My grades for Third Year are sitting in my mailbox, have been since sometime yesterday morning at least. I walked right by the post office on my way home yesterday afternoon, drove by it later, and today I ignored it altogether.
I know why-I expect to be disappointed, and I'd rather delay that letdown, enjoy the self-deception in which I am indulging for just a little longer. I feel slightly foolish about my behavior but not enough to go to the post office.
Sunday, May 26, 2013
opprobrium or approbation
My faith in the ability of humans to do any sustained good thing sinks ever lower. Perhaps the key is the person who has found peace in living life as they find it, rather than trying to fix things. To me that looks more like the street person sitting content with a spot of sunshine and their meager belongings than most any person that society approves. The choices become ever clearer and more limited.
Thursday, May 23, 2013
genocide, slavery and Solomon
"Humanity must bewail the course which is pursued, whatever may be the decision of policy." John Marshall speaking of the Cherokee nation dilemma, approximately 1830.
Once a societal wrong has been committed and sustained, within less than a generation there are so many countervailing interests and good faith reliance on the status quo that unwinding the ball of yarn becomes a case not dissimilar to Solomon's baby.
Once a societal wrong has been committed and sustained, within less than a generation there are so many countervailing interests and good faith reliance on the status quo that unwinding the ball of yarn becomes a case not dissimilar to Solomon's baby.
Wednesday, May 22, 2013
disheveled but still standing
Like most worthy endeavors, this law school journey is more of a slog than a Hollywood moment, or even a series of those moments. At any given time, we're more likely to resemble a person on Saturday morning after a hard Friday night, hair mussed, in sweats that should have been washed a few wearings ago, and bad breath- not to say we lack in the personal hygiene area. Rather I'm saying we are mentally and socially, and sometimes emotionally in that place. Somehow we move the ball forward but it's hard to see if you are watching, and sometimes we lose ground. But with enough time elapsed I can now look over my shoulder and see that where we began is far off in the distance.
I was told that we would learn a new way to think, and it appears we have to some extent. Certainly we speak a new language and find minute legal questions fascinating enough to carry an evening's conversation. Which makes us annoying to normal people, of course.
Friday, May 17, 2013
alone with my mind
I'm an excitable sort of person, and sometimes my passion is overpowering and off-putting to others. This remains true in law classes, where I forget that just because I want to argue the finer points of the interrelationship between risk allocation and standard of evidence does not mean my classmates do. I realize more all the time that I sometimes come across like a child in a tantrum, so focused on the thing at hand as to forget that I shall have to live with those around me after this foment has passed. I so enjoy the engagement that it's hard to remember that others do not, in fact they find it unpleasant.
I also think that having had a few years of law school now, I feel more confident in both my right to state my opinion and my right to be as wrong as I care to be.
These make for a dangerous cocktail, one that I would be wise to consider carefully lest I alienate my fellow sojourners. I want to play with this law, to manipulate it with my hands, to look at it this way and that, and to fling mud about in the process. I miss the days when Peter, Jean and Abigail were there to do this thing with me but we have all gone our separate ways.
I also think that having had a few years of law school now, I feel more confident in both my right to state my opinion and my right to be as wrong as I care to be.
These make for a dangerous cocktail, one that I would be wise to consider carefully lest I alienate my fellow sojourners. I want to play with this law, to manipulate it with my hands, to look at it this way and that, and to fling mud about in the process. I miss the days when Peter, Jean and Abigail were there to do this thing with me but we have all gone our separate ways.
mirror, mirror on the wall
Albert Memmi’s definition of a racist attitude:
1. Stressing the real or imaginary differences between racist and victim
2. Assigning values to the differences to the advantage of the racist and the detriment of the victim
3. Trying to make the values absolutes by generalizing from them and claiming that they are final
4. Justifying any present or possible aggression or privilege
(Attempt at a Definition in Dominated Man: Notes Toward a Portrait 185-95 (1968))
This semester isn't doing much for my view of humanity, in fact my pollyanna attitude is taking quite a beating. Who among us can say we haven't practiced these steps to justify behavior ranging from disdain all the way to true harm against another?
