RECONCEIVING THE FAMILY
This book provides a critical examination of and reflection on the American LawInstitute’s Principles of the Law of Family Dissolution: Analysis and Recommenda-tions, arguably the most sweeping proposal for family law reform attempted in theU.S. over the last quarter century. The volume is a collaborative work of individualsfrom diverse perspectives and disciplines who explore the fundamental questionsabout the nature of family, parenthood, and child support. The contributors areall recognized authorities on aspects of family law and provide commentary on theprinciples examined by the ALI – fault, custody, child support, property division,spousal support, and domestic partnerships, utilizing a wide range of analyticaltools, including economic theory, constitutional law, social science data, and lin-guistic analysis. This volume also includes the perspectives of U.S. judges andlegislators and leading family law scholars in the United Kingdom, Europe, andAustralia.
Robin Fretwell Wilson is a Professor of Law at the University of Maryland School ofLaw. She is the co-editor of The Handbook of Children, Culture & Violence and haspublished articles on the risks of abuse to children in the Cornell Law Review, theEmory Law Journal, the San Diego Law Review, and the Journal of Child and FamilyStudies. Professor Wilson has testified on the use of social science in legal decision-making in Joint Hearings before the Federal Trade Commission and Departmentof Justice. A member of the Executive Committee of the Family and Juvenile LawSection of the Association of American Law Schools, Professor Wilson frequentlylectures on violence to children, including presentations at Yale University’s EdwardZigler Center for Child Development and Social Policy and the National Societyfor the Prevention of Cruelty to Children in London, England.
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Reconceiving the FamilyCritique on the American Law Institute’sPrinciples of the Law of Family Dissolution
Edited by
Robin Fretwell Wilson
University of Maryland School of Law
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Reconceiving the family critique on the American Law Institute’s Principlesof the law of family dissolution / edited by Robin Fretwell Wilson.
p. cm.ISBN 0-521-86119-5 (hardcover)1. Divorce – Law and legislation – United States. 2. Custody of children – United States.3. Child support – Law and legislation – United States. 4. Equitable distributionof marital property – United States. 5. Divorce settlements – United States.I. Wilson, Robin Fretwell. II. Title.KF535.R43 2006346.7301′66 – dc22 2006010004
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In Memory of Our Colleagues,
Lee Teitelbaum and David Westfall
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Contents
Acknowledgments page xi
Foreword, by Mary Ann Glendon xiii
List of Contributors xvii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Robin Fretwell Wilson
PART ONE. FAULT
1 Beyond Fault and No-Fault in the Reform of Marital Dissolution Law . . . . . . . 9Lynn D. Wardle
2 A City without Duty, Fault, or Shame . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Scott FitzGibbon
PART TWO. CUSTODY
3 Partners, Care givers, and the Constitutional Substance of Parenthood . . . . . . 47David D. Meyer
4 Custody Law and the ALI’s Principles: A Little History, a Little Policy,and Some Very Tentative Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67Robert J. Levy
5 Undeserved Trust: Reflections on the ALI’s Treatment of De Facto Parents . . . . 90Robin Fretwell Wilson
PART THREE. CHILD SUPPORT
6 Asymmetric Parenthood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121Katharine K. Baker
7 Paying to Stay Home: On Competing Notions of Fairnessand the Imputation of Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142Mark Strasser
PART FOUR. PROPERTY DIVISION
8 The ALI Property Division Principles: A Model of Radical Paternalism? . . . . . 163John DeWitt Gregory
vii
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viii Contents
9 Unprincipled Family Dissolution: The ALI’s Recommendationsfor Division of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176David Westfall
10 You and Me against the World: Marriage and Divorce fromCreditors’ Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195Marie T. Reilly
