In the United States today, adults live in a variety of nonmarital relationships and situations, ranging from committed partners who cohabit, to people who cohabit with differing levels of commitment,1 to committed partners who live apart.2 An increasing number are single or in families of choice with non-intimate partners, while some intimate partners are in relationships with multiple people at the same time.3 The COVID-19 pandemic has affected all of these relationship forms differently.4 The coming years will reveal the extent to which these impacts will alter the social and legal landscape around nonmarital relationships. These relationships have produced a range of responses in both existing law and law reform efforts. Meanwhile, scholars from various disciplines are studying nonmarital relationships, including polyamorous arrangements and other communities of choice. The Uniform Law Commission has developed a new proposal for uniformity in this area that addresses property rights and equitable claims, but not the many other legal rights and obligations that might accrue.5 This issue of Family Court Review includes three articles of the many presented and discussed during the Roundtable.6 In “The Polyamorous Threat to Nonmarriage,” Katharine K. Baker considers what the official recognition of polyamorous relationships in cities like Somerville and Cambridge, Massachusetts,7 portends for the ability of cohabitants to obtain property and other rights at the end of their relationship. Many cohabitants fail to enter into express agreements regarding matters like property distribution. As a result, disputes arise at the end of the relationship in which one partner asks the court to infer the existence of an agreement to share property, usually in a manner similar to marriage.8 Instead of viewing the recognition of polyamorous relationships as a rising tide that will lift all nonmarital relationships, Baker argues that polyamory will make claims between cohabitants more difficult to maintain for two reasons. First, the existence of an alternative set of norms will make it less normatively justifiable for courts to assume that cohabiting couples intended to share property similarly to married couples. Polyamorists believe that relationships are inherently fluid, that financial commitments require clear formalities, and that assumptions about social norms—as opposed to direct communication and negotiation—are oppressive.9 In light of these alternative norms, Baker questions whether one can assume that cohabiting couples intended to share as married people do. Moreover, encouraging courts to act on these assumptions could oppress those with different views. Second, if more jurisdictions allow people in plural relationships to register for domestic partnerships, it will become less tenable for people who want their relationships to be legally recognized to not formally register.10 Polyamorists tend to formalize only those aspects of their relationships that they want to have formally recognized.11 The fact that they do so reinforces the utility of formal tools like contracts and registries, and casts further doubt on the intentions of those who do not. Baker argues that the ability of cohabitants to create inter se property obligations, already extremely limited under existing law, may become nearly impossible—an outcome she appears to welcome. In “Legal Reforms Appropriate for Cohabitants and LATs,” Cynthia Grant Bowman considers how distinctions between cohabitants and people who live apart in committed relationships (Living Apart Together, or “LATs”) should affect legal policy. Bowman proposes a two-pronged approach that would treat the two types of couples—cohabitants and LATs—differently. For cohabitants, because of her belief that cohabitation is a marriage alternative that (more often than LATs) includes children,12 she recommends three possible reforms: (1) imposing a status-based option, such that after a specific period of time (her recommendation is 2 years) or having a child together, the couple would be deemed “domestic partners,” (2) allowing parties to contract out of the imposed status and its obligations; and (3) establishing a system of registration as domestic partners.13 By contrast, because LATs identify the legal rights they seek as those that support caretaking and relate to health insurance, she proposes a scheme that would attach certain legal rights, such as family leave and hospital visitation after 5 years, and she would permit a registration system.14 Finally, in “Unwanted Cohabitation Agreements,” Margaret Ryznar identifies gaps in our understanding of cohabitants' attitudes toward agreements. This is an especially important question given that, domestically, agreements are understood to be one of the primary means of securing rights at the conclusion of a nonmarital relationship, which Ryznar describes as “the contract approach to cohabitation.”15 Yet, cohabitants mostly appear not to enter into these agreements. In a small, informal survey Ryznar conducted in one of her courses, nearly half of the participants did not want an agreement prior to commencing cohabitation.16 While not making any conclusions based on these results, she proposes a few questions that future studies should investigate further, particularly, whether this attitude holds true, and, if so, possible reasons why: Is the reason that cohabitants are unaware of the law that regulates their relationship? Do they think they have more rights than they do? Could this also be the reason why cohabitants generally fail to engage in any formalities? Or might the reason be that individuals are optimistic about their relationship potential, or about the future generally? Ryznar contextualizes the American approach by surveying how other countries regulate cohabitation, including jurisdictions that provide cohabitants with rights similar to marriage; that provide only minimal rights by statute at the conclusion of a relationship; or that allow the cohabiting couple to register their nonmarital relationship. According to Ryznar, exploring why cohabitants fail to enter into agreements is a necessary step in guiding reform efforts domestically. As these articles demonstrate, the range of topics explored through the Nonmarriage Roundtables is expanding, representing the increasing options in legal responses to nonmarriage. Although the resolution of property disputes between nonmarital partners remains a critical concern, scholars have become interested in exploring the availability of other types of legal rights (such as the right to contract for intimate services17) and the impact of demographic variations that the law has previously overlooked or oversimplified (including age, class, and relationship configuration18). We expect the literature in this area to grow in scope and depth in the coming years. We thank Editor-in-Chief Barbara Babb and Social Science Editor Marsha Kline Pruett for publishing these articles. We also thank all the participants in the Third Roundtable on Nonmarriage and the Law for their engagement with these ideas and their comments on these articles.