I think I need an offset, perhaps a feel-good movie to balance the dark reflection from this cesspool of history wherein I see myself.
1. Stressing the real or imaginary differences between racist and victim
2. Assigning values to the differences to the advantage of the racist and the detriment of the victim
3. Trying to make the values absolutes by generalizing from them and claiming that they are final
4. Justifying any present or possible aggression or privilege
(Attempt at a Definition in Dominated Man: Notes Toward a Portrait 185-95 (1968))
This semester isn't doing much for my view of humanity, in fact my pollyanna attitude is taking quite a beating. Who among us can say we haven't practiced these steps to justify behavior ranging from disdain all the way to true harm against another?
I think I need an offset, perhaps a feel-good movie to balance the dark reflection from this cesspool of history wherein I see myself.
Thursday, May 16, 2013
A rotting foundation
It is challenging to see how humanity can ever rise above a seemingly universal greed that nearly always surmounts any good impulse that may arise. History tells a story of inconsistency and dismal failure.
For my Federal Indian Law class, I am reading about things that perhaps I learned in middle school or high school. But if I did, it long ago fell off the wagon in all the shaking and moving of life. And I am certain that the version I learned then was a little more skewed to show those of European descent in a favorable light.
What follows is an attempt at a synopsis of what I learned this week. Much of it comes from the textbook, Cases and Materials on Federal Indian Law, Getches, Wilkinson, Williams and Fletcher, and from our class discussion on the topic. I claim no original thought on this matter. I find it unsettling to re-think both some of our history, and how the law functions. I had thought, had hoped, that it provided justice for the oppressed, but it is hard to maintain that belief in the face of all of this. Because what we do to or for the least powerful is the real indicator of the rule of law, and the opportunity for justice.
The basis for U.S. Indian law as administered even today reaches far back in history. It perhaps originated in the Catholic European nations' view of the Pope as divinely designated shepherd of the universal flock of Christ. The Pontiff was vested with supreme spiritual authority over the souls of all humankind. The Pope’s universal authority was also political.
This concept was the basis for the Crusades in 11th-13th centuries- there was a righteous authority to conquer the lands and peoples of the infidels for 'Christ' and to spread the gospel.
The Doctrine of Discovery is European in origin- the discovering sovereign had the right to 'discovered' land superior to all other ‘Christian nations’ and superior to current occupiers, so long as the land was not already discovered and possessed by another Christian European nation. Then again, this conquest rule of law was not new with Europe. In Anabasis, Xenophon talks about the law of the conqueror swallowing up the law of the conquered, written around 400 B.C. One can find many traces of the concept throughout history. While it doesn't justify anything done to the Indians of the U.S., it perhaps helps to put it in historical context.
Catholic legal scholars' canon-law writings provided a basis for the Christian sovereign's right to punish and take property of any infidels.
In a bull issued by the Pope for the King of Portugal in 1436, the King was given the right directly from God to colonize Canary Islands and all of Africa, by whatever means was necessary.
Later Spain obtained a series of bulls granting the Americas/‘Indies’ upon discovery by its agent, Columbus. Spain's legal minds had come up with the Requerimiento, which had to be read aloud to any group of Indians before any hostilities could legally be commenced (written in 1513). Only the Indians didn't speak the European languages, and there was no provision for translation. The Requerimiento provided that God had given charge of the whole human race to the Pope, who had donated their lands to the King and Queen of Spain. The Indians were asked to ponder and acknowledge this higher power, and consent to be preached to. If, however, they denied this, or delayed in responding, God and the Church approved of war-making by the Christian nations, enslaving the Indians, taking away their goods, and doing all the harm and damage that the Spaniards could.
Incredibly, the speaking of this writing gave authority then to proceed as desired to take from the Indians their land, their freedom, and their lives, with the blessing of the Most High.
