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This book brings together twelve original essays by leading scholars of law, politics, and society to address the most important question facing the LGBT movement today: What does marriage equality mean for the future of LGBT rights?In doing so, it explores crucial and wide-ranging social, political, and legal issues confronting the LGBT movement, including the impact of marriage equality on political activism and mobilization, antidiscrimination laws, transgender rights, LGBT elders, parenting laws and policies, religious liberty, sexual autonomy, and gender and race differences. The book also looks at how LGBT movements in other nations have responded to the recognition of same-sex marriages, and what we might emulate or adjust in our own advocacy.

In the past several decades, medicine, the media, and popular culture have focused on mothers as the primary source of health risk for their children, even though American children are healthier than ever. The American legal system both reflects and reinforces this conception of risk. This book explores how this occurs by looking at unconscious psychological processes, including the ways in which we perceive risk, which shape the actions of key legal decisionmakers, including prosecutors, judges, and jurors. These psychological processes inevitably distort the way that ostensibly neutral legal principles are applied in ways that are biased against mothers. The book shows how assertions that mothers and mothers-to-be have “risked” their children’s health play out in practice. Pregnant women, women who do or do not breastfeed, and mothers whose children are injured or killed by the mother’s abusive male partner end up facing civil lawsuits and criminal prosecution. The book also illustrates how America’s resistance to the precautionary principle has led to an epidemic of children poisoned by lead. Vaccination is the only area in which parents are permitted to opt out of medically recommended health care for their children. The book explores the role of “choice” in children’s health and how it is applied unevenly to mothers and others, including manufacturers of toxic products. The book ends with recommendations for real improvement in children’s health.

This book is a treatise on youth justice which examines the treatment, by the criminal law and the criminal justice system, of children who commit serious crimes. It draws on legal, philosophical and Childhood Studies literature to look at the interaction between law and childhood and considers a number of cases, including the murder of James Bulger in 1993 through these lenses, noting the difficulties for legal systems, of accommodating individuals who are, simultaneously, both “child” and “criminal”. The law’s impulse is to protect children and to call to account and punish offenders – aims which sometimes conflict. Other areas of law encounter similar difficulties in the tension between the child’s need for protection and for the nurture of his/her growing autonomy. Drawing on its discussion of this child-criminal paradox, the book examines two examples of the law’s response to children who offend: the age of criminal responsibility and the doli incapax presumption. It proceeds to argue that, in every case, a thorough investigation of the child’s criminal capacity, drawing on developmental psychology, is necessary to provide a fair and rational basis for decisions on responsibility and disposal in respect of such children. It presents a model for achieving this. It also examines the existing response of the Scottish legal system to such children, both in the courts, and through the children’s hearings system. Overall, the argument is for a fair and compassionate approach which takes account of the public interest and the need for public confidence in the criminal justice system.

American political and legal culture is uncomfortable with children's sexuality. While aware that sexual expression is a necessary part of human development, law rarely contemplates the complex ways in which it interacts with children and sexuality. Just as the law circumscribes children to a narrow range of roles—either as entirely sexless beings or victims or objects of harmful adult sexual conduct—so too does society tend to discount the notion of children as agents in the domain of sex and sexuality. Where a small body of rights related to sex has been carved out, the central question has been the degree to which children resemble adults, not necessarily whether minors themselves possess distinct and recognized rights related to sex, sexual expression, and sexuality. This book reflects on some of the unique challenges that accompany children in the broader context of sex, exploring from diverse perspectives the ways in which children emerge in sexually related dimensions of law and contemporary life. It explores a broad range of issues, from the psychology of children as sexual beings to the legal treatment of adolescent consent. It also explores whether and when children have a right to expression as understood within the First Amendment. This book goes beyond the traditional discourse of children as victims of adult sexual deviance by highlighting children as agents and rights holders in the realm of sex, sexuality, and sexual orientation.

This book examines ways in which the law relates to children, from private law (torts, contracts, property, child labor, and emancipation) to public law (First Amendment rights of children in school, abortion decision-making for children, school discipline, compulsory school attendance, and regulation of obscenity). The book discusses the major Supreme Court decisions involving the parent-child-state relationship. The book describes issues of medical decision-making for children, personal freedoms of children, and property entitlements of children, and addresses issues that arise in the educational context, or “school law.” The book also covers child neglect and abuse, and summarizes major Supreme Court cases in the juvenile justice area, discussing the broad jurisdiction of the juvenile court, arrest and search and seizure as they apply to children, and police interrogation of children. Finally, the book examines how some cases are prosecuted as criminal cases in adult court, issues related to the adjudicatory process (akin to the trial in adult court), and issues related to disposition in juvenile court (akin to the sentencing phase of criminal proceedings).