This invited contribution to a symposium on the multiple intersections of family law and constitutional law grapples with the emerging problems of jurisdictional competition and choice of law in interstate abortion situations in the wake of Dobbs v. Jackson Women’s Health Organization—as abortion-hostile states seek to impose restrictions beyond their borders and welcoming states seek to become havens for abortion patients, regardless of their domicile. Grounded in a conflict-of-laws perspective, the essay lays out the interstate abortion chaos invited by Dobbs and the threat to our federal system that it presents, given Congress’s failure to codify a national right to abortion in the Women’s Health Protection Act or other proposals. The essay then examines the promise, shortcomings, and uncertainties of relevant provisions of the U.S. Constitution as potential solutions to the problems. With no magic constitutional bullet available, new tools are needed to address this looming “war between the states.” The essay proceeds to propose one, borrowing a model from family law’s existing toolkit, specifically, the Parental Kidnapping Prevention Act (PKPA).Enacted under Congress’s power to implement the Full Faith and Credit Clause, the PKPA’s intervention is modest, and it walks the fine line that that clause requires—recognizing each state’s sovereignty while commanding respect for other states’ prerogatives, aspiring to achieve national unity and harmony. Accordingly, the PKPA does not address the merits of an underlying child custody controversy or impose substantive custody-law requirements on the states. Instead, it allocates authority over child custody matters among the states and then ensures respect elsewhere for such authority lawfully exercised. The recent enactment of the Respect for Marriage Act bodes well for this approach in a Congress that must bridge sharp divisions in order to legislate at all. It too allocates authority and ensures respect elsewhere, without codifying a right to celebrate same-sex and interracial marriages throughout the country.Of course, how to allocate authority over abortion presents vexing challenges. What concessions would be worth making to have the certain knowledge that abortion-friendly states really are safe havens? Even if Congress cannot codify reproductive rights, can a majority of the House and at least 60 members of the Senate fulfill their responsibility under the Full Faith and Credit Clause so that the “laboratory of the states” can survive as a single nation?

In challenging traditional stereotypes of female sexualities centered on passivity, subordination, harm, and repronormativity, proponents of sex-positive feminism criticize legal feminism generally for undervaluing women’s pleasure, which they celebrate. Yet these proponents often struggle with charting a supportive and affirmative course for law and legal institutions, which have long fostered sex negativity. Part I of this article identifies sex positivity as a thread that runs through multiple feminisms and that offers a potential answer to criticisms and problems. Along the way, this part demonstrates the importance of power and power disparities in sex-positive feminism and of the role of gender. Part II turns to the place of law and legal institutions in sex-positive feminism, juxtaposing prevailing critiques of law’s sex negativity with promising opportunities for change. Part III continues on this note of optimism, consulting popular culture for possibilities to support a more fully developed sex-positive and feminist legal regime.

