Category Archives: Family Law

Huntington and Scott, ‘Conceptualizing Legal Childhood in the Twenty-First Century’

ABSTRACT The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional […]

Alistair MacDonald, ‘The Remote Family Access Family Court – what have we learnt so far’

INTRODUCTION It is a truism that we cannot know what the future will hold. Recently, this has been demonstrated to me in stark terms. On 1 February 2020 I delivered a speech to the Four Jurisdictions conference, held in Malaga in the days when we could interact with each other face to face; in the […]

David Crump, ‘The Tort of Interference with Custody: A Tale of Two Jurisdictions’

ABSTRACT Interference with custody is a malignant tort. As a result, most jurisdictions have recognized liability for the underlying conduct through the common law or by statute. But the proper function of this legal theory requires balanced adjudication. When former spouses are cooperative, they usually act informally to adjust visitation, and a jurisdiction that applies […]

Adler and Alvarez, ‘Property Rights in Children’

ABSTRACT In 1978, Dr Elisabeth Landes and then-Professor, later-Judge Richard Posner, published The Economics of the Baby Shortage. The article openly discussed how economic analysis can address the allocation of babies available for adoption. The ideas expressed in the article were widely denounced as an inhumane commodification of children, something tolerable only in the twisted […]

Rachel Rebouché, ‘Contracting Pregnancy’

ABSTRACT Several states recently have passed laws that permit and regulate gestational surrogacy, changing course from the prohibitions that characterized an earlier era. These statutes require mental health counseling before pregnancy and legal representation for all parties to the contract. Scholars and practitioners alike herald this legislation as the way forward in protecting the interests […]

‘Reflections on Family Law’

Jia Tolentino, Trick Mirror: Reflections on Self-Delusion (2019). For those of us who spend any appreciable amount of time online – and lately, that is likely many of us – it has been difficult to miss Jia Tolentino’s recently published book, Trick Mirror: Reflections on Self-Delusion, which has enjoyed some measure of digital fame, appearing […]

Katharine Baker, ‘What is Nonmarriage?’

ABSTRACT As rates of cohabitation rise and marriage becomes a status reserved almost exclusively for socio-economic elites, the scholarly calls for family law to recognize more nonmarital families grow stronger by the day. This article unpacks contemporary proposals to recognize more nonmarital families and juxtaposes those proposals with family law’s contemporary marital regime. Contemporary family […]

Ayelet Blecher-Prigat, ‘Echoes of Nonmarriage’

ABSTRACT This Article aims to draw attention to the dynamic interrelationship between nonmarriage and marriage in which the principles, values, and rhetoric used in laws that relate to nonmarital intimate relationships infiltrate the traditional laws governing marriage. The Article argues that the laws governing nonmarriage affect the legal institution of marriage inasmuch as the laws […]

Samantha Godwin, ‘Children’s Capacities and Paternalism’

ABSTRACT Paternalism is widely viewed as presumptively justifiable for children but morally problematic for adults. The standard explanation for this distinction is that children lack capacities relevant to the justifiability of paternalism. I argue that this explanation is more difficult to defend than typically assumed. If paternalism is often justified when needed to keep children […]

Hanoch Dagan, ‘Spousal Contracts and Choice Theory’

ABSTRACT Contract is one of the key tools liberal law employs in the service of its core mission of enhancing people’s autonomy, and choice theory conceptualizes this task as contract’s telos. It thus prescribes three principles – proactive facilitation, regard for the future self, and relational justice – for guiding the legal constitution of contract […]