beneficiaries from their own improvident decisions, etc. etc.  

But this particular story appears to be more complicated.

A series of articles in the local Saginaw (MI) News (here, here, here and here) explains that Mr. Burt died in 1919 with an estate worth $40 million to $90 million.  Very few distributions were made from the trust, except pursuant to a court order.  In other words, Mr. Burt's immediate descendants never benefitted significantly from Mr. Burt's fortunes.

Now that 21 years has passed since the death of the last of Mr. Burt's grandchildren who were alive on the date of his death, 12 of Mr. Burt's remote descendants will divide the trust assets upon its termination:

Today, Christina Alexander Cameron is a 19-year-old Lexington, Ky., basketball and tennis fan with sights set on a nearby community college.

By month’s end, she’ll become a multimillionaire thanks to a man she never met, who earned his fortune a century earlier in a Michigan community more than 400 miles away.

Cameron is the youngest of 12 heirs of Wellington Burt’s estate. While she’s never met most of the other beneficiaries, by month’s end, she will split with them her great-great-great grandfather’s long-dormant inheritance, which a local probate judge valued between $100 million and $110 million.

(Source here.)

Ms. Cameron stands to collect $2.6 million to $2.9 million from the estate.  That's a nice chunk of change, no doubt, but it's not eye-popping.  What is eye-popping is that the trust's current value is $100 million to $110 million.  How can that be, if Mr. Burt's estate had a date-of-death value of $40 million to $90 million?

The trustee,  Citizens Bank Wealth Management, has asked to retain a reserve for termination fees and expenses, as is standard in these types of proceedings.  If I were representing the trustee, I'd be worried about more than just termination fees, though.  I'd be worried about a breach of fiduciary duty claim due to poor trust performance.  

As a former Trusts & Estates lawyer, I am proud to have a Cadillac Escalade of an estate plan, even though I have Tata Nano in terms of assets.  When I first started teaching, I used to tell my students that I never met a trust I didn't like.  But the longer I've been out of practice (8 years now), the more ambivalent I feel about certain trusts.  

Who really benefits from a trust like the one created by Mr. Burt?  Seems to me like the big winners are the trust professionals (bankers and lawyers) whose fees have and will be paid out of the trust.  

H/T James Healy

Family Law Gone Bad? Mom, Disabled At Childbirth, Is Kept From Her Children

The LA Times has a remarkable account of a woman, Abbie Dorn, who - during birth of her triplets - suffered medical errors that left her without the ability to move or to communicate, except by blinking.  What's amazing and, to me, horrible,  is that the kids' dad successfully kept the three children away from their mom for over three years.  According to the Times:

Abbie has held her babies just once: the day they were born. She and her husband, Dan, have since divorced, and they are locked in an angry legal struggle over the children they once dreamed of and prayed for.  Abbie is fighting for visitation through her parents, Susan and Paul Cohen, who have been named her conservators. Dan has argued in court that seeing their disabled mother would cause the children grave harm and that he, as their only "fit" parent, has the ultimate right to make decisions about their care.

Here we have a case where powerful competing interests converge badly.  First, there is a parent's strong interest in making decisions free from state involvement.  Clearly, the only parent with such decision-making capacity is the dad.  Second, there is the parent's strong interest in having a relationship - of whatever kind - with her child.  Abbie Dorn may not be able to advocate for that interest, but that fact doesn't undermine its existence.  Third, there is the childrens' strong interest in having a relationship - of whatever sort - with their mom.  (In my view, that interest is no weaker for the fact that mom has very limited capacities.)  And finally, there is society's strong interest in according full respect and humanity to people with disabilities.  

How this plays out in family law, I'm not sure.  But I believe that the dad is making a terrrible decision for the girls.  And my instinct is that society, in the form of the court system, is (through delay and inaction) making a terrible decision bynot vindicating the interests of the children, the mom, and society.  It's a painful case, and one that shows how a  parent-rights model has at least the potential to produce bad results all around.

Sally Struthers, Uncle Sam and Tax Discrimination Against International Adoptions

Sally Struthers (of Archie Bunker fame) used to urge U.S. television viewers to sponsor a deserving child in another part of the world.  For a few dollars per month, a child could receive crucial healthcare! Food for the entire family! A new lease on life!  The sponsor would receive a photo of a sponsored child or perhaps even a letter from time to time.  It was, however, a decidedly distance relationship – i.e., sponsorship, not adoption.  Furthermore, the “sponsorship” of “a child” was not earmarked for any one particular individual, but rather for a charitable organization, so transfers qualified for an income tax deduction.