PART FIVE. SPOUSAL SUPPORT
11 Back to the Future: The Perils and Promise of a Backward-LookingJurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209June Carbone
12 Money as Emotion in the Distribution of Wealth at Divorce . . . . . . . . . . . . . 234Katharine B. Silbaugh
13 Postmodern Marriage as Seen through the Lensof the ALI’s “Compensatory Payments” . . . . . . . . . . . . . . . . . . . . . . . . . . 249Katherine Shaw Spaht
PART SIX. DOMESTIC PARTNERSHIP
14 Domestic Partnership and Default Rules . . . . . . . . . . . . . . . . . . . . . . . . . . 269Margaret F. Brinig
15 Private Ordering under the ALI Principles: As Natural as Status . . . . . . . . 284Martha M. Ertman
16 Marriage Matters: What’s Wrong with the ALI’s DomesticPartnership Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305Marsha Garrison
17 Domestic Partnerships, Implied Contracts, and Law Reform . . . . . . . . . . . . 331Elizabeth S. Scott
PART SEVEN. AGREEMENTS
18 The Principles and Canada’s “Beyond Conjugality” Report: The Move towardsAbolition of State Marriage Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351Jane Adolphe
19 The ALI Principles and Agreements: Seeking a Balance between Statusand Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372Brian H. Bix
20 The Principles on Agreements: “Fairness” and InternationalHuman Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392Barbara Stark
PART EIGHT. JUDICIAL AND LEGISLATIVE PERSPECTIVES
21 A Formula for Fool’s Gold: The Illustrative Child Support Formulain Chapter 3 of the ALI’s Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 409Maura D. Corrigan
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Contents ix
22 A Response to the Principles’ Domestic Partnership Scheme . . . . . . . . . . 425Jean Hoefer Toal
PART NINE. INTERNATIONAL REFLECTIONS
23 Empowerment and Responsibility: The Balance Sheet Approachin the Principles and English Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433John Eekelaar
24 The Past Caretaking Standard in Comparative Perspective . . . . . . . . . . . . . . 446Patrick Parkinson
25 Compensating Gain and Loss in Marriage: A Scandinavian Commenton the ALI Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472Tone Sverdrup
Afterword: Elite Principles: The ALI Proposals and the Politics of Law Reform, by CarlE. Schneider 489
Index 507
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Acknowledgments
I am grateful to Mary Ann Glendon for believing in this project, for chairing the October2004 Workshop entitled “Critical Reflections on the American Law Institute’s Principlesof the Law of Family Dissolution” at Harvard Law School at which many of us refined ourchapters, and for her quiet cheerleading throughout. I am also grateful to Carl Schneiderfor letting me take a page from his Workshop playbook. It is entirely appropriate that MaryAnn and Carl form the “book-ends” for this volume since it could not have happenedwithout either of them.
I am indebted to the University of Maryland School of Law for providing a team ofresearch assistants without whom this volume could not have been completed withinmy lifetime. Michael Clisham, Kevin Madagan, and Mikaela Rossman devoted an entireyear to this project, while Tamiya Baskerville, Asher Chancery, Kristen King, JenniferMartin, Rahul Narula, Mona Shah, Amy Siegel, and DelY’vonne Whitehead poured them-selves into refining the final manuscript. Susan McCarty, Susan Herrick, and the lateRyan Easley of the University of Maryland Law Library provided citation verificationand legal research. Yvonne McMorris provided tireless secretarial assistance and, moreimportantly, moral support throughout this project. Jack Duncan provided expert assis-tance during the editing cycle, which was made through support from the Institute forAmerican Values. My former colleagues at the University of South Carolina also pro-vided support and encouragement for this volume, both while I was with them at USCand well after I left. David Owen provided invaluable guidance on publishing an editedcollection.
I am thankful for John Berger’s advice in the formative stages of this project and for KenKarpinski’s careful, thoughtful copy-editing. I was especially sorry that Lee Teitelbaumcould not join us at Harvard as originally planned, but am thankful to him for his warmsupport of this project and his mentoring.
