Domicile Dismantled

Part I of this Article discusses the legal and factual background of Mas v. Perry. This narrative reveals how the case reflects both the changes in American society that were beginning to occur at that time and the struggle of the concept of domicile to keep pace with those changes. Part II traces the development of the fundamental shift in gender roles that began several years before Mas was decided. This section argues that the growing number of women attending college, embarking upon careers, and forming two-career marriages increased the difficulty of measuring domicile, while undermining the efficacy of a gendered presumption such as the one em-bedded in the derivative domicile rule. As Part III will demonstrate, these changes in gender norms occurred in tandem with broader changes in the lives of young Americans. Even as the legal age of majority decreased in the early seventies, the actual age at which young people began to reach the markers of adulthood began to increase. Both women and men began to seek higher education, to delay marriage, and to wait longer to establish homes, families, and careers—and, consequently, to establish any permanent intentions regarding domicile. This newfound period of “emerging adulthood” served to further under-mine the usefulness of domicile as a legal tool. Part IV shows how the new legal age of majority, in combination with shrinking state budgets and the articulation of the right to interstate travel, led to a new focus on the legality of tuition residency requirements. It demonstrates that although the Supreme Court struck down durational residency requirements in other areas of the law, it maintained a dismissive attitude toward student capacity to form domiciliary intent. This attitude, however, did little to stem the wave of litigation that began in the 1960s and has continued into the present day. The cases decided during this period of litigation reveal the interaction of gender changes, emerging adulthood, and domicile. The Article concludes that the confusion over domicile that has emerged in the last fifty years makes it an increasingly unwieldy and unhelpful legal concept. As university regulations and the courts’ convoluted and conflicting reasoning demonstrate, the changes that developed during the era of Mas v. Perry and continued into the present day have made it difficult, if not impossible, to measure domiciliary intent in any consistent, equitable, or meaningful way. Using residence, or residence with additional requirements, is a more sensible and accurate way to handle jurisdictional questions

The Progress of Passion

Like an abandoned fortress, the dichotomy between reason and the passions casts a long shadow over the domain of legal thought. Beset by forces from legal realism to feminist epistemology, this dichotomy no longer holds sovereign sway. Yet its structure helps to articulate the boundaries of the legal field; efforts to move in and around it infuse present thinking with the echoes of a conceptually distinct past. Early critics of the dichotomy may unwittingly have prolonged its influence through the frontal character of their attacks. By challenging a strong distinction between emotion and reason, critics kept it, paradoxically, before legal audiences. Moreover, within the context of this approach, refusing the challenge posed by critics remained an intelligible response. Glimpsing, perhaps, the limits of this approach, an emerging generation of critics has embraced a new strategy. By assuming the interpenetration of reason and emotion in law, and turning a keen, evaluative eye to their complex relations, these scholars have introduced new lines of inquiry. They have also often disarmed their opponents: when one is assessing the competing claims of disgust and indignation to direct the criminal law, for example, it becomes more difficult for audiences to assert that emotions have no role in these legal processes. Susan Bandes\u27s collection, The Passions of Law, is a triumphant example of this new genre of critique. Emotion, Bandes declares in opening the book, pervades the law (p. 1) - her collection takes its shape from this transformative assumption. The question raised by the thirteen provocative essays that comprise this volume is almost never, Can emotion co-exist with the demands of reason in law? It is, as we learn in Bandes\u27s illuminating introduction, which emotions deserve the most weight in legal decision making, and which emotions belong in which legal contexts? (p. 7). It is how to assess the varying functions that law can perform in relation to the emotions - whether expressing, identifying, channeling, elevating, or satisfying individual or collective passions. It is how both law and the emotions that inflect it are shaped by elements of the broader culture in which both subsist. The great contribution of this volume is to shift the debate away from familiar dichotomies and toward the vast terrain that can be reconstructed by exploring the pervasive influences of the emotions in law. The gaps and inchoate elements in the collection remind us of just how large a task this may prove to be