For Americans who adopt (not sponsor) children born outside the United States, some form of tax benefit has been available since 1997.  In 2010, the Patient Protection and Affordable Care Act (HR 3590) and the companion Health Care and Education Reconciliation Act of 2010 (HR 4872) made massive changes to the health care law and tweaked the adoption tax credit. For tax years 2010 and 2011, the adoption tax credit is $13,170.  It’s refundable, too.

Those bills became law in March, but I hadn’t focused on the changes to the adoption tax credit (changes to the tax law can be sneaky like that, popping up in all sorts of bills).  Until I taught tax credits in my basic Federal Income Tax class this semester, I hadn’t realized that adoptions of children who are U.S. citizens or residents are treated more favorably for income tax purposes than are adoptions of non-U.S. citizens or residents. 

Over-simply stated, a tax credit is available for expenses related to an international adoption only if the adoption becomes final, but the same finality rule does not apply to expenses for a U.S. adoption. 

What might be the policy reasons for this tax discrimination?  Is it because significant tax revenue is at stake?  According to U.S. State Department figures (see here), the number of international adoptions has increased steadily.  In 1999, there were 167,369.  In 2000, there were 18,477.  In 2001, there were 19,237.  (See here.)  If there were a correlation between completed adoptions and failed adoptions, one could make a rough estimate of the number of taxpayers who could have benefitted from an adoption tax credit, but for the fact they could not or did not finalize their international adoption.

Alternately, is the different tax treatment of U.S. and international adoptions just one more example of attempts to influence social policy through the tax laws?  Maybe, but I wonder whether tax credits factor significantly into a decision to adopt a U.S. citizen versus a non-U.S. citizen. 

Germany Allows Embryo Screening For Genetic Defects

Last week, the Federal Supreme Court in Leipzig ruled in support of a Berlin gynecologist who had screened embryos created during IVF for genetic defects prior to implanting them. This is an important case in Germany, which has quite restrictive laws on fertility treatments and bans embryo research (gated survey of IVF guidelines and regulations of sovereign nations or political subdivisions thereof).  I previously blogged about Germany’s strict embryo protection laws, which have caused some researchers to move to other jurisdictions.

According to the Washington Post:

The doctor had treated three couples between 2005 and 2006 who could not get pregnant naturally. In all three cases, one of the partners carried the risk of a congenital genetic illness that would have "very likely led to a miscarriage, the death of the newborn right after the delivery or the birth of a critically ill child," the court wrote.

I previously blogged about PGD, embryo screening for sex selection, and the surrounding ethical debates here.

Call for Papers On "Our Children – The World’s Children: The Effects of Globalization on Children"

The AALS Section on Children and the Law has issued a call for papers for the 2011 San Francisco meeting on "Our Children --  The World's Children: The Effects of Globalization on Children." 

The program, which will be Friday, January 7, 2011, from 4:30 to 5:45 p.m., is co-sponsored by the Sections of Family and Juvenile Law, International Law, Immigration Law and International Human Rights.  The Section seeks three presenters for this program. It is hoped that the chosen presenters will shed light on the legal circumstances of children in the United States and abroad whose lives are increasingly impacted by the movement of people, goods and wealth around the globe. 

The Section invites all interested faculty members of AALS member and fee-paid schools to submit papers dealing with any aspect of the foregoing topic. A review committee consisting of members of the Executive Committee of the Section on Children and the Law will review submissions and select papers for inclusion in the program. Papers will be selected on the basis of their quality, originality and engagement with the program theme. 

If you are interested in presenting a paper, please submit an abstract of not more than 500 words by September 1, 2010. In addition to an abstract, you may also submit a complete draft of your paper. Please email your submission to Cochrand@wlu.edu. Please also include the phrase "Children and the Law Call for Papers" in the subject line of your email. Authors of selected papers will be notified by October 1, 2010. 

