The Ideal Collaborative Partner: A Tribute to Jana Singer

Collaboration has been defined as a “pervasive, long-term relationship in which participants recognize common goals and objectives, share more tasks, and participate in extensive planning and implementation.” I feel most fortunate to have had a collaborative partnership with Jana Singer for almost three decades. I am fortunate because such relationships are uncommon among legal scholars, given the “individualistic culture” of law schools and law professors. Even more unusual, I found in Jana a scholarly partner with all the qualities of the ideal collaborator: strong intellect, enthusiasm, curiosity, generosity, and humility. Since the early days of our academic careers, Jana and I have shared ideas about family law that have informed our teaching, scholarship, and service. This collaboration has led to co-authoring law review articles, blog posts and, most importantly, two books. In this Essay, I will focus on our scholarly collaboration and explore the connections between that scholarship and Jana’s significant public service that has improved family law practice on both a local and national level

Evidence Issues in Domestic Violence Civil Cases

This article is intended to assist practitioners in anticipating and responding to some of the evidentiary challenges in civil cases in which relief is sought for the victims of domestic violence. First, expert testimony is often necessary to dispel common myths about battered women and to educate judges and juries about the dynamics of domestic violence. Recent case law, however, has limited the admissibility of non-scientific expert testimony and may make it difficult for practitioners to use experts in their cases. In addition, particular evidentiary issues arise when victims are pursuing both criminal and civil remedies against the batterer. This article will explore the ways in which evidence issues may benefit and inhibit civil actions arising from the domestic violence. Finally, we will discuss the difficulties in using prior bad acts evidence. Because batterers tend to engage in repeated acts of abuse, evidence of prior acts may be particularly relevant in proving the extent of harm and predicting the likelihood of future abuse. Traditional principles of evidence law, however, often prohibit the admission of other crimes, wrongs and acts

Rules, Responsibility and Commitment to Children: The New Language of Morality in Family Law

Part One of this Article explores the meaning of morality by briefly reviewing a variety of attempts to explore the meaning of moral conduct. This Section draws on a variety of contemporary moral philosophers who have built on the classical tradition to develop a broader definition of moral behavior. This discussion provides a context for the current debate about the meaning of morality in family law and moral discourse in the no-fault era. Part One also reviews the historical debate about how law should strike a balance between promoting communitarian values and respecting autonomy and individual rights. The Article argues that the conflict underlying this debate may be overstated. All laws have moral implications, and decisions about law, made by citizens, legislators and policymakers, necessarily involve choices that privilege some values over others. Regulating family members is a particularly value-laden task. A tension will always exist between protecting individual freedom and privacy of family members and state intervention to further the common good. However, this tension does not require a retreat from the concept of rights within the family; rather, rights can be conceived in a way that furthers the moral vision of family law by using rights as a tool to ensure the protection of vulnerable members of the family. Part One concludes by noting that the hierarchy of values embodied in the moral vision of family law has changed over time. Sexual morality has become less important over time while protecting children has become central to the moral framework of family law. Part Two of the Article examines the traditional, fault-based moral discourse in the law governing grounds for divorce, alimony and child custody that prevailed in this country until the 1970\u27s. It concludes that this approach has several significant drawbacks. First, the fault-era\u27s emphasis on sexual practices and traditional gendered family roles reinforced patriarchy and tended to hurt custodial parents-primarily women-and children. Additionally, the fault-era\u27s reliance on broad discretionary standards resulted in inadequate financial awards and dual standards for men and women. Further, because moral discourse in family law has been primarily focused on issues of sexual conduct in marriage, the fault-era moral vision excluded families created outside of marriage. Litigating issues of fault also exacted significant financial and emotional costs on families. Finally, the emphasis on regulating sexual conduct in the fault-era did little to promote the evolving moral goal of family law-protecting children. Part Three of the Article explores the ways in which some laws that developed in the no-fault era express morality in family law. Examining current laws governing divorce, marital property, child support and custody, the Article identifies ways in which both the language surrounding the debates about such laws and the laws themselves express values of equality, commitment and responsibility for family members, particularly dependent members. The Article notes that for the first time, the language of morality has expanded into two areas that were largely unregulated in the “fault” era-access to marriage and family violence. The Article concludes that these developments over the last thirty years represent a healthy trend toward an overall family policy that strengthens families and protects each family\u27s weakest members. Nevertheless, more needs to be done to achieve a family policy that protects children. Finally, the Article identifies additional measures, both in traditional domestic law and in the broader policy arena, that must be accomplished to truly strengthen families, and most importantly, to protect children

Engaging With The State: The Growing Reliance on Lawyers and Judges To Protect Battered Women

The passage of the federal Violence Against Women Act of 2000 (“VAWA II”) marked an important milestone in the evolution of the domestic violence movement. VAWA II created, among other things, a complex system for state and federal funding in all fifty states to provide civil legal assistance to battered women. Its passage completed a process that began in the early 1980s when domestic violence advocates shifted their focus from grass roots efforts to help battered women and their children leave abusive partners to building alliances with government and advocating for legal remedies to assist battered women. This paper looks at the impact of this dramatic shift on both battered women and domestic violence programs. It draws on empirical data examining women\u27s experiences using these new legal remedies to raise some preliminary questions about the broader issue of how well the strategy of “engaging with the state” serves the interests of battered women

