Polygamous Marriage, Monogamous Divorce

Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more than one spouse at any given time but who nonetheless marry more than one person in their lifetime. The Article concludes that the state has a compelling economic interest in limiting marriage to two people. If polygamy were to become the law of the land, states could no longer prohibit bigamy. In turn, separating couples would lose one of the strongest incentives they currently have to choose formal divorce proceedings over the seemingly simpler option of mutual desertion: the threat of criminal charges for bigamy. In essence, a sequential bigamist could then marry multiple times in his lifetime without ever divorcing and, at the same time, without risking a criminal charge of bigamy. Such actions—dubbed “sequential polygamy”—would compromise the state’s interest in protecting its citizens from financial harms. After all, divorce proceedings provide the state with an opportunity to intercede into the process, thereby obtaining some assurance that those who are leaving a marriage are not doing so at their financial peril. With the legalization of polygamy, however, bigamy becomes a thing of the past, eroding the state’s ability to encourage divorce as a means of safeguarding the health and safety of its citizens. Most concerning is the impact this change would have on those living in poverty—the people likely to be hardest hit by any societal shift away from formal divorce. Finally, any attempts by the state to distinguish between bigamy and polygamy (for example, by permitting plural marriage but only if all spouses consent), would fail to ameliorate the resulting harm to its citizens

Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience

This is the published version

If You Grant It, They Will Come: The History and Enduring Legal Legacy of Migratory Divorce

Fifty years ago, California became the first state to enact no-fault divorce, making it easier than ever before for individuals to dissolve unsuccessful marriages. Soon, every state would follow suit, and over the years, much has been written about this national shift in the law of divorce. What has thus far escaped scrutiny, however, is one of the prime casualties of that switch—the phenomenon of migratory divorce. This failure is somewhat ironic given that, although no-fault divorce has existed for just over fifty years, migratory divorce played a prominent role in American legal history for well over a century. Migratory divorce is the process through which people who lived in states where a divorce was difficult to obtain would temporarily relocate to another state—one with more liberal divorce laws—in order to satisfy that state’s domicile requirement to obtain a divorce there. Divorce in hand, those people typically returned home to continue life as unmarried persons. Many states, however, opposed recognizing such divorces, giving rise to multiple Supreme Court opinions dealing with when a state is constitutionally required to recognize such a decree. Contemporaneous with that debate, a large number of Americans fiercely opposed the practice of migratory divorce altogether, fearing the impact it would have on the sanctity of marriage. As a result, there were several proposals over the years for dealing with this “problem,” primarily involving constitutional amendments and uniform laws. In light of this history, it is the position of this Article that the era of migratory divorce offers an invaluable resource for those studying not only the development but also the continuing evolution of American family law. Accordingly, this Article chronicles that legal phenomenon, offering a detailed analysis of the various social, legal, and political influences that ultimately shaped this unique time in American history. The purpose in doing so is, first, to ensure that this fascinating period in American history is not forgotten, but more important, to distill the legal lessons produced by this era—lessons that are highly instructive to contemporary scholars, courts, and policymakers alike as they continue to wrestle with the emerging problems facing the law of domestic relations

Something Judicious This Way Comes...The Use of Foreshadowing as a Persuasive Device in Judicial Narrative

With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, I analyze the way in which judges craft their opinions so as to make them more palatable to a wide range of audience members: the litigants and attorneys involved in the case, higher appellate courts who might ultimately review the opinion, and, finally, the public in general. To do this, I focus specifically on the use of foreshadowing in legal opinions. Foreshadowing, as explained in my article, is not simply a literary device, but is an extremely persuasive technique given the way in which it appeals to how human beings think and process information. Indeed, foreshadowing implicates a number of psychological theories (priming theory, schema theory, and inoculation theory), each of which has a strong impact on persuasion. Furthermore, when we look at the general psychology behind human cognition as well as the role that subtlety (a hallmark of foreshadowing) plays in persuasion, it becomes clear why judges frequently employ foreshadowing when crafting their opinions. After discussing the above psychological theories, my article then talks specifically about judicial narrative, offering discrete examples of different kinds of foreshadowing that judges have employed in notable judicial opinions. From the way in which judges phrase rules, to how they describe precedent cases, to how they even prepare us for a departure from existing law, judicial opinions offer rich examples of the intersection between psychology, narrative and persuasion