Papers that have already been selected for publication are eligible for consideration, provided that they will not have been published by the time of the annual meeting. Papers posted on SSRN or similar prepublication resources before the annual meeting are eligible. Participating panelists are free to publish their papers wherever they choose. For interested panelists, The Whittier Journal of Child and Family Advocacy has expressed a willingness to publish papers from the program. Call for Papers participants will be responsible for their annual meeting registration fee and travel expenses. 

Please direct questions and requests for additional information to: Professor Joan M. Shaughnessy Chair, AALS Section on Children and the Law, Washington and Lee School of Law, Sydney Lewis Hall, Lexington, VA 24450, 540-458-8512, shaughnessyj@wlu.edu

Student Loans and the Second Amendment

Family squabbles over money?  Old news.  But suing one of your parents to enforce a promise to pay for a college education?  We don't see that every day.  Story here (hat tip to Lounge fan Mike Cassidy).

And Greg Abbott (current Texas AG and former Texas Supreme Court Justice) weighs in on the recent SCOTUS opinion in McDonald v. City of Chicago with this editorial.

Aaron (Hank and Tommie), Brett (George and Ken), Conigliaro (Billy and Tony), Etc.: Sibling Behavior On The Diamond

Readers with an interest in both baseball and sibling behavior may find interesting a recent article entitled Birth Order and Risk Taking in Athletics:  A Meta-Analysis and Study of Major League Baseball, published in the current issue of Personality and Social Psychology Review and co-authored by Frank Sulloway and Richard Zweigenhaft.  Here's the abstract:

According to expectations derived from evolutionary theory, younger siblings are more likely than older siblings to participate in high-risk activities.  The authors test this hypothesis by conducting a meta-analysis of 24 previous studies involving birth order and participation in dangerous sports.  The odds of laterborns engaging in such activities were 1.48 times greater than for firstborns (N = 8,340).  The authors also analyze performance data on 700 brothers who played major league baseball.   Consistent with their greater expected propensity for risk taking, younger brothers were 10.6 times more likely to attempt the high-risk activity of base stealing and 3.2 times more likely to steal bases successfully (odds ratios).  In addition, younger brothers were significantly superior to older brothers in overall batting success, including two measures associated with risk taking.  As expected, significant heterogeneity among various performance measures for major league baseball players indicated that older and younger brothers excelled in different aspects of the game.

I am unable to find a free-access link to the article.  But The New York Times discusses the article in this story.

Trivia question:  which trio of brothers aggregated the most career hits?  Click here for the answer.

What Religion Is Your Egg?

 Israel has always posed many interesting issues relating to oocyte donation.  Now, according to the WSJ, things are heating up even more. For example, under current Israeli law, only women already undergoing fertility treatments can donate their eggs, leading to oocyte shortages and reproductive tourism.  (For prior Lounge discussions of reproductive tourism by UK couples see here and here).

For example, from the website of IVF@Israel:

Egg donation is subjected to restrictions by the Israeli Ministry of Health. A new "egg donation" law is expected in the "near" future, hopefully. Currently, availability of eggs for donation in Israel is low, since the law limits donation from IVF patients only. However, we do offer egg donation in Kiev Ukraine (a major European airline hub). The IVF in Kiev had received formal recognition by the Israeli Ministry of Health, and is run by Israeli physicians. Donors are healthy, fertile women, who undergo routine tests as recommended by the American Society for Reproductive Medicine (ASRM).

When I was teaching a course on Taboo Trades and Forbidden Markets in Israel earlier this year, the country was still reeling from the scandal at an Israeli fertility clinic in Romania.  Thirty fertility center employees, including two Israeli physicians, were arrested in connection with allegations that the Sabyc fertility clinic in Romania made payments to human egg donors, a practice which is illegal there.

In part because of these and other scandals, new legislation designed to ease the oocyte shortage in Israel has been introduced, which would expand the pool of eligible egg donors. But, according to the WSJ:

In an effort to win support from the Knesset's ultra-Orthodox factions, the bill also has a provision requiring a woman undergoing fertility treatments in Israel to do so only with eggs from a woman of the same faith.

The debate has raised precarious ethical questions. "The notion that there is Jewish blood is offensive," said Zev Chafets, a former government spokesman who also has written about reproductive medicine in Israel. When people make such a distinction, he says, "'It's not about science; it's about race. It's saying, 'We don't want outsiders, and our criterion is blood.'"