Lawyering for Social Change: The Power of the Narrative in Domestic Violence Law Reform

The role of the narrative or story in legal discourse has been explored and developed in legal scholarship over the last several years. The goals of the various calls for more storytelling in the legal context vary. They generally relate, however, to a desire to move away from exclusive reliance on abstract legal argumentation to persuade. The goals of ‘storytellers‘ are also linked to furthering an understanding of the dynamics of oppression based on race or gender, or both. The judicial and legislative processes have always included a narrative component. Clinical legal scholarship has also explored the critical role of narrative in client representation, particularly in interviewing and counseling. Recently, however, scholars seeking methods to make the law more responsive to those historically unrepresented in lawmaking have argued for a more explicit use of the narrative to highlight the human concerns in a given legal issue. Others have built upon the work of these scholars to explore the specific ways in which legal storytelling can accomplish law reform goals. Most recently, a related body of scholarship has begun to develop which seeks to critique the value of narratives in both clarifying legal issues and persuading legal decision-makers to reform the law. Can stories persuade legal decision-makers to act in a particular way by ‘creat(ing) a bridge across gaps in experience and thereby elicit empathic understanding(?)‘ This Article seeks to respond to that question. It begins with a brief examination of the impact of law reform campaigns of the last twenty-five years aimed at eliminating race and gender discrimination. There is general consensus that many of the law reform efforts on behalf of women and people of color have failed to produce the full measure of positive change expected from the new laws. This Article suggests that the gap between goals and results may be explained in part by the deficiencies in the legal discourse surrounding the process of achieving legal change. This Article then examines the legal story\u27s potential as a key element in social change strategy by exploring the specific role it has played in domestic violence law reform. Domestic violence is a particularly useful lens through which we may examine much broader questions about whether and how the law can affect social change. Issues surrounding domestic violence are critically linked to the oppression of women. Freedom and equality for women can never be achieved without freedom from violence. Domestic violence is also an issue where the legal system\u27s failure to respond effectively seems directly linked to the inability of the predominately male decision- makers to understand the victim\u27s need for protection. It is, therefore, an issue where legal storytelling can help create the kind of empathic understanding needed to produce meaningful reform. A case study analyzes a series of successful domestic violence law reform campaigns in one jurisdiction over the last decade. This ‘history of storytelling‘ gives an empirical backdrop to the theories advanced in recent scholarship about the power of the narrative in eliciting empathic understanding on the part of legal decision-makers. It provides a vivid example of a successful practical application of the theoretical work of feminist and critical race scholars. Advocates\u27 decision to place greater and greater reliance on narratives from victims to persuade decision-makers played a significant role in achieving much-needed law reform. The lessons of this law reform campaign have value and application as strategies which can work in other law reform efforts. This analysis of these law reform campaigns also clarifies the ways in which narratives persuade and function in arguments for feminist or other legal change

Eroding the Myth of Discretionary Justice in Family Law: The Child Support Experiment

Reliance on judicial discretion to resolve disputes is one of the most fundamental characteristics of the American legal system. Nowhere have judges exercised more unfettered discretion than in family law. Judicial discretion in this area, however, is not without its critics. In this Article Professor Jane Murphy recommends limiting the use of judicial discretion in family law matters. Professor Murphy argues that the lack of predictability which flows from discretionary decisions undermines our confidence in the equity of decisions and encourages protracted litigation. Professor Murphy reviews the developing consensus that fixed rules are necessary to guide judges\u27 discretion in divorce dispute resolution. Examining the application of fixed rules to one particular area of family law—child support obligations—Professor Murphy demonstrates that the use of fixed rules has successfully provided judges and parties with a means of developing more equitable, predictable child support decisions. Professor Murphy concludes that fixed rules similarly will prove useful in other areas of family law that presently are governed by judicial discretion

Revitalizing the Adversary System in Family Law

The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have fundamentally altered the way in which disputing families interact with the legal system. Both the methods and goals of legal intervention for families in conflict have changed, altering the roles of judges and lawyers and moving much of dispute resolution out of the courtroom. These developments have profound implications for the family justice system. They also reflect a broader jurisprudential shift away from the traditional values of the adversary system in both the civil and, to a lesser extent, the criminal justice system. The impact of this shift in this context has not been fully explored, particularly the direct and harmful impact of such changes on low income litigants. Part One of this Article describes the changes that have contributed to this paradigm shift. Part Two explores the fundamental ways in which the shift alters the traditional adversary system and the risks presented by these shifts. Finally, the Article offers proposals to assist in weighing the relative benefits of the therapeutic and adversarial approaches. Countering the trend in recent reform efforts, the Article argues for a reinvestment in the adversary system to design a justice system that serves all families