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RECONCEIVING THE FAMILY
This book provides a critical examination of and reflection on the American Law
Institute’s Principles of the Law of Family Dissolution: Analysis and Recommenda-
tions, arguably the most sweeping proposal for family law reform attempted in the
U.S. over the last quarter century. The volume is a collaborative work of individuals
from diverse perspectives and disciplines who explore the fundamental questions
about the nature of family, parenthood, and child support. The contributors are
all recognized authorities on aspects of family law and provide commentary on the
principles examined by the ALI – fault, custody, child support, property division,
spousal support, and domestic partnerships, utilizing a wide range of analytical
tools, including economic theory, constitutional law, social science data, and lin-
guistic analysis. This volume also includes the perspectives of U.S. judges and
legislators and leading family law scholars in the United Kingdom, Europe, and
Australia.
Robin Fretwell Wilson is a Professor of Law at the University of Maryland School of
Law. She is the co-editor of The Handbook of Children, Culture & Violence and has
published articles on the risks of abuse to children in the Cornell Law Review, the
Emory Law Journal, the San Diego Law Review, and the Journal of Child and Family
Studies.Professor Wilson has testified on the use of social science in legal decision-
making in Joint Hearings before the Federal Trade Commission and Department
of Justice. A member of the Executive Committee of the Family and Juvenile Law
Section of the Association of American Law Schools, Professor Wilson frequently
lectures on violence to children, including presentations at Yale University’s Edward
Zigler Center for Child Development and Social Policy and the National Society
for the Prevention of Cruelty to Children in London, England.
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Reconceiving the Family
Critique on the American Law Institute’s
Principles of the Law of Family Dissolution
Edited by
Robin Fretwell Wilson
University of Maryland School of Law
iii
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
The Edinburgh Building, Cambridge ,UK
First published in print format
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© Robin Fretwell Wilson 2006
2006
Information on this title: www.cambrid
g
e.or
g
/9780521861199
This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
- ---
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Cambridge University Press has no responsibility for the persistence or accuracy of s
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
hardback
eBook (EBL)
eBook (EBL)
hardback
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In Memory of Our Colleagues,
Lee Teitelbaum and David Westfall
v
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vi
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Contents
Acknowledgments page xi
Foreword, by Mary Ann Glendon xiii
List of Contributors xvii
Introduction 1
Robin Fretwell Wilson
PART ONE. FAULT
1Beyond Fault and No-Fault in the Reform of Marital Dissolution Law 9
Lynn D. Wardle
2ACity without Duty, Fault, or Shame
28
Scott FitzGibbon
PART TWO. CUSTODY
3Partners, Care givers, and the Constitutional Substance of Parenthood 47
David D.Meyer
4Custody Law and the ALI’s Principles:ALittle History, a Little Policy,
and Some Very Tentative Judgments
67
Robert J. Levy
5Undeserved Trust: Reflections on the ALI’s Treatment of De Facto Parents
90
Robin Fretwell Wilson
PART THREE. CHILD SUPPORT
6Asymmetric Parenthood 121
Katharine K. Baker
7Paying to Stay Home: On Competing Notions of Fairness
and the Imputation of Income
142
Mark Strasser
PART FOUR. PROPERTY DIVISION
8 The ALI Property Division Principles: A Model of Radical Paternalism? 163
John DeWitt Gregory
vii
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viii Contents
9Unprincipled Family Dissolution: The ALI’s Recommendations
forDivision of Property
176
David Westfall
10 You and Me against the World: Marriage and Divorce from
Creditors’ Perspective
195
Marie T.Reilly
PART FIVE. SPOUSAL SUPPORT
11 Back to the Future: The Perils and Promise of a Backward-Looking
Jurisprudence
209
June Carbone
12 Money as Emotion in the Distribution of Wealth at Divorce
234
Katharine B. Silbaugh
13 Postmodern Marriage as Seen through the Lens
of the ALI’s “Compensatory Payments”
249
Katherine Shaw Spaht
PART SIX. DOMESTIC PARTNERSHIP
14 Domestic Partnership and Default Rules 269
Margaret F. Brinig
15 Private Ordering under the ALI Principles:AsNatural as Status
284
Martha M. Ertman
16 Marriage Matters: What’s Wrong with the ALI’s Domestic
Partnership Proposal
305
Marsha Garrison