But the legislation is also expected to “increase the already high demand for Jewish eggs in the U.S., and could call into question the religious status of thousands of children born to Jewish women around the world.”  In the U.S., there have been reports of a shortage of egg donors from particular ethnic groups, especially Jewish, East Asian and East Indian, with resulting price premia for such donors.

(HT: Danny Sokol)

Related Posts:
Egg Versus Sperm Donation (Part 982)
The Value of Smart Eggs

U.K. Oocyte Raffle


How Is An Egg Donor Like A Prostitute?



Like A Virgin? We Sell That Here!

Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research

A New Meaning To "Nest Egg"

U.K. To Reconsider Payments to Egg and Sperm Donors

Adoption: Altruism versus Selfishness

 Tyler Cowen, in response to a post from Bryan Caplan, argues:

Bryan writes:

On adoption: I think that adoption is a noble, generous act, and admire those who do it.  But I personally don't want to adopt.

I can't disagree with any word in that first sentence, but it leaves me uneasy.  Bryan's forthcoming book -- Selfish Reasons to Have More Kids -- is about...selfish reasons to have kids.  (It will, I promise you, be very interesting and make a splash.)  So here is my challenge to Bryan: write down the ten most important selfish reasons to have kids and then ask how many of them apply to adopted children.  Most of them will.  Which isn't to say those are the only reasons to adopt (or have) kids, but they are real nonetheless.  So why do the adopting parents seemingly get described as selfless martyrs?  It's almost as if the selfishness, without the replication angle, has to be stuffed into a box somewhere.  Do all those selfish reasons for having kids require replication as a kind of amplifying mechanism, without with we are left with the slightly underwhelming purely altruistic motives?

From the remainder of the post, I gather that Cowen does not necessarily agree that the primary reasons to have (or adopt) children are selfish ones, though he leaves this aside for the sake of argument.  Instead, the point is that both biological and adoptive parents become parents for similar reasons – selfish ones, under Caplan’s definition -- yet Caplan believes the reasons of the biological parent are primarily selfish, whereas those of the adoptive parent are depicted as primarily generous. 

This is to me a quite fascinating post, as the (ir)relevance of motive is a topic I cover at length in both teaching and research (See, for example, prior posts here and here).   And I’ve frequently wondered why one transaction is routinely characterized as at least partially altruistic (e.g. egg donation, blood donation, surrogacy), whereas reasonably similar transactions are assumed to be largely or wholly selfish (e.g. sperm and plasma donation).  

But this difference in the presumed motives of adoptive versus biological parents is not one that had occurred to me before.  In prior work, I’ve theorized that characterizing particular transactions as selfless or altruistic is a means of normalizing otherwise jarring events – for example, mothers are supposed to love their children, not sell them for profit.  Thus the characterization of commercial surrogacy and oocyte donation as primarily altruistic, selfless acts may reduce the dissonance associated with cash-for-motherhood transactions. 

Is it possible that a similar move is at work with adoption?  And, if so, what is the discord that must be normalized?

Adoption is no longer particularly unusual in this day and age, of course – many of us adopt children ourselves or know others who have done so.  But, as Viviana Zelizer documents, the sentimental value of children (the economically “worthless,” but sentimentally “priceless” child, as she puts it) is a relatively recent development.  Historically, children who were not genetic offspring (thus serving no evolutionary impulse) were valued primarily for their ability to contribute to household income.  (I discuss this social transformation and its impact on the baby market in more depth here).

Today’s adoptive “priceless” children provide neither gene survival nor economic contribution.  This would, it seems, make today’s adoptions selfless acts, as judged by historical standards.

Indiana Inheritance Practices Before the Civil War

 It's a great pleasure to talk about Jason Kirklin's recent posting on ssrn, "Measuring the Testator: An Empirical Study of Probate in Jacksonian America," which will appear in the Ohio State Law Journal's next volume.  The article is an empirical study of who left wills and what they did with their property in a rural Indiana county in the years leading into Civil War.  Here is his abstract:

“Measuring the Testator” employs an empirical study of wills probated in Hamilton County, Indiana, from 1840 through 1852. It asks who used the probate process and what testators did with their wealth. It reveals that testators kept property within the family, often through implied testamentary trusts. Those trusts provided for loved ones after the testator’s death and also by and large treated heirs equitably. The paper responds to studies examining how testators have behaved by filling a gap in the literature. There has not yet been a comprehensive study of these questions regarding testation in the old northwest (what is today considered the midwest).