Franciscus de Victoria (1480-1546) would at first reading appear to be a voice standing out against this taking in the name of God. In On the Indians Lately Discovered (1532), he discussed the applicable international law, and provided three arguments later included in the European Law of Nations.
1. The inhabitants of the Americas possessed natural legal rights as free and rational people
2. Any Spanish claims to title to the Americas on the basis of ‘discovery’ or papal grant were illegitimate and could not affect the inherent rights of the Indian inhabitants
3. Transgressions of the universally binding norms of the Law of Nations by the Indians might serve to justify a Christian nation’s conquest and colonial empire in the Americas
It was his assertion that Indians were rational beings and therefore possessed the same natural rights as Christians. He said that the law could not bind those not previously subject to it and any Spanish claims to title to the Americas on the basis of ‘discovery’ or papal grant were illegitimate and could not effect the inherent rights of the Indian inhabitants.
As to the land, he said the Indians could not be deprived of their property without just cause. While what belongs to nobody belongs to the first occupant/discoverer, the Indians were true owners of this land as present occupiers.
Alas, he did not stop there. While he claimed that the Pope has no temporal power over aborigines or other unbelievers, under argument #3, he found an exception to the universal natural laws in #1 and 2. Transgressions of the universally binding norms of the Law of Nations by the Indians might serve to justify a Christian nation’s conquest and colonial empire in the Americas. This then was the just cause, and it undid entirely the precepts in his first two arguments.
Our legal concept that the Federal Government has a guardianship over Indians in the U.S. stems from this theory. Victoria said that since Indians could not be expected to understand fully the rules of the European Law of Nations, they should be placed under guardianship.
But deciding for someone else what is good for them is thin veneer for abuse of power-illegitimate power most often. The concept of guardianship allowed for- no, demanded ‘brotherly correction’ – Indian princes had no legal right to prevent the preaching of the gospel, and to deny this gospel would provide legal justification for seizing of lands and setting up new lords.
Edward Coke wrote in Calvin’s Case about the English King’s right of conquest in Christian vs non-Christian territory:
Infidels are in law perpetual enemies
Law presumes not that they will be converted
There is perpetual hostility between infidel and Christian, no peace
Pagan/infidel cannot therefore maintain an action in King’s courts- no recourse, no justice available to an infidel
If the King takes infidel’s land by conquest
The laws of the infidel are abrogated (and their title to lands)
Because they are not only against law of God but against law of nature
How would the Indians be expected to know European/Christian norms? More to the point, who is to decide what are the universally binding norms? Religion was just the convenient cloak of justification for greed/ land grabs. Frankly, there had to be some mechanism for acknowledging title in order to extinguish it. So the legal fiction that was set up to justify the actions of the European settlors loses even its veneer of being motivated by a sense of fairness. They thought of the need to be able to devise and convey land with clear title, and therefore sought to lay the foundation on the blood and betrayal of those who occupied the land they desired.
When I hear people talk about the U.S. as a Christian nation, it makes me anxious, as I contemplate what has been done in the name of Christianity, or any other religion. I knew of the Crusades, of course, but they are so remote in time, and surely couldn't take place today. But it seems that evil is perpetuated continually, no less the evil for its being cloaked in precedent and guardianship. I can better see now the evil done in the name of the Lord, and given the historical bent of humans to repeat the cycle, I worry at any intrusion on my right to be an infidel.
Justice or the illusion of justice?
For my Federal Indian Law class, I am reading about things that perhaps I learned in middle school or high school. But if I did, it long ago fell off the wagon in all the shaking and moving of life. And I am certain that the version I learned then was a little more skewed to show those of European descent in a favorable light.
What follows is an attempt at a synopsis of what I learned this week. Much of it comes from the textbook, Cases and Materials on Federal Indian Law, Getches, Wilkinson, Williams and Fletcher, and from our class discussion on the topic. I claim no original thought on this matter. I find it unsettling to re-think both some of our history, and how the law functions. I had thought, had hoped, that it provided justice for the oppressed, but it is hard to maintain that belief in the face of all of this. Because what we do to or for the least powerful is the real indicator of the rule of law, and the opportunity for justice.