This book is a comprehensive analysis of common law marriage. Part I provides a cultural and historical history of the subject, from Ancient Roman Law to Medieval Canon Law, and analyzes the reception of the doctrine in the United States. The current law concerning common law marriage is extremely complex and uncertain. By analyzing more than 2,000 American cases, Part II of the book is intended to be a legal guide for courts, public authorities and law firms dealing with common law marriage cases. It discusses the legal requirements for the establishment of a common law marriage as to capacity, contract, implied agreement, cohabitation and holding out, burdens of proof, and presumptions. Choice of law rules in all American jurisdictions are analyzed. One of the greatest challenges that family law today faces in the Western World is the decreasing rate of marriage and the increasing number of unmarried cohabiting couples. Part III conducts from historical, comparative, and sociological perspectives a legal policy discussion concerning the future of common law marriage and the modern cohabitation law. It contains a comparison of both the judicial and legislative developments in the United States, Northern and Western Europe, Canada, Australia, and New Zealand. With no predetermined agenda or bias, arguments are presented and discussed to give legislators and policymakers a basis for their considerations. Different legal constructions are discussed and a new model of marriage is presented.

This book, the second of two volumes, considers the rules which apply where a person dies either without leaving a valid will, or leaving a will which fails to dispose of all of the person's assets. Among the questions considered are the following. What is the nature of the rules for the disposal of the deceased's assets? Are they mechanical or is there an element of discretion? Are particular types of property dealt with in particular ways? Is there entitlement to individual assets (as opposed to money)? Do the rules operate a parentelic system or a system of some other kind? Are spouses treated more favourably than children? What provision is made for extra-marital children, for adopted children, for step-children? Does cohabitation give rise to entitlement? How are same-sex couples treated? Broader questions also arise of a historical and comparative nature. Where, for example, do the rules in intestate succession come from in particular legal systems? Have they been influenced by the rules in other countries? How are the rules explained and how are they justified? To what extent have they changed over time? What are the long-term trends? And finally, are the rules satisfactory, and is there pressure for their reform? As in the previous volume, the focus is on Europe, and on countries which have been influenced by the European experience such as Australia, New Zealand, South Africa, the United States of America, Quebec, and the countries of Latin America. A further chapter is devoted to Islamic Law. The book opens with a chapter on Roman law and concludes with an assessment of the overall development of the law in the countries surveyed, and with some wider reflections on the nature and purpose of the law of intestate succession.

The Protection of Women from Domestic Violence Act, 2005 (PWDVA) was enacted following a concerted campaign by the Indian women’s movement. The Lawyers Collective authored the law in consultation with women’s groups from across the country. Contributors to this volume address critical and hitherto less addressed areas pertaining to domestic violence and the law in India. The volume is divided into three parts. Part I includes chapters that cover the nature of structural inequality that perpetuates and condones domestic violence as a lesser ‘wrong’ or ‘crime’ and present the historical background to the fight against domestic violence in India, focusing on legislative developments. Part II presents essays around critical issues such as ‘right to residence’, marital rape, rights of cohabitees or ‘relationship in the nature of marriage’, secular nature of the PWDVA and its harmonious existence with personal law and criminal law. Analyses in this section reflect international standards in addressing domestic violence and present in-depth debates. Research studies in Part III engage with the expectations from the PWDVA and its enforcement through analysis of court orders that indicate the nature of relief sought by women, forms of domestic violence complained against, orders passed by courts and the multiagency response system created under the PWDVA, indicating the nature of services available to the domestic violence survivors. Areas where the PWDVA has been successful in providing protection and relief from domestic violence have been presented alongside challenges yet to be overcome, such as response mechanisms and budgetary constraints in its implementation.

It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at four related areas of the law: parental custody, state regulation of education, religion and parental rights, and nonparental third party rights. In each it is argued that, historically, the authority of the parent has been treated as a sacred trust, a delegation of state power made on the presumption that it will be employed to promote the eventual enfranchisement of the child; that the emergence of a rights orientation has threatened to uncouple the traditional linkage of rights and responsibilities, subordinating the best interests of the child and the legitimate needs of the state to parental preferences; and that a renewed reliance on the trust model of parentchild relations would better serve both the developing personhood of the child and the civil society to which he or she belongs. In each area of the law, we face the same historical reality: It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests.

Despite being commonplace in American households a generation ago, corporal punishment of children has been subjected to criticism and shifting attitudes in recent years. Many school districts have banned it, and many child advocates recommend that parents no longer spank or strike their children. This book taps into the expertise of social science scholars and researchers who address issues of corporal punishment, a subject that is now characterized as a key issue in child welfare. The chapters discuss corporal punishment, its use, causes, and consequences, drawing on a wide array of comparative, psychological, and sociological theories. Together, they clarify the analytical issues and lay a strong foundation for future research and interdisciplinary collaboration.