In this respect, “Measuring the Testator” provides an important comparison to several recent studies, including one by Stephen Davis and Alfred Brophy, who identified the pre-Civil War era as an important period for the study of testation and the probate system in the deep South. The paper examines similar issues with its eye trained on a northern county in order to test some of the findings of Davis and Brophy, particularly as to the use of trusts, the treatment of widows, and the distribution of property to female and male issue. In so doing, "Measuring the Testator" seeks to present a clearer picture of similarities and differences in patterns of testation between North and South in the years leading to Civil War. It theorizes that differences in distribution are due at least in part to testators’ different levels of wealth.

 This is an exciting projevt for a number of reasons.  First, it's evidence of the revival of interest in scholarship in trusts and estates -- and particularly the empirical investigation of the probate process.  There are lots of records just waiting serious study in courthouses throughout the country, which promise to tell us much about how we as a people think about family relationships and property transmission; and also how we use the technology of law (often trusts, but even more frequently wills) to manage and pass on property.  Second, it's evidence of the increasing importance of legal history in mainstream law journals.  I've been concerned of late that major law journals seem to have been cutting back on legal history, so I'm particularly happy that the editors there are publishing a serious and original work of legal history.  Third, I find this interesting because it's a great comparison with the testators that Stephen Davis and I studied in Greene County, Alabama at around the same time.  Kirklin found fewer trusts than we did -- perhaps an artifact that his Indiana testators aren't as affluent as our Alabama testators.  But it might also be a sign that the Indiana testators spent less time trying to hold property strictly within the family (or less time trying to control what their issue did with their property).  As I say, this is an exciting project and it invites work in other regions of the country (like Massachusetts, Pennsylvania, and Ohio, and Virginia and North and South Carolina), as well as in more affluent counties in Illinois and Indiana.  People, particularly students, looking for a nice topic for an essay, note, or article, could easily use Kirklin as a model.

I hope Kirklin's work is the start of a trend.

The image in the upper right is of the Hamilton County Courthouse; the image on the lower right is the William Conner house in Hamilton County, from the Library of Congress' Historic Buildings Survey.

Defective Sperm No Basis For Products Liability Suit

The 3rd U.S. Circuit Court of Appeals has ruled in Donovan v. Idant Laboratories that genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit, because it would recognize a claim of "wrongful life."  According to Law.com, the case:

Upholds a June 2009 decision by U.S. District Judge Thomas N. O'Neill Jr. that rejected claims by both a mother and a daughter who suffers from Fragile X syndrome, a mutation known to cause a group of maladies that include mental retardation and behavioral disorders.

O'Neill had initially ruled that, under New York law, the sperm bank could be sued under products liability laws because "the sale of sperm is considered a product and is subject to strict liability." But two months later, O'Neill reversed himself and dismissed the entire case, predicting that the New York Court of Appeals would reject the claim. "I find it more likely than not that it would find that the injuries alleged in plaintiff's strict liability and warranty claims are essentially claims for wrongful life."

The Third Circuit affirmed, stating: “Regardless of whether a particular cause of action is denominated as one of contract, products liability, or something else, all of the claims on behalf of B.D. suffer from the same defect: the lack of a cognizable injury.”  Said the Court:

Wrongful life cases pose particularly thorny problems in the damages context:  “Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependant upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence.  This comparison the law is not equipped to make.”  Becker, 46 N.Y.2d at 412.

For procedural geeks, the lower case raised some interesting choice of law issues. While both New York and Pennsylvania have "blood shield statutes" that prohibit products liability suits stemming from blood or blood products, Pennsylvania's blood shield statute includes human tissues other than blood, whereas New York's statute includes only blood and its derivatives:

O'Neill found that there was a "true conflict" between the laws of the two states because "semen is not a blood derivative," and Brittany Donovan would therefore have a valid cause of action under New York law, but not under Pennsylvania law. . . .

Although other states' blood shield laws and Section 19 of the Restatement (Third) of Torts all say that human tissue and organs are included in the list of products that are exempted from strict liability law, O'Neill found that "the relevant New York statute does not and no case law has extended the statute to also exempt human tissues like sperm."