This analysis contributes to an online symposium on Dov Fox’s book BIRTH RIGHTS AND WRONGS: HOW MEDICINE AND TECHNOLOGY ARE CHANGING REPRODUCTION AND THE LAW. Using eugenics and reproductive justice as points of departure, this review highlights both strengths and weaknesses in Fox’s approach.

This chapter of Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouche ed., 2020) reimagines the majority opinion in Dandridge v. Williams, 397 U.S. 471 (1970). The actual case rejected challenges under both the Social Security Act and the U.S. Constitution to Maryland’s maximum family grant regulation, which capped public assistance and effectively allocated fewer dollars to support each member of a large family than to each member of a small family. The feminist judgment invokes the “war on poverty,” the long history of both sex and race discrimination in the United States, the economic inequalities arising from such discrimination, and principles of reproductive justice to invalidate the maximum family grant regulation. In doing so, the new opinion recognizes a constitutional right to minimum welfare, consistent with a robust scholarly literature from the era when the Court decided the case. Professor Maya Manian’s commentary complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on what difference the reimagined outcome and reasoning could have made going forward.

Appearing as part of the WASHINGTON UNIVERSITY JOURNAL OF LAW and POLICY’s celebration of the sesquicentennial of the first women law students, this brief review critically examines FIRST: SANDRA DAY O’CONNOR, a biography by Evan Thomas. The review follows two themes highlighted by the book, intimacy and gender, and finds the author's treatment of the latter especially problematic. (A shorter version of the review appeared under the title How One Glass Ceiling Was Broken, COMMON READER (Nov. 20, 2019).

This conversational-style essay is an exchange among fourteen professors — representing thirteen universities across five countries — with experience teaching with feminist judgments. Feminist judgments are “shadow” court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases. This essay begins to explore the vast pedagogical potential of feminist judgments. The contributors to this conversation describe how they use feminist judgments in the classroom; how students have responded to the judgments; how the professors achieve specific learning objectives through teaching with feminist judgments; and how working with feminist judgments — whether studying them, writing them, or both — can help students excavate the multiple social, political, economic and even personal factors that influence the development of legal rules, structures, and institutions. The primary takeaway of the essay is that feminist judgments are a uniquely enriching pedagogical tool that can broaden the learning experience. Feminist judgments invite future lawyers, and indeed any reader, to re-imagine what the law is, what the law can be, and how to make the law more responsive to the needs of all people.

In the late 1960s courts began to use the irreparable harm standard in proceedings to enjoin teacher strikes, instead of issuing automatic injunctions based on the illegality of strikes by public sector employees. In analyzing such judicial applications of irreparable harm and analogous standards, this article identifies several problems — from inconsistency to frequent prolongation of strikes to disregard of educational consequences — and concludes with suggested alternatives more suited to the particular context and the distinctive impacts of teacher strikes.

Written in the immediate wake of the much-debated Baby M case, this review of Lori Andrews’s book, Between Strangers: Surrogate Mothers, Expectant Fathers and Brave New Babies (1989), emphasizes how telling the stories of participants can shape our views of novel and controversial reproductive arrangements.

This essay uses the lenses of history and feminism to examine American family law past, present and future. The analysis highlights how family law’s two central organizing constructs, marriage and gender, have long provided a powerful draw for feminist theorists, critics and reformers. Their engagement helped to bring about groundbreaking shifts, represented by seven distinct twentieth-century changes in family law: the recognition of a right to privacy or liberty protecting reproductive decisions, the application of equality principles to invalidate gender stereotypes and also to repudiate disadvantages imposed on nonmarital children, the advent of no-fault divorce, the rise of the partnership understanding of marriage and its economic consequences, the emergence of legal responses to domestic violence, and the acknowledgment of family relationships based on function despite the absence of formalities.These developments stand out both for transforming family law from its Blackstonian past to its second-wave or liberal-feminist present and for paving the way to marriage equality—a development scarcely imaginable less than fifty years ago. After considering each of these seven changes and explaining their specific relevance to marriage equality, the essay takes a more critical turn. It invokes newer feminist approaches to expose the limitations of the last century’s reforms and looks ahead toward the work to be done by feminists in forging a family law of the future.

