DEVELOPMENTS IN THE LAW THE LAW OF MARRIAGE AND FAMILY法律英语论文.doc

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1、 江西财经大学 法律英语论文 系别: 2011级法律硕士 学号： 姓名： Time of Request: monday, May 21, 2012 21:35:40 ESTClient ID/Project Name: Number of Lines: 235Job Number: 1845:348741563Research InformationService: Terms and Connectors SearchPrint Request: Current Document: Source: US Law Reviews and Journals, CombinedSearch Te

2、rms: SUMMARY(civil law)Send to: UNIVERSITY, JIANGXI JIANGXI UNIVERSITY OF FINANCE & ECONOMIC 1 CHANGAN RD 12/F116 Harv. L. Rev. 1996, * Copyright (c) 2003 The Harvard Law Review AssociationHarvard Law ReviewMay, 2003116 Harv. L. Rev. 1996LENGTH: 2608 wordsDEVELOPMENTS IN THE LAW-:THE LAW OF MARRIAGE

3、 AND FAMILY: I. Introduction: Nuclear NonproliferationLEXISNEXIS SUMMARY:. The Mychal Judge Police and Fire Chaplains Public Safety Officers Benefit Act of 2002 - named in honor of Rev. Mychal Judge, the New York Police Department chaplain who was the first official victim of the September 11 terror

4、ist attacks - offers no indication on its face that it is the first federal law to extend government benefits to same-sex couples. . The Mychal Judge Act notwithstanding , family law is almost exclusively in the custody of the states, and the unique demographic and cultural circumstances of each sta

5、te have engendered considerable variation in the law governing marriage and divorce, parenthood and child support, and other aspects of family life. . Indeed, an American household picked at random today is more likely to contain a person living alone than a nuclear family. . Moreover, more than two

6、-fifths of unmarried cohabiting couples in 2000 lived with minor children - only slightly less than the proportion of married couples with minor children (46%). . If Parts II through IV ask how the law creates and defines families, Parts V and VI ask how the law breaks them apart. . The result, this

7、 Part concludes, is uncertainty regarding whether the UFC model, as implemented, fulfills its commitment to family integrity. . 文章摘要：2002年Mychal福利法案，即法警和消防牧师公共安全官员福利法案，该法是为了纪念Rev. Mychal 而命名的，Rev. Mychal 是纽约警察局的牧师，他也是9月11日恐怖袭击事件的第一位官方公布的受害者。该法案在毫无征兆的情况，联邦法律首次将政府公共福利延扩展至同性恋夫妇。尽管Mychal福利法有其独特之处，但美国家庭法

8、却深深地扎根于美国各大州，具有浓郁的州特色，它深受各州的人口、文化环境的影响，而正是各州人口、文化的差异性，才导致美国家庭法对结婚、离婚、亲权关系、子女抚养及其他家庭生活等方面规定的不同。事实上，现在在美国随机抽选一个家庭，挑到是独居家庭的概率要大于选出是核心家庭的概率。 .此外，在2000年，超过40%的未婚同居夫妇与未成年子女居住 ，这比已婚夫妇与未成年子女（46）的比例略低。 .如果说.第二至第四部分是法律从如何建立和界定家庭作出规定，第五和第六部分法律从如何界定家庭离异作出规定，那么本部分得出的结论是，是否将UFC的模式付诸实施这种不确定性研究却是致力于保持家庭的完整性。TEXT:*1

9、999On June 24, 2002, the White House acknowledged in a one-sentence e-mail that President Bush had signed into law a bill allowing members of same-sex couples to receive federal death benefits. 1 The Mychal Judge Police and Fire Chaplains Public Safety Officers Benefit Act of 2002 2 - named in honor

10、 of Rev. Mychal Judge, the New York Police Department chaplain who was the first official victim of the September 11 terrorist attacks - offers no indication on its face that it is the first federal law to extend government benefits to same-sex couples. 3 The Act contains no reference to sexual orie

11、ntation; instead, it simply extends eligibility for the $ 250,000 federal benefit for survivors of public safety officers killed in the line of duty to include any individual designated by such officer as beneficiary under such officers most recently executed life insurance policy. 4 The House Commi

12、ttee Report similarly avoids the issue, observing simply that prior law limited beneficiaries to the spouse, child, or parent of the decedent. 5 Conservative critics, however, perceived a statement implicit in the Mychal Judge Act: Homosexual folks see this as a first step toward recognizing homosex

13、uality on the same level as marriage, and thats what it will be used for. 6The Mychal Judge Act does not, of course, effect federal recognition of same-sex marriage. It is, however, one of the myriad ways in which American law increasingly accommodates the variant modes of American family life. Writ