For a history of blood shield laws and an argument that the blood industry’s response to the HIV/AIDS epidemic in the early 1980’s strongly suggests that things would have turned out better for some, perhaps many, recipients of blood products had strict-liability rules been in effect, see Clark C. Havighurst, Trafficking in Human Blood: Titmuss (1970) and Products Liability (PDF).  The full symposium volume is here:

 

Volume 72	Summer 2009	Number 3
SHOW ME THE MONEY: MAKING MARKETS IN FORBIDDEN EXCHANGE Kimberly D. Krawiec Special Editor
Foreword                      PDF		Kimberly D. Krawiec	i
Trafficking in Human Blood: Titmuss (1970) and Products Liability                      PDF		Clark C. Havighurst	1
Altruism, Markets, and Organ Procurement                      PDF		Julia D. Mahoney	17
Gender and the Value of Bodily Goods: Commodification in Egg and Sperm Donation                      PDF		Rene Almeling	37
Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market                      PDF		Kimberly D. Krawiec	59
Commercial Surrogate Motherhood and the Alleged Commodification of Children: A Defense of Legally Enforceable Contracts                      PDF		Hugh V. McLachlan J. Kim Swales	91
Surrogacy and the Politics of Commodification                      PDF		Elizabeth S. Scott	109
The Debt Financing of Parenthood                      PDF		Melissa B. Jacoby	147
Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform                      PDF		David E. Bernstein Thomas C. Leonard	177

 

 

(HT: Kathy Bradley)

Related Posts:

Does The Number 1700 Cause Sperm To Go Where It Shouldn’t?
Celebrity Look-Alike Sperm Sale
U.K. To Reconsider Payments to Egg and Sperm Donors
More Live Sperm, Dead Donor
Live Sperm, Dead Donor . . . No Case
No End To Men

The Value of Smart Eggs

A few weeks ago, Aaron D. Levine (Assistant Professor, Georgia Institute of Technology) visited my Taboo Trades and Forbidden Markets seminar in advance of the release of his Hastings Center Report: Self-Regulation, Compensation, and the Ethical Recruitment of Oocyte Donors.  The report represents an important effort at bringing empirical analysis to bear on questions that are often answered largely through anecdote: who are egg donors, how much are they paid and why, and how are they found? (Paul Caron has links to the extensive media coverage).

The report uses a novel data set—a collection of oocyte donor recruitment ads published in college newspapers across the country—to assess the extent to which advertisements that recruit donors comply with the ASRM guidelines for compensating oocyte donors, which specify maximum compensation levels of $5000, in the absence of justification, and prohibit compensation above $10,000.  Levine finds that $5,000, the maximum compensation level acceptable under the ASRM guidelines without justification, was both the modal and median value among the set of 105 advertisements.

Roughly 50% of the advertisements offered compensation in excess of $5000 and roughly 23% offered compensation in excess of $10,000.  Some of the ads offering more than $5000 and most of those offering above $10,000 also contained appearance or ethnicity requirements, which is prohibited by the ASRM compensation guidelines.   Finally -- and this is the portion of the report that has generated the most media attention -- Levine’s data strongly suggest that donor agencies and couples are placing more value on oocytes donated by women with higher SAT scores, which would violate the ASRM guidelines.   Indeed, in one model, an increase of one hundred points in the SAT score of a typical incoming student increased the compensation offered to oocyte donors by $1,930 for general advertisements placed by donor agencies; by $3,130 for advertisements placed on behalf of a specific couple; and by $5,780 for advertisements placed by a donor agency on behalf of a specific couple.

It’s a testament to Aaron’s good nature that he’s still friendly to me, after I first invited him to Duke for a workshop, then attacked his paper for an hour and a half.  (I did buy several rounds of drinks at the Washington Duke as reimbursement, as I’m a strong believer in just compensation).  Though Levine’s research brings much-needed empirical insight to bear on questions of egg donor compensation, I very much disagree with the report’s normative position – that the ASRM oocyte donor compensation restrictions are justifiable and their violation a cause for industry, public, and government concern.  

The report’s conclusion relies on three highly contestable assumptions: (1) that oocyte donor compensation is commodifying; (2) that oocyte donor compensation, especially at high levels, is coercive or exploitative; and (3) that selecting and compensating oocyte donors on the basis of personal characteristics, such as ethnicity or intelligence, is ethically problematic.  The first two assumptions – commodification and coercion – are ones that I’ve critiqued at length, both in recent scholarship (see here and here) and on this blog (see the links below). 