I am indebted to the Family Law Council of the Institute for American Values for itsgenerous support of the October 2004 Workshop, out of which came the corpus of thisvolume. I am especially grateful to David Blankenhorn for his commitment to bringingtogether interesting people who have something interesting to say, and letting them say it.Finally, I am indebted to and admiring of the American Law Institute and the reportersfor the Principles of the Law of Family Dissolution, Professors Ira Ellman, Grace
xi
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xii Acknowledgments
Blumberg, and Katherine Bartlett, for what is arguably the most significant family lawreform attempted in generations.
This is for the Dream Team: Mark Ancell, Michael Clisham, Jack Duncan, Jennifer Hilker,Pamela Melton, and Ken Wilkinson. I could not have done it without you. And, of course,this is for Glen.
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Foreword
Mary Ann Glendon
The late twentieth century was a time of unprecedented changes in family behavior, familylaw, and ideas about marriage and family life. Starting in the mid-1960s, in North America,Europe, and Australia, a quake erupted across the whole set of demographic indicators.It came on so rapidly that it caught even professional demographers by surprise: birthrates and marriage rates fell, while divorce rates, births of children outside marriage,and the incidence of nonmarital cohabitation rose steeply. The director of the FrenchNational Demographic Institute characterized the changes as widespread, profound, andsudden: widespread, because so many nations had been affected; profound, because thechanges involved increases or decreases of more than 50 percent; and sudden, because theytook place in less than twenty years.1 Along with changes in family behavior came lessquantifiable but no less momentous shifts in the meanings that men and women attributeto sex and procreation, marriage, gender, parenthood, kinship relations, and to life itself.
These developments were part and parcel of social processes that Francis Fukuyamahas described collectively as “The Great Disruption”: rising affluence, accelerating geo-graphical mobility, increasing labor force participation of women (including mothers ofyoung children), more control over procreation, and greater longevity.2 By the 1990s, thedemographic indicators had more or less stabilized, but they have remained near theirnew high or low levels, registering only modest rises or declines since then.3 The legal andsocial landscape had been utterly transformed. Familiar landmarks had disappeared. Wewere living in a new world.
With hindsight, the question arises as to whether those years of turbulence provideda favorable climate for law revision. The fact is, however, that family law systems werecompletely overhauled, often very hastily, in the 1970s and 80s.4 Family law became atesting ground for various ways of reimagining family relations, and an arena for strugglesamong competing ideas about individual liberty, human sexuality, marriage, and familylife. Many unforeseen developments, notably a sharp increase in poor, fatherless families,now seem to have been influenced by legal changes that were often presented as merely“adapting the law to social reality.” Relatively little attention was paid to the ways in whichlaw also helps to shape social reality.
1 Louis Roussel, Demographie: deux decennies de mutations dans les pays industrialises, in I Family, State, andIndividual Economic Security 27 (M.T. Meulders and J. Eekelaar eds., 1988).
2 Francis Fukuyama, The Great Disruption (1999).3 Stephen Bahr, Social Science Research on Family Dissolution: What it Shows and How it Might be of Interest to Family
Law Reformers, 4 J.L. & Fam. Stud. 5, 5–6 (2002).4 See generally, Mary Ann Glendon, The Transformation of Family Law (1989).
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xiv Foreword
Of the legal developments that have transformed family law, several represent pro-nounced departures from past arrangements: the reconceptualization of marriage and thefamily under the influence of ideas about gender equality, individual rights, and neutralitytoward diverse lifestyles; the trend toward lessened state regulation of marriage formationand dissolution as such (i.e., fewer restrictions on entry into marriage and fewer obstaclesto terminating marriage); and, despite the rise of “children’s rights,” the creation of a moreadult-centered system of family law.
