A Case Against Collaboration

In family law, as in other legal disciplines, the use of alternative dispute resolution has dramatically increased. In a process called collaborative divorce, separating spouses hire attorneys who agree to work together—almost entirely outside of the court system—to reach a settlement ending the marriage. A team of experts, including mental health professionals, financial neutrals, and parenting coordinators, helps the parties resolve conflicts and settle property, support, and custody disputes. For divorcing couples, the collaborative process promises emotional healing and avoidance of contentious litigation. Advocates for collaborative divorce describe the transformational effects of the process in an evangelical tone. But collaborative divorce has costs. Collaboration can include considerations of marital fault that feminists helped eliminate from divorce laws. By focusing on conflict resolution, even for the purpose of building post-divorce relationships, collaborative negotiations introduce judgments of “good” and “bad” marital conduct, potentially reinforcing stereotyped gender roles, such as the blameless wife and the guilty husband. These heteronormative paradigms are out of date: gender roles have evolved, the population of married people has changed, and marriage rights have extended to couples of the same sex. Collaborative processes also have distributive consequences. Collaboration privileges wealthy parties who may understate their bargaining power. At the same time, collaboration may not reach vulnerable spouses who could benefit from therapeutic interventions. Collaborative divorce can be blind to situational power and structural inequality. The purpose of these critiques is not to undermine therapeutic approaches or to argue that law should ignore spousal misconduct. Rather, this Article suggests that advocates for collaborative divorce—including some feminist scholars who have theorized the shortcomings of no-fault divorce laws—might understand better how parties negotiate, and what they may sacrifice, within a collaborative framework

The Limits of Reproductive Rights in Improving Women\u27s Health

South Africa\u27s Choice on Termination of Pregnancy Act (CTOPA) is heralded as one of the most progressive abortion laws in the world. The law permits unfettered access to government-funded abortion services for all women through the twelfth week of gestation, stating in its preamble that every woman [has] the right to choose whether to have an early, safe and legal termination of pregnancy according to her individual beliefs. Despite increased availability of legal abortions\u27 (and the inclusion of rights to reproductive health care and decision-making in South Africa\u27s Constitution), the number of illegal terminations in South Africa does not appear to have decreased significantly since liberalization. Although there have been lower rates of maternal mortality associated with illegal abortion, indications of maternal morbidity -- illness or negative health effects -- remain high. The purpose of this Article is to explore this gap between law and practice, and to highlight some of the limitations of decriminalization and liberalization agendas for those advocating on behalf of reproductive rights. By describing the South African experience of abortion law reform, this Article maps the origins of transnational legislative strategies for reproductive rights. It questions how shifting focus might help address abortion care delivery in countries with diverse histories and needs. Strategies focused on liberalizing access to abortion may be well suited to a project in which the primary and most important aim is to create a rights-based framework. Yet they may not respond to implementation problems, help ensure delivery of health services, or take account of the unique context of service delivery

A Tale of Two Families -- \u3ci\u3eRed Families v. Blue Families: Legal Polarization and the Creation of Culture\u3c/i\u3e by Naomi Cahn & June Carbone

In their thought-provoking book, Red Families v. Blue Families: Legal Polarization and the Creation of Culture, Naomi Cahn and June Carbone examine conflicting views on family formation in the culture war. Mirroring the electoral maps of 2004 and 2008, the authors contend that regional differences between Republican and Democrat voters correspond to deeply held beliefs about family values. The blue family paradigm is essentially liberal: It stresses individual equality, tolerance of diverse lifestyles, and a role for government in helping people achieve educational and economic success. Red families are conservative. They value tradition, as expressed in religious beliefs or longstanding cultural mores, and they expect the state to respect these values. But, as Cahn and Carbone show, differences of ideology do not account for the divergent choices that red and blue families make. Neither red nor blue families practice what they preach. Blue families may bristle at restrictions on sexuality, insistence on marriage, or the stigmatization of single parents, but they raise children in committed, long-term relationships after delaying marriage. Red families disavow premarital sex and proclaim the merits of marriage, but have higher rates of teenage pregnancy and divorce, as well as lower marriage rates. In three parts, Cahn and Carbone capture the entrenched divisions between red and blue families and explain how opposing opinions and practices around family formation inform debates over abortion, same-sex marriage, and abstinence-only education. Supported by rich historical, sociological, and cognitive research, they analyze how the views of communities where many marry young, have children as teenagers or young adults, and divorce early, differ from those in which people postpone childbirth and marriage. Cahn and Carbone propose changing the subjects of policy from sex to commitment, from abortion to contraception, and from family to work can help forge common ground between red and blue families. Red Families v. Blue Families is intensely concerned with the well being of all families, which seems to be the best justification for finding common ground

The Limits of Reproductive Rights in Improving Women\u27s Health

South Africa\u27s Choice on Termination of Pregnancy Act (CTOPA) is heralded as one of the most progressive abortion laws in the world. The law permits unfettered access to government-funded abortion services for all women through the twelfth week of gestation, stating in its preamble that every woman [has] the right to choose whether to have an early, safe and legal termination of pregnancy according to her individual beliefs. Despite increased availability of legal abortions\u27 (and the inclusion of rights to reproductive health care and decision-making in South Africa\u27s Constitution), the number of illegal terminations in South Africa does not appear to have decreased significantly since liberalization. Although there have been lower rates of maternal mortality associated with illegal abortion, indications of maternal morbidity -- illness or negative health effects -- remain high. The purpose of this Article is to explore this gap between law and practice, and to highlight some of the limitations of decriminalization and liberalization agendas for those advocating on behalf of reproductive rights. By describing the South African experience of abortion law reform, this Article maps the origins of transnational legislative strategies for reproductive rights. It questions how shifting focus might help address abortion care delivery in countries with diverse histories and needs. Strategies focused on liberalizing access to abortion may be well suited to a project in which the primary and most important aim is to create a rights-based framework. Yet they may not respond to implementation problems, help ensure delivery of health services, or take account of the unique context of service delivery