But the third assumption – that selecting and compensating oocyte donors on the basis of personal characteristics presents ethical problems – is dubious as well.  The fertile have always selected reproductive mates based on qualities such as appearance, race, ethnicity, and intelligence.  Their sorting process is normally more subtle than a four or five figure advertisement in a prestigious college newspaper, but the infertile have fewer options at their disposal and the end result is the same – some traits are more highly valued in a reproductive mate than others, a realization that should have no shock value among even the most sheltered of academic sensibilities.

In his response accompanying the report, John Robertson (Texas, law) questions whether there are really any ethical problems raised by the study – after all, Levine finds compliance with the ASRM guidelines in at least half the advertisements in his sample.  I would argue, however, that Levine’s study highlights a serious ethical issue, though it is not infertile couples or the agencies working on their behalf whose behavior is ethically troubling.  It is ASRM’s paternalistic and misguided attempts to control oocyte donor compensation through the same type of professional guidelines that courts have rejected when employed by engineers, lawyers, dentists, and doctors that should raise an ethical red flag.

Related Posts:
U.K. Oocyte Raffle
How Is An Egg Donor Like A Prostitute?

Like A Virgin? We Sell That Here!


Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research


A New Meaning To "Nest Egg"


U.K. To Reconsider Payments to Egg and Sperm Donors

For Love Or Money Conference Post-Script (Part II)

In my last post, I began a breakdown of the recent For Love or Money conference at Wash U, which I continue below.

In Testing as Commodification, Kate Silbaugh (Boston University, Law) argues that debates within the standardized testing literature represent a split similar to the one witnessed in traditional debates on the commodifying effects of market exchange:  those who extol the virtues of a common metric by which to make comparisons and evaluations, on the one hand, versus those who argue that test scores have swallowed other notions of the public good in education.  Because Kate is special, she had two discussants: Kieran Healy (Duke University, Sociology) and me. 

Healy argued that the U.S. education system has been dysfunctional for some time, and questioned whether standardized testing has really been the problem for public education that Silbaugh contends.  He focused instead on other social and organizational issues that contribute to problems in the standardized testing movement and, indeed, in U.S. public education more generally.  I invoked the “dark side” of commodification arguments, contending that they may be: (1) a catch-all, in that not all of the objections to markets (or standardized testing) that are packaged under the commodification rubric are necessarily about commodification, nor the inevitable result of market exchange or standardization; (2) political, in that they are sometimes raised by constituencies in pursuit of a self-interest that is at odds with broader social goals, and (3) elitist, in that the freedom to ponder the value of social goods other than individual economic betterment is a luxury not available to all.  We both questioned whether most of the objections to standardized testing are really of the commodification variety.

The next morning, Larry Ribstein (University of Illinois, Law) and commenter Bob Ellickson (Yale University, Law) discussed Ribstein’s paper, Incorporating the Hendricksons, which argues that differences between domestic and business associations suggest that using the same types of standard forms for both types of relationships can cause the forms to lose much of their coherence and therefore value, which would hurt both marriage and business law.   Ribstein’s paper was prompted by specific proposals to apply the law of business associations to the family, especially non-traditional families, including a recent paper by conference participant Adrienne Davis (see below).  I thought that Ribstein and Ellickson (who, as most readers know, has written extensively on private ordering, both within the family and in other close-knit communities) agreed on more things than they disagreed on.  Importantly, both felt that the laws governing business associations were a poor fit for family relationships, disputes, and dissolutions.

Finally, Susan Appleton (Washington University, Law) and Susan Stiritz (Washington University, Women, Gender, & Sexuality Studies) presented “Money Can’t Buy Me Love”:  Sex Therapy in the Age of Viagra, which examines the history of sex therapy and its contemporary practice in the age of Viagra.  I could tell you more, but none of it would be as effective as this video, shown by the two Susans (as I had begun to refer to them by the end of the weekend) as part of their presentation:

Discussant Adrienne Davis (Washington University, Law) took issue with the particular views of sex, equality, intimate relationships, and sex therapy envisioned by the paper, arguing that it reflected a particular normative view of acceptable sex and sexual relationships that was not universally shared. 