When the entire complex of changes is viewed together, it is apparent that the storythe law tells about family life has been substantially rewritten. The legal narrative nowplaces much more emphasis on the rights of individual family members than on familialresponsibilities. Marriage is treated less as a necessary social institution designed to providethe optimal environment for child rearing than as an intimate relationship between adults.This historic transition has taken place through piecemeal changes, with little deliberationconcerning the likely social consequences of weakening the connections between marriageas a couple and marriage as a child-raising partnership.
In short, the affluent western nations have been engaged in a massive social experiment –one that has opened many new opportunities and freedoms to adults, but one that presentsnew risks where children and other dependents are concerned. By ratifying many changesin the sexual mores and marriage behavior of large numbers of adults, the law has playedits role in transforming the very experience of childhood. An unprecedented proportionof children are now spending all or part of their childhoods in fatherless homes, often inpoverty. In fact, female-headed families created by divorce, desertion, or single parenthoodnow constitute the bulk of the world’s poverty population. As for intact child-raising fam-ilies, their standard of living is generally lower than that of childless households, especiallyif the mother stays home to care for the children.
The political obstacles to more child-oriented policies, moreover, have increased. For,as the proportion of childless households grows, the culture has become ever more adultcentered.5 With declining birth rates, children are less visible in everyday life; adults are lesslikely to be living with children; and neighborhoods less likely to contain children. Supportfor measures that might address the needs of child-raising families becomes harder to rally.As the old saying goes, “Out of sight, out of mind.”
It thus seems evident that among the most pressing issues for family law and policyin the future will be those arising from the impaired ability of families to socialize thenext generation of citizens, and the diminished capacity of society’s support institutions(families, government, mediating structures of civil society) to furnish care for the veryyoung and other dependent persons. Even advanced welfare states still rely heavily onfamilies for the care of the young, the frail elderly, the sick, and the severely disabled,but the capacity of families to perform these functions has been dramatically reducedeverywhere. No society, for instance, has yet found a substitute for the care, services, andsupport formerly furnished by the unpaid labor of women. As the baby boom generationapproaches retirement age, it is becoming apparent that the combination of declining birthrates, greater longevity, and shortage of caretakers has brought health care and pensionsystems to the brink of crisis.
5 Peter Uhlenberg, Changing Adulthood Changes Childhood, (New York: Institute for American Values, WorkingPaper No. 57, 1998).
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Foreword xv
What makes all these problems especially thorny is that their resolution will requirefinding a just balance among competing goods. After all, many of the developments thathave weakened legal and social family ties are unintended consequences of freedoms thatmodern men and women prize. No one, for example, wants to roll back the clock onwomen’s rights. The challenges are thus formidable: How can society take account ofchildren’s needs (and the preferences of many, perhaps most, mothers) while still providingequal opportunities to women? How can society respond to the needs of persons in brokenor dysfunctional families while strengthening, or at least not undermining, the stablefamilies upon which every society depends for the socialization of its future work forceand citizenry? How can policy makers develop adequate responses to families currently indistress while shifting probabilities so that fewer families will find themselves in distressedcircumstances in the future? When do the advantages for individuals of unprecedentedfreedom begin to be outweighed or nullified by the social costs of the cumulative effectsof individual choices on social and family life?
By the time the American Law Institute completed its Principles of the Law ofFamily Dissolution in 2002, family law had already been substantially transformed inall western legal systems. The Principles consolidated many of the transformative trendsand recommended further, far-reaching changes. Thus, the present volume, with its com-prehensive appraisal of that ambitious undertaking, could not have appeared at a morepropitious moment. Now that we are in a period of relative demographic equilibrium, thetime is ripe for analysis of how various innovations have worked out in practice, for evalu-ation of their consequences, and for charting future directions that will benefit individuals,families, the dependent population, and society as a whole. These are matters that needto be widely discussed and deliberated, not only among specialists, but among the peoplemost directly affected. How fortunate we are, then, to have this rich collection of essays byso many distinguished judges, practitioners, and scholars. Their diverse viewpoints willsurely raise the level of the national conversation about where family law has been, whereit is now, and where it ought to be headed.