The basis for U.S. Indian law as administered even today reaches far back in history. It perhaps originated in the Catholic European nations' view of the Pope as divinely designated shepherd of the universal flock of Christ. The Pontiff was vested with supreme spiritual authority over the souls of all humankind. The Pope’s universal authority was also political.
This concept was the basis for the Crusades in 11th-13th centuries- there was a righteous authority to conquer the lands and peoples of the infidels for 'Christ' and to spread the gospel.
The Doctrine of Discovery is European in origin- the discovering sovereign had the right to 'discovered' land superior to all other ‘Christian nations’ and superior to current occupiers, so long as the land was not already discovered and possessed by another Christian European nation. Then again, this conquest rule of law was not new with Europe. In Anabasis, Xenophon talks about the law of the conqueror swallowing up the law of the conquered, written around 400 B.C. One can find many traces of the concept throughout history. While it doesn't justify anything done to the Indians of the U.S., it perhaps helps to put it in historical context.
Catholic legal scholars' canon-law writings provided a basis for the Christian sovereign's right to punish and take property of any infidels.
In a bull issued by the Pope for the King of Portugal in 1436, the King was given the right directly from God to colonize Canary Islands and all of Africa, by whatever means was necessary.
Later Spain obtained a series of bulls granting the Americas/‘Indies’ upon discovery by its agent, Columbus. Spain's legal minds had come up with the Requerimiento, which had to be read aloud to any group of Indians before any hostilities could legally be commenced (written in 1513). Only the Indians didn't speak the European languages, and there was no provision for translation. The Requerimiento provided that God had given charge of the whole human race to the Pope, who had donated their lands to the King and Queen of Spain. The Indians were asked to ponder and acknowledge this higher power, and consent to be preached to. If, however, they denied this, or delayed in responding, God and the Church approved of war-making by the Christian nations, enslaving the Indians, taking away their goods, and doing all the harm and damage that the Spaniards could.
Incredibly, the speaking of this writing gave authority then to proceed as desired to take from the Indians their land, their freedom, and their lives, with the blessing of the Most High.
Franciscus de Victoria (1480-1546) would at first reading appear to be a voice standing out against this taking in the name of God. In On the Indians Lately Discovered (1532), he discussed the applicable international law, and provided three arguments later included in the European Law of Nations.
1. The inhabitants of the Americas possessed natural legal rights as free and rational people
2. Any Spanish claims to title to the Americas on the basis of ‘discovery’ or papal grant were illegitimate and could not affect the inherent rights of the Indian inhabitants
3. Transgressions of the universally binding norms of the Law of Nations by the Indians might serve to justify a Christian nation’s conquest and colonial empire in the Americas
It was his assertion that Indians were rational beings and therefore possessed the same natural rights as Christians. He said that the law could not bind those not previously subject to it and any Spanish claims to title to the Americas on the basis of ‘discovery’ or papal grant were illegitimate and could not effect the inherent rights of the Indian inhabitants.
As to the land, he said the Indians could not be deprived of their property without just cause. While what belongs to nobody belongs to the first occupant/discoverer, the Indians were true owners of this land as present occupiers.
Alas, he did not stop there. While he claimed that the Pope has no temporal power over aborigines or other unbelievers, under argument #3, he found an exception to the universal natural laws in #1 and 2. Transgressions of the universally binding norms of the Law of Nations by the Indians might serve to justify a Christian nation’s conquest and colonial empire in the Americas. This then was the just cause, and it undid entirely the precepts in his first two arguments.
Our legal concept that the Federal Government has a guardianship over Indians in the U.S. stems from this theory. Victoria said that since Indians could not be expected to understand fully the rules of the European Law of Nations, they should be placed under guardianship.
But deciding for someone else what is good for them is thin veneer for abuse of power-illegitimate power most often. The concept of guardianship allowed for- no, demanded ‘brotherly correction’ – Indian princes had no legal right to prevent the preaching of the gospel, and to deny this gospel would provide legal justification for seizing of lands and setting up new lords.