17 Domestic Partnerships, Implied Contracts, and Law Reform
331
Elizabeth S. Scott
PART SEVEN. AGREEMENTS
18 The Principles and Canada’s “Beyond Conjugality” Report: The Move towards
Abolition of State Marriage Laws
351
Jane Adolphe
19 The ALI Principles and Agreements: Seeking a Balance between Status
and Contract
372
Brian H. Bix
20 The Principles on Agreements: “Fairness” and International
Human Rights Law
392
Barbara Stark
PART EIGHT. JUDICIAL AND LEGISLATIVE PERSPECTIVES
21 A Formula for Fool’s Gold: The Illustrative Child Support Formula
in Chapter 3 of the ALI’s Principles
409
Maura D.Corrigan
[...]... for the very young and other dependent persons Even advanced welfare states still rely heavily on families for the care of the young, the frail elderly, the sick, and the severely disabled, but the capacity of families to perform these functions has been dramatically reduced everywhere No society, for instance, has yet found a substitute for the care, services, and support formerly furnished by the. .. terminating marriage); and, despite the rise of “children’s rights,” the creation of a more adult-centered system of family law When the entire complex of changes is viewed together, it is apparent that the story the law tells about family life has been substantially rewritten The legal narrative now places much more emphasis on the rights of individual family members than on familial responsibilities Marriage... so that fewer families will find themselves in distressed circumstances in the future? When do the advantages for individuals of unprecedented freedom begin to be outweighed or nullified by the social costs of the cumulative effects of individual choices on social and family life? By the time the American Law Institute completed its Principles of the Law of Family Dissolution in 2002, family law had... and Head of the Law School at the University of Sydney, Australia He is the Chair of the Family Law Council (the Australian Government’s advisory body) and also chaired a review of the Child Support Scheme in 2004–05 He has written many books and articles on family law, child protection and the law of equity and trusts He is a member of the Executive Council of the International Society of Family Law... University of California, Los Angeles Talk of the Nation, New Principles for Family Law (National Public Radio broadcast, Jan.) (“These people live like they’re married, even if they’re not formally married They share a life together as though they were married Therefore, when their long-term stable cohabitations come to an end, we should treat them as though they were married.”) 8 Elizabeth S Scott, Pluralism,... rich substratum for exploring the merits of these competing visions about what makes a family, the nature of parenthood, and the basis for the obligation to support one’s child and the duty, if any, to support a person with whom one has lived in an intimate relationship Because of the prestige of the ALI, judges will undoubtedly rely on the Principles as they have relied on the ALI’s Restatements Legislators... raised by these changing family forms The ALI, the most prestigious law reform organization in the United States, is a collection of judges, lawyers, and academics established in 1923 “to promote the clarification and simplification of the law and its better adaptation to social needs.”4 The ALI has been 1 Section of Family Law, American Bar Ass’n, 10 FAQs About Family Law, http://www.abanet.org/family/faq.html... might address the needs of child-raising families becomes harder to rally As the old saying goes, “Out of sight, out of mind.” It thus seems evident that among the most pressing issues for family law and policy in the future will be those arising from the impaired ability of families to socialize the next generation of citizens, and the diminished capacity of society’s support institutions (families, government,... application of the principles: the courts are there to make them.” The ALI’s proposals did not emerge in a vacuum They reflect similar developments in family law in the United Kingdom, Europe, Australia, and elsewhere Several scholars in this volume adopt a deliberately comparative structure that highlights the very different policy decisions that have been made by jurisdictions outside the United States The Principles... published in the Notre Dame Law Review; and Family Law (1994) Robin Fretwell Wilson is a Professor of Law at the University of Maryland School of Law and a member of the Executive Committee of the Family and Juvenile Law Section of the Association of American Law Schools Introduction Robin Fretwell Wilson The family has undergone almost revolutionary reconfigurations over the past generation In the space . heavily on