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List of Contributors
Jane F. Adolphe is an Associate Professor of Law, Ave
Maria School of Law. Her research largely concerns
issues pertaining to the family and international law.
Katharine K. Baker is a Professor and Associate Dean
at Chicago-Kent College of Law. She is the author of
numerous articles on family law, feminism, and
sexual violence.
Brian H. Bix is the Frederick W. Thomas Professor of
Law and Philosophy, University of Minnesota. He
works in Family Law, Jurisprudence, and Contract
Law. He is one of the five authors of Family Law:
Cases, Text, Problems (4th ed. 2004), and the author
of A Dictionary of Legal Theory (2004), Jurisprudence:
Theory and Context (4th ed. 2006), and Law,
Language, and Legal Determinacy (1993).
Margaret F. Brinig is the William G. Hammond
Professor of Law at the University of Iowa College of
law. She has written a number of books, including
From Contract to Covenant: Beyond the Law and
Economics of the Family (2000), and many articles on
family law.
June Carbone is the Associate Dean for Professional
Development, and a Professor of Law at Santa Clara
University. She served as Presidential Professor of
Ethics and the Common Good at the University’s
Markkula Center for Applied Ethics from 2001 to
2003. She is the author of From Partners to Parents:
The Second Revolution in Family Law (2000) and the
third edition of Family Law (2005) with Leslie Harris
and the late Lee Teitelbaum.
Justice Maura D. Corrigan was elected to the
Michigan Supreme Court in 1998 and was the Chief
Justice of that Court from 2001–2004. She currently
serves on the Pew Commission on Children in Foster
Care and on the U.S. Department of Health &
Human Services’ Advisory Task Force on Child
Support. Previously, while a member of the
Conference of Chief Justices, she co-chaired the
Problem Solving Courts Committee.
John Eekelaar is a Fellow of Pembroke College,
Oxford and was Reader in Family Law at Oxford
University until 2005. He has written and researched
on family law for many years. He is co-director of the
Oxford Centre for Family Law and Policy, and a
Fellow of the British Academy. He is now Academic
Director of Pembroke College.
Martha M. Ertman is a professor at the University of
Utah’s S.J. Quinney College of Law. She is the author
of a number of law review articles bridging
commercial and family law, and edited the book
Rethinking Commodification: Readings in Law &
Culture (2005) with Joan Williams.
Scott FitzGibbon is a professor at Boston College Law
School, a member of the American Law Institute, and
a member of the International Society of Family Law.
One of his major scholarly interests is jurisprudence
and legal philosophy, with special attention to
friendship and marriage in the Aristotelean tradition.
Marsha Garrison is Professor of Law at Brooklyn Law
School. She is the coauthor of Family Law: Cases,
Comments and Questions (5th ed. 2003) and has
written many articles on a diverse range of family law
issues.
Mary Ann Glendon is the Learned Hand Professor of
Law at Harvard University. Her books include A
World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights (2001), A Nation Under
Lawyers: How the Crisis in the Legal Profession is
Transforming American Society (1994), and Rights
Talk: The Impoverishment of Political Discourse
(1991).
John DeWitt Gregory is the Sidney and Walter Siben
Distinguished Professor of Family Law at Hofstra
University. He is the author or co-author of several
books, including Property Division in Divorce
xvii
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xviii Contributors
Proceedings: A Fifty State Guide (2003) (with Janet
Leach Richards and Sheryl Wolf), and a number of
articles.
Robert J. Levy is the William L. Prosser Professor of
Law Emeritus at the University of Minnesota Law
School. He is currently a Visiting Professor at Florida
International Law School. Professor Levy is the
author of several books about Family Law and several
articles about the ALI Principles. Professor Levy
was a co-Reporter for the Uniform Marriage and
Divorce Act.
