Aug 3, 2023 Dara E. PurvisFamily Law
It can be difficult to imagine today, but in 2015 when Obergefell v. Hodges was decided, it seemed to many people that LGBTQ equality was nearly won, at least as to family law. Some employers, courts, and state legislatures even rolled back programs or protections for LGBTQ couples on the logic that those couples could marry and no longer needed things like domestic partnerships that replaced some of the legal benefits of marriage. Such optimism as to the impact of marriage equality was unfounded, of course, and in today’s political climate seems laughably naive. Marriage equality did not signal victory of LGBTQ equality generally, nor did it even eliminate different legal treatment of LGBTQ families, as Susan Hazeldean incisively demonstrates in Illegitimate Parents. Professor Hazeldean provides a comprehensive explanation of one of the starkest differences remaining in family law: unmarried same-sex couples are not recognized as legal parents in many circumstances where unmarried different-sex couples are.
As Hazeldean traces in her article, post-Obergefell optimism even convinced many judges. One particularly pointed example Hazeldean provides is a Kentucky court of appeal judge, who argued that choosing not to marry should be understood as effectively waiving parentage claims even to a child that the unmarried partner raised from birth. (P. 1599.) But as Hazeldean shows with a fifty-state survey of parentage laws, states vary wildly in how much protection they give parental relationships linking both members of unmarried same-sex couples and their children. In most states, Hazeldean points out, marriage is the only way for both members of the couple to establish a legal parent/child relationship. Continue reading "Unmarried Same-Sex Parents: Obergefell’s Failure and Promise"
Aug 2, 2023 Paul HorwitzConstitutional Law
At least at this moment, one will find no uses of the word “scholactivism” in the Secondary Sources database on Westlaw. Yet readers encountering this neologism here will have little difficulty getting the gist of the word. They will have seen similar terms, like “scholar-activist” or “engaged scholarship.” They may believe the academy is increasingly welcoming of such approaches. They certainly know that in the United States, scholars of this stripe increasingly are targets for legislative interference. But they won’t puzzle over the word itself. That suggests a question worth examining. This is exactly what Oxford’s Tarunabh Khaitan has done, in an excellent article, along with a subsequent response to critics.
Although scholactivism is celebrated by some, Khaitan voices reasons for concern. His take is striking. It’s not the standard argument for “value neutrality in scholarship or pedagogy.” It has no specific political valence. And although it assumes a particular “role morality” for scholars centered on a devotion to “truth” and “knowledge,” it acknowledges that “every human activity—including scholarship—is permeated by power.” Neither, however, does Khaitan proceed by drawing a line between “good” and “bad” scholarship based on its outputs. Rather, he focuses on a motive-based account of scholactivism, and suggests that even scholactivism’s supporters should reject it for “instrumental reasons.” Continue reading "Constitutional Scholactivism, Foreign and Domestic"
Aug 1, 2023 Natsu Taylor SaitoEquality
Property, as we have come to know and protect it, is dispossession. This is the heart of Sherally Munshi’s Dispossession: An American Property Law Tradition, a carefully researched and richly nuanced piece that’s brilliant in the simplicity and clarity of its message. As Munshi illustrates, what appears as property from a vantage point of privilege may be understood equally validly as dispossession and this implies that the injustices associated with commodification and inequitable distribution cannot be redressed except from below. Not only from the perspective of those most dispossessed, but also, quite literally, from the ground up.
“The property law canon is full of forgetting.” (P. 1031.) Munshi’s stated intent is to develop a counternarrative of dispossession utilizing what we’ve learned from critical race theory as well as studies of settler colonialism and racial capitalism. Dispossession develops this narrative beautifully, enriching both property and critical theory by incorporating equity-minded insights from contemporary Indigenous and Black activists who counter the “uplifting narrative of national progress and racial redemption” that legal discourse and education promote and perpetuate. (P. 1031.) Continue reading "Property, Viewed From Below"