Over the past thirty-five years, federal courts have dramatically retreated from actively promoting school desegregation. In the meantime, state courts have taken up the mantle of promoting the vision of educational equity originally articulated in Brown v. Board of Education. This book provides a detailed analysis of why the state courts have taken on this active role and how successful their efforts have been. Since 1973, litigants have challenged the constitutionality of education finance systems in forty-five states on the grounds that they deprive many poor and minority students of adequate access to a sound education. While the plaintiffs have won in the majority of these cases, the decisions are often branded “judicial activism”—a stigma that has reduced their impact. To counter the charge, the book persuasively defends the courts' authority and responsibility to pursue the goal of educational equity. It envisions their ideal role as supervisory and offers innovative recommendations on how the courts can collaborate with the executive and legislative branches to create a truly democratic educational system.

This contribution to comparative family law brings together chapters on a comprehensive range of issues in family law in the United States and England, showing how they stand at the beginning of the new century and how they reached there. This provides an opportunity to examine how family law has reacted to a period of change in family life widely held to be without precedent. The legal analyses are set within critical accounts of wider social and family policy and against a fully explored demographic background provided by leading scholars in these areas. Readers will be challenged to understand the nature of family law and its possible future direction.

The book explores a significant episode of Indian social history, the Hindu Code Bill controversy that stirred the Indian social consciousness in the mid-twentieth century. Revisiting the communicative processes surrounding the reform of Hindu customary laws relating to marriage, divorce, succession, adoption, and maintenance, the book provides an in-depth account of the intense debate that took place in and outside the legislature involving political groups, social associations, religious organizations, legal associations, and the women’s movement. Placing the debate in a historical continuum, the author traces the genesis of the Hindu Code Bill by exploring the linkages of late eighteenth century initiatives of colonial administration, the efforts of eighteenth century social reformers, and the contribution of Indian national movement as well as women’s organizations in early twentieth century. The book analyses the relationship of discourses in the public and legislative spheres and emphasizes the role of Nehru, Ambedkar, B.N. Rau and other prominent personalities in the promotion of gender justice. The book argues that while effective implementation of enabling legal provisions were impeded by deeply entrenched patriarchal structures in Independent India, the debate contributed towards a gradual transformation of the Indian social consciousness, thus contributing towards gender justice in Indian society.

Over the past thirty years, there has been a dramatic shift in the way the legal system approaches and resolves family disputes. Traditionally, family law dispute resolution was based on an “adversary” system: two parties and their advocates stood before a judge who determined which party was at fault in a divorce and who would be awarded the rights in a custody dispute. Now, many family courts are opting for a “problem-solving” model in which courts attempt to resolve both legal and non-legal issues. At the same time, American families have changed dramatically. Divorce rates have leveled off and begun to drop, while the number of children born and raised outside of marriage has increased sharply. Fathers are more likely to seek an active role in their children's lives. While this enhanced paternal involvement benefits children, it also increases the likelihood of disputes between parents. As a result, the families who seek legal dispute resolution have become more diverse and their legal situations more complex. This book argues that the current “problem solving” model fails to address the realities of today's families. The book suggests that while today's dispute resolution regime may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family with lawyers representing all parties—a model that fits poorly with the realities of today's disputing families. To serve the families it is meant to help, the legal system must adapt and reshape itself.

During the past three decades, nations all over the world have been debating whether to allow same-sex couples to marry, or at least grant these couples various rights associated with marriage. This book presents a comparative study of the legal regulation of same-sex partnerships worldwide, as well as a unique survey of the status of same-sex couples in Europe. The author begins by providing a historical overview of the transformation of marriage from antiquity to the present, and then identifies and critically compares four principal models for the legal regulation and recognition of same-sex partnerships: civil marriage, registered partnership, domestic partnership, and cohabitation. He concludes that all of the models except civil marriage discriminate against gays and lesbians just as the “separate but equal” doctrine discriminated against African Americans; thus, so-called alternatives to marriage, even if they provide the same rights and benefits as marriage, are inherently unequal and therefore unconstitutional.