Edward Coke wrote in Calvin’s Case about the English King’s right of conquest in Christian vs non-Christian territory:
Infidels are in law perpetual enemies
Law presumes not that they will be converted
There is perpetual hostility between infidel and Christian, no peace
Pagan/infidel cannot therefore maintain an action in King’s courts- no recourse, no justice available to an infidel
If the King takes infidel’s land by conquest
The laws of the infidel are abrogated (and their title to lands)
Because they are not only against law of God but against law of nature
How would the Indians be expected to know European/Christian norms? More to the point, who is to decide what are the universally binding norms? Religion was just the convenient cloak of justification for greed/ land grabs. Frankly, there had to be some mechanism for acknowledging title in order to extinguish it. So the legal fiction that was set up to justify the actions of the European settlors loses even its veneer of being motivated by a sense of fairness. They thought of the need to be able to devise and convey land with clear title, and therefore sought to lay the foundation on the blood and betrayal of those who occupied the land they desired.
When I hear people talk about the U.S. as a Christian nation, it makes me anxious, as I contemplate what has been done in the name of Christianity, or any other religion. I knew of the Crusades, of course, but they are so remote in time, and surely couldn't take place today. But it seems that evil is perpetuated continually, no less the evil for its being cloaked in precedent and guardianship. I can better see now the evil done in the name of the Lord, and given the historical bent of humans to repeat the cycle, I worry at any intrusion on my right to be an infidel.
Justice or the illusion of justice?
this sysiphean task
Clausewitz wrote that war is politics by other means (On War, 1873).
Michel Foucault added this twist: Power is war. And while just saying it doesn't make it true, I would suggest that this is true even if it is benevolent exercise of power. The exertion of my power to effect changes necessarily imposes those changes on another with or without their consent. On some level, one can see that as warfare.
When I use non-violent means to exercise my power, one could call that politics. If politics is the exercise of power, is not politics warfare too? On a continuum of possible acts of war, political negotiations move toward war as they break down. However, as Foucault says, while political power may bring an end to war, the cessation of warfare does not neutralize the disequilibrium revealed in the final battle of war. He argues that the relations of power in our society are established in the moment of decisive battle, and that then sets the stage for the parties' relations for some time after.
Therefore, he says the role of political power is to reinscribe the relation between the once-warring parties, through unspoken warfare: in social institutions, economic inequalities, in language, in the bodies of the parties. (Foucault, Two Lectures in Power/Knowledge 90, 1980)
But this is a dismal point of view, especially if accurate. What meaning then when the rich and powerful speak of doing good? What does this say about the lofty goal of ending poverty, of providing equal opportunities to the disadvantaged, to give means to raise oneself up? Is this just a token effort to assuage a conscience, to keep up appearances, to make oneself a charitable being in the eyes of others? Is it impossible ever for a group of humans to achieve some gestalt for more than the briefest of moments?
I've heard it said that where there are 3 or more people gathered, there are politics. This means there is warfare on some level as well. There is a power balancing, or an out-and-out struggle for it, and this is both politics, and a kind of warfare.
Why then do we try to get it right? It seems a Sysiphean task after all.
Michel Foucault added this twist: Power is war. And while just saying it doesn't make it true, I would suggest that this is true even if it is benevolent exercise of power. The exertion of my power to effect changes necessarily imposes those changes on another with or without their consent. On some level, one can see that as warfare.
When I use non-violent means to exercise my power, one could call that politics. If politics is the exercise of power, is not politics warfare too? On a continuum of possible acts of war, political negotiations move toward war as they break down. However, as Foucault says, while political power may bring an end to war, the cessation of warfare does not neutralize the disequilibrium revealed in the final battle of war. He argues that the relations of power in our society are established in the moment of decisive battle, and that then sets the stage for the parties' relations for some time after.
