Divorce Equality

The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic partnership—in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes. Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse’s contributions to the other spouse’s career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex “hybrid” cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of “pre-marital” property in order to count assets and income acquired outside of the marriage itself. Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage

Keeping Promises and Meeting Needs: Public Charities at a Crossroads

When a charitable organization cannot fulfill the terms of a charitable gift agreement, it must decide whether to keep a promise or meet a need. That is to say, a charitable organization can either preserve original donor intent, adhering to conditions placed on a gift, or it can attempt to modify the terms of the gift in order to budget and spend the funds more effectively. If an institution chooses to keep a promise, it might be stuck with a fund it cannot use because of conditions placed on the money at the time of the gift. In order to meet needs, however, the institution must go to court. Cy pres, the best tool available to such an organization, is a saving doctrine that allows courts to modify conditions placed on a charitable gift when the conditions have become either impossible or impracticable. What it means, however, for a condition to be impracticable is unclear

Inheriting Privilege

All families may be created equal, so to speak. But differences between families in terms of economic wealth, resource networks, and access to cultural capital are both severe and stark. A large part of what shapes this scenery of economic possibility is the legal framework of wealth transfer. Wealth travels through generations and sticks, crystallizing in predictable places and shapes, thereby embedding complex forms of inequality within and between families. The family trust, in particular, is a mode of transfer that facilitates wealth preservation as well as wealth inequality. Family trusts are tailored to convey and defend complex patrimonies in ways that no other form of wealth transfer can do. Wills, the other most common form of wealth transfer, do not have the same functionality and can only effectuate a one-time transfer, making it difficult to exert long-term control over beneficiaries.This Article’s primary goal is to excavate the myriad ways in which the family trust is a driver of inequality by explaining the family trust’s plasticity and ability to bend to the needs of high-wealth families. The Article accomplishes this by demonstrating how the family trust facilitates not only wealth inequality but also social and cultural inequality. These explorations into complex inequality and its furtherance by the family trust are useful because they help us better appreciate the significant role that family trusts play in the evolving story of class, gender, and race privilege in the United States. Attending to the practices and possibilities of the family trust also leads us to a better understanding of how trust reform might begin to dislocate the family trust from its central positioning within the legal architecture of inequality. Ultimately, the family trust does not have to be coextensive with elite family advantage; it can be reimagined to work on behalf of communities that are economically vulnerable and historically dispossessed

Family Model and Mystical Body: Witnessing Gender Through Political Metaphor in the Early Modern Nation-State

The preferred political metaphor in the constitutionalist context was the mystical political body, a concept that defined a system in which power was shared and the well-being of the community was linked to the well-being of the individual. Within the mystical political body, the theoretical possibility exists for women not only to occupy a civic space through organic (and organological) association but also to articulate their perspective and its consequences for the political community in a civically approved way. In the mystical body, women approach a citizenship status impossible within the traditional family framework and their witnessing is closely associated with the expansive juridicalism of the sixteenth century

The Secret Economy of Charitable Giving

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent above all other considerations. Recent reforms, however, have moved courts toward a more flexible application of the doctrine. In this Article, I analyze certain high-profile cases that have driven these reforms-including the presumption of general charitable intent, the recognition of wasteful as a criterion, and the deployment of deviation-and explain how these reforms represent positive change. Moreover, I provide a theoretical grounding to account for the correctness of these reforms. I argue that charitable giving should be understood as embedded in a nexus of material and social exchanges-part of the charitable gift economy. I describe how charitable giving provides a range of benefits to donors, including both tangible tax benefits and intangible benefits such as status, social identity, and warm glow. Based on this understanding of the charitable gift economy, courts and charities alike should embrace current reforms and seek to expand them further

A Tale of Three Families: Historical Households, Earned Belonging, and Natural Connections

The work of this Article is to present a new and synthetic reading of cases about wives, illegitimate children, and unwed fathers that follows these three logics, revealing how they weave together and why earned belonging provides the strongest support for Ginsburg\u27s original vision of an equalized household

Publicity Rules for Public Trusts

That museums are public trusts is a truism in academic discourse and industry discussion. What various commentators mean when they speak about museums as public trusts, however, is less clear. This Article untangles and analyzes the various meanings of \u27public trust and how these meanings translate into regulatory systems. I propose that two predominant meanings-the public resource and trust law meanings-jointly constitute the definition of a public trust, and that each meaning has a consequent regulatory framework. These definitional and regulatory frameworks coexist without conflict in most contexts. In the context of deaccessioning,however, they collide. Deaccessioning-the practice of a museum selling art from its collection-is highly contested because it is perceived to be a significant violation of the public trust, in all meanings of the term.Nonetheless, public resource and trust law rules treat deaccessioning quite differently. Public resource rules, exemplified by industry standards and state statutes, strictly prohibit the use of deaccessioning funds for any purposes other than to purchase new art. Trust law rules, on the other hand, work primarily to ensure that the terms of organizational charters, trust instruments, and gift agreements are met. One goal of this Article is to identify and describe the public resource and trust law frameworks. A second goal is to leverage the debate surrounding deaccessioning as a means for discussing how the two frameworks compete and why the trust law framework, enhanced by the addition of corporate governance principles and grounded in publicity values, is preferable

Family Law

In the past year, Virginia courts have addressed a range of family law questions—new and old—that reflect the changing landscape of families and marriage. Questions related to same-sex marriage and divorce have begun to appear on Virginia court dockets, including an important case the Supreme Court of Virginia decided this year with respect to same-sex couples cohabiting and the termination of spousal support. Family law courts also saw shifts in gender norms—wives paying spousal support to their husbands and fathers being awarded physical custody of their children. These legal questions tested the limits of statutory language and helped to expand the legal understanding of marriage, family, and parenthood. In addition, recurring questions about entry into and exit from marriage persisted. Courts addressed varied claims relating to marriage validity, equitable distribution, separate property, spousal and child support, and visitation rights. This brief article provides an overview of some of the most salient cases, and those cases that will most likely have a lasting impact on this state‘s family law jurisprudence

What We Didn\u27t See Before

The essays in this Issue concentrate on a primary, and crucial, cluster of analytic concerns about the ways in which governments, artists, and architects have chosen to represent the concept of justice

Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere

In several countries, governments have embarked on major building expansion programs for their judiciaries. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the didactic path laid out in Medieval and Renaissance town halls, which repeatedly deployed symbolism in efforts to shape norms. Dramatic depictions then reminded judges to be loyal subjects of the state. In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from the state. The significant allocation of public funds reflects the prestige accorded to courts by governments that dispatch world-renowned architects to design these icons of the state. The investment in spectacular structures represents a tribute to the judiciary but should also serve as a reminder of courts’ dependency on other branches of government, which authorize budgets and shape jurisdictional authority. A double narrative comes as well from the design choices. The frequent reliance on glass facades is explained as denoting the accessibility and transparency of the law. But courthouse interiors tell another story, in which segregated passageways (“les trois flux”) have become the norm, devoting substantial space and cost to isolating participants from each other. Further, administrative offices consume the largest percentage of the square footage, illuminating a shift away from public adjudication toward alternative dispute resolution and problematizing the emphasis on courtrooms. The new monumentality reflects but does not frankly acknowledge the challenges to courts from democratic precepts that grant “everyone” entitlements to public hearings before independent jurists. The buildings are reminders of courts’ contributions to the public sphere, while new rules reconfiguring adjudication privilege private conciliation