families for the care of the young, the frail elderly, the sick, and the severely disabled,
but the capacity of families to perform these functions. 521 86119 5 May 30, 2006 7:35
Reconceiving the Family
Critique on the American Law Institute’s
Principles of the Law of Family Dissolution
Edited by
Robin
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Xem thêm: Tài liệu ECONCEIVING THE FAMIL pdf, Tài liệu ECONCEIVING THE FAMIL pdf, I. The ALI's Faulty Critique of Fault, III. The Need to Recognize Community Standards of Minimum Acceptable Spousal Behavior Instead of "Fault" or "No-Fault", B. The Good of Having Obligations, Recognizing Them, and Fulfilling Them, IV. Shamelessness and the Shameless City, VII. Dissolution: The Family without Duty, Guilt, or Shame, B. "De Facto Parenthood" and "Parenthood by Estoppel" Under the PRINCIPLES, A. Constitutional Deference to State-Law Definitions of Parenthood, B. New Parents and the Dilution of Parenting Authority, I. Substantive Standards for Awarding Custody": Policy Diversity and the ALI's “Approximate the Time” Proposal, B. The "Friendly Parent" Doctrine, C. The PRINCIPLES' "Time" Standard, II. Parenting Plans under the PRINCIPLES, III. Protecting the Separate Interests of Children in Divorce Litigation, A. ALI 's Treatment of De Facto Parents, B. The Importance of Biological Ties for Paternal Investments, A. Risk of Sexual Victimization by Ex Live-In Partners, C. Risk of Sexual Abuse when a Child’s Mother is Absent, V. Can the ALI’s Test Be Refined to Minimize Harms while Preserving the Goods?, B. Obligation Categories for Purposes of Child Support, B. The Expansion of State Power, C. Emotional Over Material Needs, A. Treating Residential and Nonresidential Parents Differently, I. Placing the Property Division Proposals in Context, II. Gauging The Impact of the Property Division Proposals, A. Enhancement of Separate Property by Spousal Labor, C. Financial Misconduct as Grounds for Unequal Division of Marital Property, I. Individual Liability and Marital Wealth, II. How Creditors View Marriage and Divorce, III. Some Observations on the Effect of Changes in Divorce Law on Creditors' View of Marriage, I. The Current Disarray in Family Law and the ALI's Backward-Looking Approach, II. Sharing PRINCIPLES and the Allocation of Resources, III. Back to the Future: When Does a Backward-Looking Jurisprudence Need to Become Forward-Looking?, B. Is the Exclusion of Nonfinancial Matters Justified?, III. Is This the Only Choice? The Problem of Financial Misconduct, I. Analysis of the PRINCIPLES' Alimony Provisions, II. Vision of Marriage Conveyed by the PRINCIPLES: Joint Venture for a Limited Purpose?, III. Marriage Differently Conceived: More Legal Stability and Protection to Facilitate Effective Choices by Wives and Mothers, III. Cohabitation Differs from Marriage, IV. Current Law Governing Cohabitation, V. The Success of the Unequal Treatment Argument in Canada, II. Private Ordering under the PRINCIPLES: Domestic Partnership, Parenthood by Estoppel, and De Facto Parenthood, V. Body-Based Metaphors, Families, and Private Ordering, VI. Applying the Private Ordering Elements of the PRINCIPLES, B. The Claim of Equivalence: The Research Evidence, C. The Claim of Practicality: Problems Associated with Individualized Determination, C. The ALI Proposal Conveys False Information about Marriage and Cohabitation, III. The Domestic Partnership Proposal Is Not a Liberal Reform, I. Courts and Cohabitation: Marvin and Beyond, B. Evaluating the ALI Approach, III. Enforcement of Obligations in a Contract Default Rule Framework, IV. Informal Unions and Marriage: Should the Line Be Dissolved?, I. The Essence of Marriage, B. The State's Legal Models for Living, A. Overview and Current Doctrine, D. General Analysis and Discussion, C. General Analysis and Discussion, A. The Need for a More Robust Rationale, A. Why the Women's Convention?, IV. How the Incorporation of International Law Would Actually Work, III. The Sad Emotional Truth of Family Fragmentation, V. We Need a Better Way, I. Common Law Marriage in South Carolina, III. Response to the PRINCIPLES-Approach, B. England and Wales: A "Balanced" Rather Than “Balance Sheet” Approach or Just Disarray?, C. The Balance Sheet Approach and the Question of Legitimacy, II. Parenthood and the Allocation of Custody Allocation, C. Alternating Residence: The New Frontier, B. The Benefits of Closeness to Nonresident Parents, E. Governments and Shared Parenting, I. Valuation of the Spouses' Contributions, II. Spousal Support-Compensating Loss or Gain?, III. The Equal Division Rule and the Spouses' Adjustment of Behavior, III. Elites and Masses: Quis Custodiet Ipsos Custodes?, IV. The View from the Tower, The Wisdom of Crowds, V. To Bind and Loose