14、ing for the plurality in the Supreme Courts 2000 decision in Troxel v. Granville, 7 Justice OConnor observed - in a quip now popular among family law commentators 8 - that the demographic changes of the past century make it difficult to speak of *2000 an average American family. 9 So, too, have the

15、resulting legal changes made it difficult to speak of a coherent American family law. The Mychal Judge Act notwithstanding, family law is almost exclusively in the custody of the states, 10 and the unique demographic and cultural circumstances of each state have engendered considerable variation in

16、the law governing marriage and divorce, parenthood and child support, and other aspects of family life. This variation - and the concomitant lack of clarity and predictability for litigants - eventually prompted the American Law Institute (ALI) to make its first foray into the field of family law, w

17、ith the goal of defining a legal framework that can accommodate the different choices people make and the different expectations they bring to their family relationships.3 11 The ALI published its Principles of the Law of Family Dissolution in 2002. 12 Perhaps inevitably, ALI Principles has already

18、drawn fire for failing to reflect the full range of perspectives on the American family. 13In this Development, the Harvard Law Review assesses the present gap - to paraphrase Dean Pound - between the family in casebooks and the family in action. 14 The purpose is to step beyond reactions to specifi

19、c cases or legislation and to synthesize the recent innovations, both primary and secondary, in the law of marriage and family. The choice of subtopics accordingly reflects two principal questions. First, where does American family law best reflect, and where does it most clearly abandon, modern Ame

20、rican family practice? Second, what legitimate interests do states possess in the forms of American families? The answers to these questions will drive family law reform for years to come.*2001A. The American Family in PracticeThe 2000 Census exposed, in empirical splendor, the divergent forms of th

21、e modern American family. Traditional family structures are less prevalent now than ever before in U.S. history. The nuclear family 15 - still the archetype in American law and politics 16 - for the first time describes less than one-quarter of all U.S. households. 17 Indeed, an American household p

22、icked at random today is more likely to contain a person living alone than a nuclear family. 18 At the same time, single parents now constitute nearly one-third of all households with children. 19 Local conditions exaggerate these effects: in Washington, D.C., for example, single mothers with childr

23、en now outnumber married couples with children. 20The rates of change, too, are surprising: since 1990, the number of nonfamily households grew at more than twice the rate of family *2002 households. 21 While the proportion of households comprising married couples without children has remained fairl

24、y constant for decades, 22 the number of unmarried-partner households rose sharply from 3.2 million in 1990 to 5.5 million, or 5.2% of all households, in 2000. 23 Moreover, more than two-fifths of unmarried cohabiting couples in 2000 lived with minor children - only slightly less than the proportion

25、 of married couples with minor children (46%). 24These data admit of no tidy summary; indeed, their untidiness is the point. As this Development illustrates, the Mychal Judge Act is far from the only instance in which the law has responded, however grudgingly, to the disparate forms of American fami

26、ly life. Yet what also emerges from the Parts that follow is that the law - federal and state, constitutional and statutory, procedural and substantive - continues to conceive of family status in a way that Americans, in practice, do not.B. Overview: Developments in the LawPart II 25 kicks off this

27、Development by examining the most controversial of the threshold qualifications for legal marriage in America: the heterosexuality requirement. Locating the American same-sex marriage debate in the context of larger international developments, this Part both draws lessons from the European experienc

28、e and identifies trends uniquely American - for example, the unusual willingness of American courts to permit same-sex couples to adopt children and form families, notwithstanding restrictions on same-sex marriage. After evaluating the disparate rationales for same-sex unions articulated by courts i

29、n Hawaii, Alaska, and Vermont, Part II concludes with an assessment of the opportunities and obstacles facing advocates of same-sex unions across the United States.Because it is the prerogative of individual states to control access to family status within their borders, however, recognition of same

30、-sex marriage in one state does not automatically expand the marital privilege elsewhere. Part III 26 takes up the narrow but important question whether the federal Constitution imposes any obligation on states to *2003 recognize same-sex marriages legally celebrated in other states. Surveying the j

31、urisprudence of the Full Faith and Credit Clause and the Due Process Clause as constitutional constraints on state choice-of-law practices, Part III dissects the circumstances under which marriage choice-of-law issues could arise and assesses the most plausible cases for mandatory recognition of out

32、-of-state marriages, concluding that the Constitution likely places no affirmative duty on states to recognize nontraditional marriages permitted by other states.Part IV 27 shifts the lens from marriage to parenthood, examining how the changing realities of the American family 28 have altered tradit

