Foreword: Mindfulness, Writing, and the Inner Lawyer

Foreword for the Richmond Journal of Law and the Public Interest Vol XIX, Issue I

The Price of Pleasure

This Article argues that unless sexual partners explicitly agree otherwise, pregnancy should create a unique type of legal relationship. This relational default would come with certain obligations: in limited circumstances, a woman would be expected to communicate the fact of a pregnancy to the man with whom she conceived, and a man would be required to help support her during pregnancy and recovery. Child support obligations should kick in only once a child is born; until and unless this happens, a man\u27s economic responsibility should be conceptualized as a responsibility towards the woman herself. The goal of this Article is to start a conversation about an issue that is critically relevant to our lives yet virtually absent from our laws. Commentary on current laws addressing the pregnancy-related obligations of unwed fathers is sparse and the scope of these provisions is uncertain. And while theorists have written extensively on rape, reproductive freedom, family leave policies, public funding for abortion, child support, and pregnancy discrimination in the employment context, virtually no one has focused on the legal relationship between unmarried sexual partners wh

Responsibility Begins at Conception

Under current law, most states frame men’s pregnancy-related obligations as an element of child support or as part of a parentage order, which generally kicks in only after the birth of a child and is limited to medical expenses. Until and unless the pregnancy produces a child, any costs associated with it are regarded as the woman’s responsibility. The debate around the new technology has, unfortunately, so far adopted this frame, labeling the test a paternity test and the potential obligation as child support. Rather than focusing on the relationship between the man and a hypothetical child, the new technology invites us to change the way we think about the relationship between unmarried lovers who conceive. Both partners had a role in the conception; it’s only fair that they should both take responsibility for its economic consequences. Former spouses are often required to pay alimony; former cohabiting partners may have to pay palimony; why not ask men who conceive with a woman to whom they are not married to pay “preglimony”? Alternatively, we might simply encourage preglimony through the tax code, by allowing pregnancy-support payments to be deductible (which is how alimony is treated)

The Three-Act Argument: How to Write a Law Article That Reads Like a Good Story

Why do so many law articles—my own included—leave readers cold? One reason may be that they lack fundamental elements that make up a good story. They lack tension. They lack narrative arc. Over my years teaching seminars and exchanging drafts with colleagues, I’ve developed a recipe that helps me organize ideas into a form that better engages the reader. I’ve also found it to be conducive to a richer, more generative writing process. The recipe is inspired by guides on dramatic plot. It has three parts: exposition, confrontation, and resolution. The exposition introduces the conflict. In many instances, this conflict is personified through a hero and a villain. We learn about the stakes, and we appreciate the formidable obstacles that our hero must overcome to reach his goal. Of course, what appear as obstacles to our hero are advantages to our villain, so the exposition can also be thought of as the villain’s day in the sun. The second part of the dramatic plot—the confrontation—is the showdown, the battle of the titans. In increasingly dramatic skirmishes, suffering setbacks and recovering from them by the skin of his neck, our hero claws his way to the climax, the mother of all battles, from which he emerges victorious. Finally, in the resolution, loose ends are tied, subplots are completed (lovers embrace, helpers are rewarded, troublemakers get their comeuppance), and we meet our new hero—a man who represents the integration of all we have learned, a radiant manifestation of conflict transformed

Labor, Luck, and Love: Reconsidering the Sanctity of Separate Property

This Article proposes a new alternative to the labor-centered marital property rule. Instead of focusing on how property was acquired, marital property law should look to spouses\u27 overall financial resources and require them to share these resources to the extent they shape their identities during the marriage. Financial capability affects some of the most fundamental aspects of our lives-our health, our education, our work, the neighborhood in which we live. Marriages in which these aspects of spouses\u27 identities are kept separate strike us as jarring. Imagine a husband and wife who sleep in the same bed, under the same roof, but who receive dramatically different levels of medical care. I do not propose that all preexisting, gifted, and inherited property belong to the marriage. Rather, the approach introduced in this Article attributes a percentage of separate property to the marriage based on the length of the marriage and on the property owner\u27s life expectancy. The core concept is to spread separate property over the life of the owner spouse and to allocate to the marriage a pro rata portion of this property

Scholarship Against Desire

This article uses my own experience navigating the law review placement process to reflect on the dynamics that shape intellectual life at American law schools. My recent work focuses on the legal relationship between unmarried lovers who conceive. At its heart, it is about the law’s role in shaping the precursor to pregnancy—heterosexual sex. When I began researching this topic what I was most curious about was how law and culture might conspire to foster connections that are more loving and less violent, more authentic and less alienated. Pursuing this topic—which would entail exploring big existential questions to which I still don’t have clear answers—seemed risky before tenure. Part I recounts the turn I took instead: a proposal for incentivizing and rewarding “preglimony” through tax reform. Currently, ex-spouses get a deduction when they pay alimony. In my last article before tenure, I argued that the same treatment should extend to men who support their pregnant lovers. Part II turns back the clock and revisits the lead I would have followed had I not been focused on producing a law review article within the conventional mold. This “road not traveled” explores a category of sex at the margins of mainstream definitions of what counts as “law”: sex that is consensual but not mutually desired, “sex against desire.” Why describe the thread I abandoned here? Why include so much detail about a category of sex at the margins of what generally counts as “law” in a paper about authenticity in legal scholarship? Because the personal is political. Because like intimate partners who agree to sex they don’t truly desire, professors who adhere to conventions that don’t serve their deepest relationship with truth engage in a compromise that ultimately hurts not only them. It hurts students by breeding cynicism and depression. It hurts the practice of law by producing foot soldiers instead of visionary stewards. Ultimately, our compromise hurts all of society. Part III concludes with my vision of what a more authentic ethos might bring to faculty and students, to the profession, and to the world we help shape

My Audacious Hope

US elections 2008: Why I voted for Barack Obama, and what a victory for him could mean for America and the world

Let Palestinians Write Their Own Destiny

Palestinians are poised to bring their quest for statehood to the United Nations this week. If they follow through, the Obama administration intends to veto it. This would be a mistake

In Praise of Open Windows

Motro calls for an open-window revolution, in which Americans reduce their constant use of carbon polluting air conditioning, open the windows, and let the sun shine in