(In)Formal Marriage Equality

In 2015, same-sex couples throughout the United States obtained formal marriage equality. But is the prospective ability to obtain marriage licenses sufficient to achieve Obergefell v. Hodges’s promise of equality? What about individuals whose same-sex relationship did not survive—either through death or dissolution—to see marriage equality become the law of the land? Or those couples who did ultimately wed but now have a marriage that appears to be artificially short when considering just how long the couple has actually been together in a marriage-like relationship? With marriage benefits conditioned not only on the fact of marriage but also the length of marriage, individuals in both categories continue to suffer harm as a result of the unconstitutional laws that prevented them from marrying at an earlier point in time. Although some states have attempted to remedy this problem by backdating same-sex marriages, the reality is that the availability of such relief varies by state and, what is more, no state has yet formulated a test to adequately protect the interests of those individuals. This Article is the first to propose a specific solution to these problems—a solution that requires states to formulate and adopt a new equitable remedy, referred to here as “equitable marriage.” Drawing on existing equitable doctrines that states have already developed to extend formal family law benefits to those in informal family-like relationships, equitable marriage would treat same-sex relationships that predated formal marriage equality as the equivalent of a legal marriage with all the attendant rights and obligations. In the case of same-sex couples who ultimately did wed, equitable marriage would require that the time the couple spent in a marriage-like relationship count as part of the formal marriage, so as to extend all marital benefits conditioned on length of marriage. To succeed, claimants would need to establish that the couple would have wed during that time period but for the unconstitutional laws depriving them of that fundamental right. Understanding the complexity of such an approach, this Article offers guidance on how courts should implement and apply equitable marriage so as to achieve full marriage equality while, at the same time, resisting impermissible gender stereotypes and heterosexist notions of how marriage “should” look

A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias

(Excerpt) Specifically, as this Article discusses, the students who attend top-tier law schools are overwhelmingly representative of the elite socioeconomic class—often times as a result of merely being born to parents who were also a member of that class.15 As such, hiring faculty members from primarily those ranks undermines a law school’s ability to achieve socioeconomic diversity on its faculty and instead helps perpetuate a class-based monopoly within the legal academy to the detriment of all involved. Given this danger, I propose that academic pedigree simply be one of many factors that a faculty takes into account when deciding who, like them, may enjoy a place in the legal academy “hot spring.