Health and Reproductive Rights in the Protocol to the African Charter: Competing Influences and Unsettling Questions

In 2005, the Protocol to the African Charter on Human and Peoples\u27 Rights on the Rights of Women in Africa (the Protocol) came into force. Since that time, the Protocol has received scant attention in legal scholarship. Where the Protocol has been mentioned, by and large it has received praise as a major step forward for women\u27s rights on the continent. Much of that praise is merited. The Protocol includes broad rights to non-discrimination, equality, and dignity, and it addresses a variety of areas such as labor and employment, marriage and the family, the legal system, the political process and public life, education, conflict, the market, the environment, and health. This Article examines the drafting of an African Convention on the Elimination of Discrimination against Women (CEDAW) and concludes that it was a very fragmented process with consequences for the efficacy of the Protocol as a whole. Three problems are analyzed: the failure of the Protocol to highlight how various articles relate to reproductive health rights (such as HIV prevention and prohibition of early marriage), the narrow construction of a broader right to health, and the dual rejection and embrace of women\u27s roles as mothers. This last tension in particular-the intersection of the elimination of stereotypes found in formal and substantive equality rights and the promotion of a positive cultural context for women-best illustrates contradictions in the theoretical influences underpinning the Protocol. Although the Protocol may have missed opportunities to approach women\u27s reproductive health more holistically and critically, the interpretation of the Protocol moving forward can be supplemented with defining principles that were underdeveloped in its drafting

Parental Involvement Laws and New Governance

The stated objectives of parental involvement laws are to protect the health and well-being of minors and to encourage dialogue between parents and adolescents about pregnancy options. Yet decades of studies urge that parental involvement laws do not meet these purposes. Adding to this research, a new ethnography of professionals who implement parental involvement statutes seeks to demonstrate how notice and consent laws and the judicial bypass work in practice. Over the last two years, a non-profit organization, the National Partnership for Women & Families, interviewed 155 lawyers, advocates, judges, health care providers, and court clerks who assist minors in every state with parental notice or consent laws and judicial bypass petitions. The National Partnership\u27s final report makes clear that a significant population of minors cannot consult their parents for logistical or personal reasons, and, for that cohort, the judicial bypass is not a meaningful alternative. In only a few places can the judicial bypass system be described as a functional process in which most minors, from any part of a state, can seek a bypass without significant delay, cost, or embarrassment. This Article explains why typical proposals for reform --to revise statutory language, to change public perceptions of the good parent and bad teen, or to challenge aspects of consent or notice laws in court -- have limited potential. I argue that those interested in easing the burden that parental involvement laws impose on young women might intervene at the level of informal decision-making. Insights from new governance scholarship show how influencing local relationships among gatekeepers of services can help overcome obstacles to reform. Generally, new governance is a method of law reform that responds to critiques of rights-based, state-centered, top-down litigative and regulatory strategies by turning toward experimental, flexible, collaborative public-private partnerships and by locating lawyers as problem solvers rather than as traditional advocates. The problem-solving method of new governance provides an approach that can address the complex web of state oversight, parental control, social stigma, and the discretion of individuallegal actors. I temper my suggestion that new governance could play a role in reform with an assessment of its risks and limitations. My purpose is not to suggest that new governance is a seamless fit for parental involvement laws or provides a clear, unproblematic path for change. My intent, rather, is to advance the current conversation among those interested in increasing minors\u27 access to reproductive health care services and improving the operation of parental involvement laws

Parental Involvement Laws and New Governance

The stated objectives of parental involvement laws are to protect the health and well-being of minors and to encourage dialogue between parents and adolescents about pregnancy options. Yet decades of studies urge that parental involvement laws do not meet these purposes. Adding to this research, a new ethnography of professionals who implement parental involvement statutes seeks to demonstrate how notice and consent laws and the judicial bypass work in practice. Over the last two years, a non-profit organization, the National Partnership for Women & Families, interviewed 155 lawyers, advocates, judges, health care providers, and court clerks who assist minors in every state with parental notice or consent laws and judicial bypass petitions. The National Partnership\u27s final report makes clear that a significant population of minors cannot consult their parents for logistical or personal reasons, and, for that cohort, the judicial bypass is not a meaningful alternative. In only a few places can the judicial bypass system be described as a functional process in which most minors, from any part of a state, can seek a bypass without significant delay, cost, or embarrassment. This Article explains why typical proposals for reform --to revise statutory language, to change public perceptions of the good parent and bad teen, or to challenge aspects of consent or notice laws in court -- have limited potential. I argue that those interested in easing the burden that parental involvement laws impose on young women might intervene at the level of informal decision-making. Insights from new governance scholarship show how influencing local relationships among gatekeepers of services can help overcome obstacles to reform. Generally, new governance is a method of law reform that responds to critiques of rights-based, state-centered, top-down litigative and regulatory strategies by turning toward experimental, flexible, collaborative public-private partnerships and by locating lawyers as problem solvers rather than as traditional advocates. The problem-solving method of new governance provides an approach that can address the complex web of state oversight, parental control, social stigma, and the discretion of individuallegal actors. I temper my suggestion that new governance could play a role in reform with an assessment of its risks and limitations. My purpose is not to suggest that new governance is a seamless fit for parental involvement laws or provides a clear, unproblematic path for change. My intent, rather, is to advance the current conversation among those interested in increasing minors\u27 access to reproductive health care services and improving the operation of parental involvement laws