33、ional legal rules governing parental status and parental rights. It highlights three interrelated developments - the erosion of the presumption that parents always act in the best interests of their children, the erosion of the nuclear model of the family in adjudicating parental rights, and the col

34、lective failure of courts and legislatures to reconcile traditional assumptions about parenthood with new reproductive technologies - and suggests that the law of parenthood, like the American family itself, is in the midst of a remarkable, if painful, turn away from tradition.If Parts II through IV

35、 ask how the law creates and defines families, Parts V and VI ask how the law breaks them apart. Part V 29 uses the law of divorce to examine a basic and growing tension at the heart of family law: the conflicting conceptions of marriage as public status, marriage as contract, and marriage as partne

36、rship. Divorce law in every state reflects each of these notions to some degree. This Part draws out the conflict among these ideas by tracing developments in the law of antenuptial agreements, including innovations introduced in ALI Principles, and comparing the norms embodied in those developments

37、 to those embodied in widely accepted principles of equitable distribution of marital property upon divorce.Finally, Part VI 30 focuses on the unified family court (UFC) movement and, in particular, its approach to the ultimate question in child protection cases: whether and when to dissolve the par

38、ent-child relationship. Endorsed by the American Bar Association and increasingly adopted in jurisdictions around the country, the UFC model features a hands-on, one family, one judge approach that is designed to facilitate the long-term revitalization of families in crisis. Yet UFCs are nevertheles

39、s courts of law and must therefore enforce federal child protection legislation that prioritizes placing children in stable homes over *2004 sustained efforts to preserve existing families. 31 The result, this Part concludes, is uncertainty regarding whether the UFC model, as implemented, fulfills i

40、ts commitment to family integrity.Legal Topics: For related research and practice materials, see the following legal topics:Family Law Cohabitation Domestic Partners ChildrenFamily Law Marriage Validity Same-Sex MarriagesInsurance Law Life Insurance Beneficiaries General OverviewFOOTNOTES:n1. Mike A

41、llen, Law Extends Benefits to Same-Sex Couples: Firefighters, Officers Killed on Duty Covered, Wash. Post, June 26, 2002, at A8. n2. Pub. L. No. 107-196, 116 Stat. 719 (amending 42 U.S.C.A. 3796, 3796b (West 1994 & Supp. 2002). n3. See Allen, supra note 1 (noting that domestic partners are not inclu

42、ded in other federal death benefits). n4. 2(b)(4), 116 Stat. at 719 (amending 42 U.S.C.A. 3796(a) (West 1994 & Supp. 2002). The Act retains priority for spouses and children over other beneficiaries, as the life insurance beneficiary provision kicks in only if the decedent has no surviving spouse or

43、 child. Id. n5. H.R. Rep. No. 107-384, at 3 (2002). n6. Allen, supra note 1 (quoting Rev. Lou Sheldon, chairman of the Traditional Values Coalition). The White House disclaimed any such effect, stating that the Act simply honors the wishes of victims. A White House spokesman noted pointedly that the

44、 Act is not a determination of legal status. Id. n7. 530 U.S. 57 (2000). n8. February 24, 2003 search in Westlaws Journals and Law Reviews (JLR) database yielded twenty-two articles quoting Troxel for the phrase difficult to speak of an average American family. n9. Troxel, 530 U.S. at 63. n10. See,

45、e.g., Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (holding that federal courts lack jurisdiction to issue decrees pertaining to divorce, alimony, or child custody); Sosna v. Iowa, 419 U.S. 393, 404 (1975) (describing domestic relations as an area that has long been regarded as a virtually excl

46、usive province of the States). Of course, some of the most cherished rights in family law flow from the federal Constitution. See, e.g., Troxel, 530 U.S. at 65 (observing that the interest of parents in the care, custody, and control of their children . is perhaps the oldest of the fundamental liber

47、ty interests recognized by this Court). n11. Lance Liebman, Directors Foreword to Am. Law Inst., Principles of the Law of Family Dissolution: Analysis and Recommendations, at xv, xv (2002) hereinafter ALI Principles. n12. ALI Principles, supra note 11. n13. See, e.g., David Westfall, Forcing Inciden

48、ts of Marriage on Unmarried Cohabitants: The American Law Institutes Principles of Family Dissolution, 76 Notre Dame L. Rev. 1467, 1469 (2001) (stating that ALI Principles may not reflect the views of even a substantial minority of the ALI membership). n14. Cf. Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12 (1910). n15. Anthropologist George Murdock coined the term nuclear family in 1949 to describe a married man and woman living together with their offspring. See George Peter Murdock, Social