To Lynch a Child: Bullying and Gender Nonconformity in our Nation\u27s Schools

“Lynching is a terror that has many forms; there is the lynching of men’s spirits as well as their bodies.” -- Richard WrightIn January 2010, a 9-year old boy named Montana Lance hung himself in a bathroom at the Texas elementary school he attended. Although certainly shocking, such acts are unfortunately becoming less and less unusual. In fact, the suicide of Montana Lance is very reminiscent of what happened in April 2009 when two 11-year-old boys, one in Massachusetts and one in Georgia, likewise committed suicide just days apart. What would cause these children to end their lives? The answer in each case is the same: all three suffered extreme levels of victimization at the hands of school bullies - bullying that others have described as involving “relentless homophobic taunts.” And, as we can see from the fate of these three little boys, this form of harassment was obviously very traumatic.In this article, I look at the growing problem of school bullying in America today. Now, almost all children are teased and most will even face at least some form of bullying during their childhood. However, studies reveal that some children will unfortunately become chronic victims of school bullying. Chief among that group are those children whose gender expression is at odds with what society considers “appropriate.” As my article explores, the gender stereotypes that exist within our society are frequently to blame for the more extreme levels of bullying currently being carried out in our nation’s schools. And the impact this bullying has on its victims is staggering. Earlier I mentioned three children who took their own lives as a result of bullying. These are but three examples of those who have lost their lives to gender-based bullying. However, there are countless other victims who, although not paying with their lives, are nonetheless paying dearly in other ways. Specifically, the psychological literature on the emotional impacts that befall these chronic victims of bullying reveals a whole host of resulting problems - debilitating consequences that can last a lifetime.As a result, my article argues that bullying on the basis of gender non-conformity is, in essence, a form of lynching. First, both are driven by unwritten social codes - in one instance, white supremacy; in the other, gender stereotypes. Second, both are carried out by perpetrators who do not act in isolation but with the support and sometimes involvement of the larger community. As I explain, one of the reasons gender-based bullying is so frequent is the degree to which peers and school administrators ignore such behavior and, in some instances, even become active participants. Third, both result in extreme harm - lynching, in its most basic form, resulted in dead bodies; however, a lynching need not be defined so narrowly. In the case of segregation, for example, we had living children with “lynched” spirits. As one commentator describes, “these children [who endured racial segregation] were truly lynched spiritually, emotionally, and mentally.” As noted above, and as discussed quite extensively in my article, chronic bullying on the basis of gender stereotypes carries similar results. Finally, both lynching and gender-based bullying achieve maximum effectiveness by the way in which they generate fear in others. The clear message of both is the same: obey the “code” or become the next victim.Although other scholars have addressed the topic of bullying, none have taken the approach that it is 1) heavily based on gender stereotypes and 2) as such, is in essence a form of lynching given the extreme harms it can cause. As a result, many articles propose remedies that focus more on the need for greater legal intervention. I argue that, first, only by recognizing this form of bullying for what it is - a form of lynching - can we even attempt to craft a solution to the problem. Second, given the degree to which social norms relating to gender animate this form of bullying, legal solutions alone will be inadequate absent some means of changing society’s adherence to these rigid and unforgiving stereotypes. Accordingly, I conclude by discussing ways in which litigation, legislation and education can work together to help try and effectuate some form of social change

A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias

(Excerpt) Specifically, as this Article discusses, the students who attend top-tier law schools are overwhelmingly representative of the elite socioeconomic class—often times as a result of merely being born to parents who were also a member of that class.15 As such, hiring faculty members from primarily those ranks undermines a law school’s ability to achieve socioeconomic diversity on its faculty and instead helps perpetuate a class-based monopoly within the legal academy to the detriment of all involved. Given this danger, I propose that academic pedigree simply be one of many factors that a faculty takes into account when deciding who, like them, may enjoy a place in the legal academy “hot spring.

Parens Patriae and the Disinherited Child

Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up reforms based largely on the two models currently employed by other countries: (1) the forced heirship approach, in which all children are entitled to a set percentage of their parent’s estate; and (2) family maintenance statutes, which provide judges with the discretionary authority to override a testator’s wishes and instead award some portion of the estate to the testator’s surviving family members. This Article takes a different approach and looks at the issue of disinheritance through a new lens: the doctrine of parens patriae. Just as this doctrine limits the decision-making autonomy of living parents vis-à-vis their children, this Article argues that it should likewise limit the dead hand control of deceased parents. Focusing on minor children, adult children who remain dependent as a result of disability, and adult children who are survivors of parental abuse, it is the contention of this Article that testamentary freedom must sometimes yield to the state’s inherent parens patriae authority to protect children from harm. Specifically, this Article proposes that courts must refuse enforcement of testamentary schemes that disinherit children who fall into those categories if that disinheritance would constitute abuse or neglect. Such an approach is not only mandated by the doctrine of parens patriae but, in contrast to the approaches other countries have adopted, is much more deferential to testamentary freedom. The limitations imposed by this proposal represent a relatively modest curtailment of the rights testators currently possess and, at the same time, are consistent with existing exceptions to testamentary freedom, most notably those in place to protect spouses and creditors as well as those that prohibit the enforcement of testamentary provisions that violate public policy