That’s all, folks!  Since no one would want to have to follow the highly animated Viagra discussion, we closed the show there.  All of this, of course, doesn’t even address the most meaningful aspect of the conference – the discussions among the participants.  The event was specifically designed to engender active discussion and, especially, cross-disciplinary discussion.  And thanks to our wonderful group of participants, who diligently read in advance and came prepared with interesting questions and comments, I think we accomplished that.  Thanks to all for their efforts, and especially to Marion and the other Wash U folks, who really made the whole thing come together.

Above Image: The Love of Money, By: Rein Nomm 

For Love Or Money Conference Post-Script (Part I)

Last week, I attended the For Love Or Money Conference at Washington University in St. Louis, co-organized by Marion Crain and me, which I blogged about earlier.  The event was a success, I think – the papers and comments were interesting and the discussion lively.  The conference brought together folks from different disciplines, including law, economics, sociology, psychology, and gender studies, as well as from different subfields within law, such as corporate, family, property, contract, and other legal disciplines. 

I’ll refrain from saying too much about the papers or the comments at this time, as most folks will continue to revise their drafts in response to feedback at the conference, and the discussants have not yet written their papers. But I’ll at least attempt to give a brief flavor of what transpired so that you can make a note to keep an eye out for papers that might interest you as people post them to SSRN over the summer (which is only weeks away now, hallelujah!) 

Julie Nelson (Economics, University of Massachusetts Boston) kicked off the show with, Does Profit-Seeking Rule Out Love? Evidence (or Not) From Economics and Law, which argues that corporate profit-maximization is not seen in practice nearly as often as generally assumed, nor mandated by the "laws of economics," nor commanded by statutory or case law. Rather, Nelson contends, the idea was invented and has maintained its power to shape our thinking through mutually-reinforcing historical, social, political, and psychological processes. Bill Bratton (Georgetown, soon to be Penn, law) was the respondent, who – in addition to his substantive comments -- humorously noted that he liked the article because it reminded him of some his own early articles, though he eventually stopped writing on the topic because no one paid attention to him. 

Yuval Feldman (Bar-Ilan University-Israel, Law), who flew all the way from Israel for the event, next presented The Complexity of Disentangling Intrinsic and Extrinsic Compliance Motivations: Theoretical and Empirical Insights From the Behavioral Analysis of Law. The paper seeks to improve our understanding of the interrelations between "love" and money in legal contexts, through discussion of a series of theoretical dilemmas related to the interplay between intrinsic and extrinsic compliance motivations. Discussant Rebecca Hollander-Blumoff (Washington University, Law), whose research focuses on the intersection of law and psychology in the context of dispute resolution, offered thoughtful commentary on the nature of extrinsic versus intrinsic motivations and, indeed, whether and why such distinctions matter.

I very much enjoyed the lively exchange between Laura Rosenbury (Washington University, Law) and her discussant, Ethan Leib (University of California-Hastings, Law) on Friends at Work.  From what I gather, this is an ongoing debate between these two on the nature of friendship and its proper place in law.  At least some of the debate seemed to revolve around whether “friends” have sex (with Rosenbury believing that they could and Leib that they could not).  I’m sure they’re appalled that this is my primary takeaway from the exchange, but what do you expect when two interesting, intelligent people start arguing about sex halfway through a long conference afternoon?

Marion Crain (Washington University, Law) and her discussant, Scott Baker, (Washington University, Law) argued less (and failed to mention sex at all, as I recall), but were still engaging. In Arm's Length Intimacy: Employment as Relationship, Crain argues that employment should be reconceptualized as an affective and often intimate relationship, one that is far richer than the economic model of an exchange of dollars for labor that currently guides employment policy and law.  Baker responded that employment relationships were different from intimate ones in important ways that suggest the law should continue to distinguish employment relations from intimate ones.

Mary Anne Case (University of Chicago, Law) and discussant Bob Pollak (Washington University, Economics) discussed Case’s paper, Enforcing Contracts in an Ongoing Marriage.  Case argues that marriage in the U.S. by and large remains subject to what Saul Levmore has dubbed the rule of “Love It Or Leave It:” Courts generally are closed to those who seek judicial enforcement of bargains or judicial resolution of disputes in an ongoing marriage and Case questions why this should be so.  Pollak, who has written extensively on matters relating to the economics of the family, offered many thoughtful insights and suggestions on bargaining within the family unit.

I'll be back later with Part II.