A joint project with Barbara Flagg, this critique of Robert Goldstein’s book, Mother Love and Abortion: A Legal Interpretation (1988), examines the author’s use of ideas from the object-relations school of psychoanalysis to supplement mainstream theories of abortion freedom. While noting the book’s valuable contributions, including its effort to place the pregnant woman at the center of the analysis, the review raises questions that the author’s attachment-theory-based arguments fail to answer and cites the costs that his “mother-love” approach might well impose on women.

Scientific findings on brain development increasingly are influencing how we understand children’s social and emotional development and how we interpret their behavior. Such understandings and interpretations, in turn, can shape public policy and legal precedent, as shown by the U.S. Supreme Court’s recognition of constitutional limitations on criminal punishments imposed on young offenders. This essay introduces a transdisciplinary symposium that explores new learning about the negative impact of “early stressors” on brain development and the opportunities that such learning presents for law and policy reforms. The symposium, part of a Washington University initiative on Neuroscience and Society, builds on the influence that neuroscience has already exerted on criminal law and juvenile justice and examines both the promise and the challenges of attempting to replicate this relationship in other contexts. For example, one challenge emerges from American jurisprudence’s distinction between constitutional limits on government action (as in the juvenile justice cases) versus calls for government support in response to demonstrated individual and societal benefits (as in interventions to minimize early stressors). The symposium contributions reflect the diverse expertise of the authors—including law, medicine, neuroscience, psychology, economics, public health, and social work, as well as insights from those with on-the-ground experience in policy making and implementation. Thanks to the wide array of perspectives, the symposium presents a conversation not only about how neuroscience might influence law and policy but also about how neuroscientists can undertake research that would prove most useful in influencing law and policy. For the full symposium, entitled Bringing Science to Law and Policy, see volume 57 of the Washington University Journal of Law & Policy (available online).

This essay responds to Ann Laquer Estin’s Child Migrants and Child Welfare: Toward a Best Interests Approach. Writing before the tragic spectacle of parent-child separations on the U.S. southern border at the hands of the federal government during summer 2018, Estin’s analysis emerges as both prescient and acutely needed in its call for prioritizing family law’s familiar best interests principle in fashioning official responses to the arrival of unaccompanied child migrants in the United States. My response in no way disputes Estin’s argument in favor of child-centered immigration policies and their implementation. Rather, it explores whether the notoriously indeterminate best interests principle is up to the job. This indeterminacy, first identified in conventional child custody disputes, has also surfaced in the context of child migration, in which bias, political considerations, and the personal value judgments of decisionmakers can shape outcomes. To demonstrate this downside of the best interests principle, my response revisits two highly publicized controversies from the past, the cases of child migrants Walter Polovchak and Elian Gonzales, and examines contemporary contests that have arisen when young pregnant migrants have sought abortions and when LGBT families have sought to provide foster care for child migrants. Whether or not the best interests principle proves to be the most effective vehicle, Estin and I agree that conversations about reforming the legal treatment of children generally must include child migrants, who are often forgotten and especially vulnerable. Their current wellbeing and future lives, even more than others’, depend directly on law.

This essay, part of a collection written to celebrate the sesquicentennial of Washington University School of Law, seeks to revive an almost forgotten anniversary—the fiftieth year since the publication of Human Sexual Response by William Masters and Virginia Johnson, who did much of the early research for the book at Washington University. To the extent that the important story of their work survives, the credit belongs largely to a popular television series, Masters of Sex, not institutional recognition by the University that we argue should claim and celebrate them. The story of Human Sexual Response—as it happened at Washington University and as it has been portrayed on television—raises questions of gender, sexuality, taboo, human research ethics, scientific method, academic freedom, and complicated personal and professional relationships. We consider these questions as well as what the story of Human Sexual Response teaches us about opportunities, perils, and possibilities for continuing progress in sexuality studies. We note, on the one hand, how the Masters of Sex series seems to trivialize a significant chapter in Washington University’s history and the history of sex research. On the other hand, we acknowledge how the television series saved the Masters and Johnson legacy from near-fatal neglect. Accordingly, with an eye on the future, we examine the relationship between the narrative portrayed on the screen and the literal truth that inspired it, evaluating both what we have lost and what we have gained from having television tell (and partly fictionalize) this story.

