Monthly Archives: January 2013

Reconsidering Work and Family with “the Marriage Equation”

Deborah A. Widiss, Changing the Marriage Equation, 89 Wash. U. L. Rev. 721 (2012).

Every day, married couples make decisions about how to allocate work within their relationships. Some couples specialize, with one person performing a breadwinning role and the other doing the lion’s share of caregiving tasks. Others divide breadwinning and caregiving tasks fairly evenly, and still others perform the breadwinning role together while outsourcing caregiving to housekeepers, gardeners, and nannies. When spouses make a decision about how to allocate work, the decision often feels like a private choice. Feminist scholars have long argued that, to the contrary, choices regarding breadwinning and caregiving are largely shaped, or even coerced, by law.

Deborah Widiss’s article Changing the Marriage Equation provides a new way of analyzing the complicated interaction of law, social norms, and individual choice that leads to gendered roles in marriage. Widiss argues that choices regarding the allocation of paid and care work are profoundly shaped by three factors, which together make up what she calls the “the marriage equation.” Two of the factors of the marriage equation are legal—sex-based classifications within marriage law, and the substantive law of marriage. The third is social—the gender norms of marriage. The article argues that all three factors affect couples’ decisions about the allocation of labor. Widiss also argues that the first factor, sex-based classifications within marriage law, was largely dismantled during the equal protection revolution of the 1970s, but that the other two factors continue to work together to produce gendered outcomes in the allocation of work within marriages. She then suggests that same-sex marriage can provide a natural experiment for assessing the relative strength of substantive marriage law and gender roles within the marriage equation. Continue reading "Reconsidering Work and Family with “the Marriage Equation”"

Uncomfortable Marriage

Yuvraj Joshi, Respectable Queerness, 43 Colum. Hum. Rts. L. Rev. 415 (2012).

Much legal scholarship about same-sex marriage by liberals presents arguments for judges to use when interpreting constitutional rights. Another current of critical research, from queer, feminist, or other left scholars, explores how expanding access to marriage may disadvantage those who will not or cannot marry, undermine an intersectional queer politics, or both. Much less writing has explored the impact, for gay men and lesbians who might marry or who have married, of the lobbying and litigation that made doing so possible.

Some reasons for this relative neglect are obvious. It may be too early to have meaningful data. The question may be one for sociologists. But surely another is that a lot of people assume that same-sex marriage is a good thing for at least those who take it up. Yuvraj Joshi’s paper joins the critical research about the potential harms arising from the campaign for same-sex marriage and its realization for those who wouldn’t walk down the aisle even if they could. But it also enriches legal scholarship by exploring the psychological effects of same-sex marriage for those who marry. Continue reading "Uncomfortable Marriage"

Considering the Civil Jury

Jason M. Solomon, The Political Puzzle of the Civil Jury, 61 Emory L.J. 1331 (2012).

The civil jury is in this year.  In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the civil jury as a political institution—in other words, the role of the jury in democracy.  Seeking to begin a discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and critically examines the justifications for the civil jury in this role.  Solomon’s is one of several excellent recent articles on the civil jury; others include John Langbein’s The Disappearance of the Civil Jury, and Darrell Miller’s Historical Tests, (Mostly) Unbalanced Rights, and What the Seventh Amendment Can Teach Us About the Second.

Solomon begins with a provocative argument that some of the most important cases in the last four terms of the Supreme Court, including Snyder v. Phelps, Wyeth v. Levine, Exxon Shipping Co. v. Baker, and Wal-Mart Stores, Inc. v. Dukes, reflect a distrust of the civil jury and a concern that juries are deciding law-like questions.  As a result, Solomon argues, we must continue to evaluate the jury.  In doing this in the past, the focus has been on whether the jury has the ability to decide cases effectively.  The ready response here has been that the ability of juries to decide cases matches that of judges.  In addition to an adjudicative role, however, some scholars argue that the jury serves as a political institution.  Solomon argues that this justification should be fully assessed, and the competencies of juries to judges should be compared. Continue reading "Considering the Civil Jury"