Failure to Flourish: How Law Undermines Family Relationships argues that the legal regulation of families stands fundamentally at odds with the needs of families. Strong, stable, positive relationships are essential for both individuals and society to flourish, but from transportation policy to the criminal-justice system and from divorce rules to the child-welfare system, the law makes it harder for parents to provide children with these kinds of relationships. Zoning laws create long commutes and impersonal neighborhoods. Criminal laws take parents away from home. And the laws we have to “resolve” conflicts in families are heavy-handed and adversarial, pitting family members against each other and creating a climate of crisis at the very moment when families need the greatest support. This book contends that we must reorient the legal system to help families avoid crises and, when conflicts arise, intervene in a manner that heals relationships. To understand how wrong our family-law system has gone and what we need to do to repair it, the book takes us from ancient Greece to cutting-edge psychological research and from the chaotic corridors of local family courts to a quiet revolution under way in how services are provided to families in need. Incorporating the latest insights of positive psychology and social research, the book sets forth a new, more emotionally intelligent vision for a legal system that not only resolves conflict but actively encourages the healthy relationships that are at the core of a stable society.

The book sees the governance of personal relationships as the exercise of power, from the traditional assumptions of patriarchy and the control one generation seeks to exercise over its successor, to the ideology of welfarism, where state institutions protect the interests of the vulnerable in accordance with its own perceptions of their interests. It argues that perceptions of rights are a significant counterpoise to such exercises of power. Against that background, it explores the interrelationship between the regulation by law of people's personal lives and the values of friendship, truth, respect, responsibility and community. A variety of controversial issues are examined in the light of those values including the legal regulation of gay and unmarried heterosexual relationships, freedom of procreation, state supervision over the exercise of parenthood, the role of fault in divorce law, the way parenthood is allocated, the rights and responsibilities of parents to control their children, the place of religion in the family, the rights of separated partners regarding property and financial support, and of separated parents regarding their children. The book offers a new picture of intimacy at the centre of personal relationships and sets out the elements for a conceptual framework according to which regulation of people's personal lives can be justified in an open society.

Developments in the law, scholarship, and research since 2006 form a substantial part of the second edition of this book which sets the governance of personal relationships in the context of the exercise of social and personal power. Its central argument is that this power is counterbalanced by the presence of individual rights. This entails an analysis of the nature and deployment of rights, including human rights and children’s rights. Against that background, the book examines the values of friendship, truth, respect, and responsibility, and how the values of individualism co-exist with those of the community in an open society. It argues that central to these values is respecting the role of intimacy in personal relationships. In doing this, a variety of issues are examined, including the legal regulation of married and unmarried relationships, same-sex marriage, state supervision over the inception and exercise of parenthood (including surrogacy and assisted reproductive technology), the role of fault and responsibility in divorce law, children’s rights and welfare, religion and family rights, the rights of separated partners regarding property and of separated parents regarding their children, and how states should respond to cultural diversity.

For many years family law was viewed as a study of the regulation of relationships of husband and wife, and parent and child. By the close of the 20th century, basic questions about who should be officially designated a family member and by what procedure were being raised both in the legislature and in litigation. In addition, conventional models that had defined domestic relations such as marriage, divorce, and adoption were being expanded to include contemporary patterns of living arrangements. This book examines the present state of family law in America. Among its themes is the tension between individual autonomy and governmental regulation in all aspects of family law. It examines both conventional and new definitions of formal and informal domestic relationships. It analyses the extent to which relationships established before marriage are being regulated, and how marriage is being redefined to take into account equality of the sexes. It demonstrates how the definition of marriage as a partnership in which the individual spouse's rights are recognized has resulted in protection of the vulnerable spouse. It examines fault and no-fault divorce procedures and the extent to which these procedures reflect social realities. This book describes state intervention into the parent and child relationship and how this is reflected in the re-examination of the privacy of the family unit. It concludes with a discussion of the conventional model of adoption of children and how additional models are being developed to take into account new family forms.

For many years family law was viewed as a study of the regulation of clearly defined relationships of husband and wife and parent and child. In the case of husband and wife, it was through formal legal procedures or informal arrangements called marriage. In the case of parent and child it was either through biology or adoption. Equally defined were the stages by which these relationships were established, maintained, and terminated. However, by the close of the twentieth century, basic questions about who should be officially designated a family member and by what procedure were being raised both in the legislature and in litigation. In addition, conventional models that had defined domestic relations were being expanded to include contemporary patterns of living arrangements and the current reality or new models were being constructed. This book examines family law in America and the tension between individual autonomy and governmental regulation. The book analyzes the definitions of formal marriage and informal marriage, the extent to which relationships established before marriage are regulated, and how marriage is being redefined to take into account equality of the sexes. Also examined are divorce procedures, alimony, assignment of property upon divorce, determining what is marital property and what is separate property, child custody, and how additional models are being developed to take into account new family forms. This second edition captures recent developments affecting family law in America, including same-sex marriage and features new insights into adoption, assisted reproduction technologies, and sexual abuse of children by clergy.