Recent Supreme Court rulings on marriage equality and religious objections to contraception have obscured the legacy of Eisenstadt v. Baird, the 1972 case that promised to change the course of family law. In extending constitutional protection to unmarried persons’ access to birth control, Eisenstadt heralded a new family law that would be more inclusive, liberatory, sex-positive, and feminist than its predecessors. Although several forward-looking shifts in family law can trace their roots to this case and it lives on in today’s jurisprudence, Eisenstadt’s full transformative potential has been forgotten, if not co-opted, in service of a narrow and largely traditional agenda. This essay returns to Eisenstadt and its promise. The case offers an illuminating point of departure for examining family law because it defies the field’s traditional boundaries: Eisenstadt concerns sex, but has nothing to do with domesticity. It makes marriage beside the point, thus ignoring a central pillar of traditional family law. And while collectives — whether the couple, parents and children, or even communes and extended families — provide the typical focus of family law, Eisenstadt on its face emphasizes the individual. In recovering Eisenstadt’s legacy and exploring what it means for contemporary family law, this essay makes three contributions: First, it reveals how Eisenstadt’s mismatch with family law’s usual concerns helped revise the understanding of the field itself. Second, in examining both Eisenstadt’s promise for family law and the ways this promise has remained unfulfilled, the analysis develops a critical framework that considers, in turn, three axes that have shaped, and reshaped, the field: family, sex, and gender. Finally, the look back at Eisenstadt exposes fundamental contradictions that riddle family law today, while offering valuable insights about recent controversies, particularly cases on birth control access and the right to marry. As the analysis shows, Eisenstadt has survived recent retrenchments, but with its more expansive possibilities neutralized. Courts continue to cite it, but they fold it into a family law that — despite modernizing changes — remains stubbornly fixed on marriage and other traditional elements that Eisenstadt had boldly challenged.

This Article, part of a colloquium on the Supreme Court’s 2015 case Obergefell v. Hodges, which guaranteed a right of same-sex couples to marry, makes two principal contributions to our understanding of constitutional “liberty,” both with significance for family law. The first contribution is analytic. This Article joins the debate among the Obergefell Justices, including the four dissenters, about whether Fourteenth Amendment liberty only protects against interference by the state or whether it can also compel affirmative support or government action. On close inspection, this debate not only obscures complexities that defy a clear-cut binary but also camouflages diverse conceptions of liberty found in the majority opinion itself. Analysis of four different readings of “liberty” in Obergefell’s majority opinion reveals that marriage — the substantive issue in the case — and its distinctive features account for much of this messiness and multiplicity. This Article also makes a theoretical contribution by exploring the relationship between constitutional law and family law that the Court’s liberty rulings have forged. The usual approach emphasizes the impact of constitutional doctrine on family law, specifically how the Court’s liberty rulings have required substantive changes in laws governing the family. By contrast, this Article turns to the unexamined mirror image, exposing and theorizing how family law principles, assumptions, and values have infiltrated and shaped constitutional doctrine, including doctrine disputed in Obergefell. A survey of the constitutional case law limiting obligations owed by the state reveals that these precedents are “all in the family,” in the sense that they all raise issues of concern to family law. These cases, along with those applying the Constitution to expand access to marriage and divorce, suggest the influence of family law’s policy of identifying private sources of support for dependent members of society. Had the Obergefell majority explicitly acknowledged and embraced this family law policy in recognizing a constitutional right to marry for same-sex couples, it could have avoided some of the criticism and confusion that the opinion has sparked.

This paper explores four works of contemporary fiction to illuminate formal and informal regulation of sex. The paper’s co-authors frame analysis with the story of their creation of a transdisciplinary course, entitled “Regulating Sex: Historical and Cultural Encounters,” in which students mined literature for social critique, became immersed in the study of law and its limits, and developed increased sensitivity to power, its uses, and abuses. The paper demonstrates the value theoretically and pedagogically of third-wave feminisms, wild zones, and contact zones as analytic constructs and contends that including sex and sexualities in conversations transforms personal experience, education, society, and culture, including law.