Marriage and Divorce Readings

February 10:

• Deborah Rhode. "Competing Perspectives on Family Policy." Justice and Gender: Sex Discrimination and the Law. Harvard University Press, 1989. 132-54
• Cases: Jones v. Hallahan (1973) and M.T. v. J.T. (1976)

February 12:

• June Carbone and Margaret Brinig. "Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform." Cases and Materials in Family Law. Ed. Judith Areen. 3rd ed. Foundation Press, 1992. 102-116
• A Divorce Lawyer's Opinion: Raoul Felder. "Divorce 2-7" (1971). Cases and Materials in Family Law. 360-363

Written Assignment (due February 12):

Half the class will answer question 1; and the other half, question 2. When referring to the readings, cite properly, including page numbers.

1. In the case Jones v. Callahan, the Appellate Court stated that the Kentucky statutes did not define marriage, so the court adopted a definition it said was based on "common usage." How do you think marriage should be defined? Explain what conceptions of marriage are presented in the two articles we read for this unit. Does society--the law--have a stake in defining and regulating marriage? Why or why not? Explain how assumptions about the nature and purpose of marriage affected the decisions in the two cases we read (Jones v. Callahan and M.T. v. J.T.). What are some contemporary issues that raise major questions about how the courts define marriage (see especially Rhode's article)?
2. Divorce--the dissolution of a marriage--is obviously closely tied to assumptions about the nature and function of marriage. Using the article by Carbone and Brinig, explain the difference between fault-based divorce and no-fault divorce. Which is based on a contract model of marriage? Which relies on a restitution-based system of awards? After reading all the proposals about divorce presented in the Carbone and Brinig article, describe what you see as the major issues faced by the legal system in trying to establish a fair and equitable way to dissolve a marriage, to divide property, and to protect the interests of children as well as spouses. You may wish to consult the rather acrimonious exchange between columnist Katha Pollitt and David Blankenhorn of the Institute for American Values on this subject, published in the online journal Slate.