David D. Meyer is a Professor and the Mildred Van
Voorhis Jones Faculty Scholar at the University of
Illinois College of Law. He has written widely at the
intersection of constitutional law and family law.
Patrick Parkinson is a Professor and Head of the Law
School at the University of Sydney, Australia. He is
the Chair of the Family Law Council (the Australian
Government’s advisory body) and also chaired a
review of the Child Support Scheme in 2004–05. He
has written many books and articles on family law,
child protection and the law of equity and trusts. He
is a member of the Executive Council of the
International Society of Family Law.
Marie T. Reilly is a Professor of Law at the University
of South Carolina School of Law. She is a teacher and
author of articles on bankruptcy and commercial law
subjects.
Carl E. Schneider is the Chauncey Stillman Professor
of Law and Professor of Internal Medicine at the
University of Michigan. He is the co-author of a
family-law casebook – An Invitation to Family Law:
Principles, Process and Perspectives (2d ed. 2000) –
and the author of The Practice of Autonomy: Patients,
Doctors, and Medical Decisions (1998).
Elizabeth S. Scott is a University Professor and Class
of 1962 Professor of Law at the University of Virginia.
She was a founder and is co-director of the Center for
Children, Families and the Law at the University of
Virginia. She is a co-author with Ira Ellman and Paul
Kurtz of a widely used casebook in Family Law, and
has also co-authored (with Walter Wadlington,
Charles Whitebread, and Samuel Davis) a casebook
on children in the legal system.
Katharine B. Silbaugh is Professor of Law and
Associate Dean for Academic Affairs at Boston
University School of Law. She is author of numerous
publications addressing family and employment law
aspects of household labor and the work-family
conflict.
Katherine S. Spaht is the Jules F. and Frances L.
Landry Professor of Law at Louisiana State University.
She is the author of a treatise on community property
and three textbooks on family law and successions.
She has authored numerous articles and chapters in
books on the subject of marriage.
Barbara Stark. Professor of Law at Hofstra Law
School, is the author of International Family Law: An
Introduction (2005), editor of Family Law and Gender
Bias: Comparative Perspectives (1992), and the author
of over fifty articles and chapters on family law and
human rights law.
Mark Strasser is the Trustees Professor of Law at
Capital University Law School in Columbus, Ohio.
He is the author of several books including On
Same-Sex Marriage, Civil Unions, and the Rule of Law:
Constitutional Interpretation at the Crossroads (2002)
and Legally Wed: Same-Sex Marriage and the
Constitution (1997).
Tone Sverdrup is Professor of Law, Faculty of Law,
University of Oslo. She is the author of several books,
including one on co-ownership in marriage and
unmarried cohabitation, and the standard family law
textbook in Norway (co-authored with Professor
Peter Lødrup).
Jean Hoefer Toal is the Chief Justice of the Supreme
Court of South Carolina and a former member of the
South Carolina House of Representatives. She is the
author of numerous law review articles and other
scholarly works.
Lynn D. Wardle is a Professor of Law at the J. Reuben
Clark Law School of Brigham Young University. He is
a past president of the International Society of Family
Law, and the author, co-author, or co-editor of many
books and law review articles mostly addressing
issues of family law, including Marriage and Same-Sex
Unions: A Debate (Lynn D. Wardle et al. eds.,
2003).
David Westfall held the John L. Gray and Carl F.
Schipper, Jr. professorships at Harvard Law
School, where he joined the faculty in 1955. His
publications include Estate Planning Law and
Taxation (4th ed. 2001); Forcing Incidents of Marriage
on Unmarried Cohabitants: The American Law
Institute’s Principles of Family Dissolution, published
in the Notre Dame Law Review; and Family Law
(1994).
Robin Fretwell Wilson is a Professor of Law at the
University of Maryland School of Law and a member
of the Executive Committee of the Family and
Juvenile Law Section of the Association of American
Law Schools.
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