Therefore, he says the role of political power is to reinscribe the relation between the once-warring parties, through unspoken warfare: in social institutions, economic inequalities, in language, in the bodies of the parties. (Foucault, Two Lectures in Power/Knowledge 90, 1980)
But this is a dismal point of view, especially if accurate. What meaning then when the rich and powerful speak of doing good? What does this say about the lofty goal of ending poverty, of providing equal opportunities to the disadvantaged, to give means to raise oneself up? Is this just a token effort to assuage a conscience, to keep up appearances, to make oneself a charitable being in the eyes of others? Is it impossible ever for a group of humans to achieve some gestalt for more than the briefest of moments?
I've heard it said that where there are 3 or more people gathered, there are politics. This means there is warfare on some level as well. There is a power balancing, or an out-and-out struggle for it, and this is both politics, and a kind of warfare.
Why then do we try to get it right? It seems a Sysiphean task after all.
Tuesday, May 14, 2013
this feel-good buzz
The after class buzz that won't let me just go home and go to bed, even though I know I have to get up early for work, it's almost like an electric current running through me. That is a part of law school that I treasure. The intellectual stimulation, the challenge, the debate, the discussion of the case, the underlying law, the logic, or at least the search for it-all of it. Love it. And I'll miss it when it's done, I know. One of the reasons I should have gone to law school when I was a newly minted college graduate, and yet one of the reasons I am getting so much more out of law school now than I would have then.
There is a maturing of the intellect that while it may impede my ability to memorize and recite, it enhances and enriches the understanding, the adoption and assimilation of the new idea.
I will never get over this love of learning, and I am grateful for that.
There is a maturing of the intellect that while it may impede my ability to memorize and recite, it enhances and enriches the understanding, the adoption and assimilation of the new idea.
I will never get over this love of learning, and I am grateful for that.
Monday, May 13, 2013
this baggage that I lug around
"The first thing which I recommend is to burn the wagons we have got, so that we may be free to march wherever the army needs, and not, practically, make our baggage train our general. And, next, we should throw our tents into the bonfire also: for these again are only a trouble to carry, and do not contribute one grain of good either for fighting or getting provisions. Further, let us get rid of all superfluous baggage, save only what we require..." Anabasis by Xenophon, Book III
I need to get rid of some wagons and tents.
I need to get rid of some wagons and tents.
Sunday, May 12, 2013
guilty pleasure
For my Advanced Legal Writing class we had to read a work of fiction this week. I have at various times in my life read voraciously, and yet I've had to put reading for enjoyment aside almost entirely to keep up with the week to week demands of law school piled on top of everyday life. During breaks from school I find I read almost a book a day for a few days straight, as if it were a drug and I an addict.
So when I had finished my reading for Community Property and for Federal Indian Law, it was a sort of illicit pleasure to pick up a novel and begin reading. More than once I felt a stab of guilt and had to remind myself that this was required reading, that this was allowed, indeed I must. And just like that, the book is finished and I have no more excuse to indulge.
So when I had finished my reading for Community Property and for Federal Indian Law, it was a sort of illicit pleasure to pick up a novel and begin reading. More than once I felt a stab of guilt and had to remind myself that this was required reading, that this was allowed, indeed I must. And just like that, the book is finished and I have no more excuse to indulge.
Saturday, May 11, 2013
The religion of a law student
Question all things
Measure only by the law, either as it is or as it should be
What it says is not what it means, look further, dig deeper
To understand you must read about this topic from at least four different sources
Use more colons and semicolons, less commas
Immerse yourself in the law to exclusion of other things, not because it is more important but because it is necessary to assimilate what you need to know
And ever more all the time, be who you are, speak regardless of your words’ alignment with traditional values, speak out, speak up
Wednesday, May 8, 2013
On being the underdog in the real world
I'm trying, and succeeding generally, to generate enthusiasm in myself for my summer classes. Tonight was Federal Indian Law, which promises to raise some difficult and thought provoking issues around sovereignty, reserved rights and not least, the doctrine of discovery-perhaps the most presumptuous and racist doctrine I have run into to date.
The US view of Indians began with a concept of limited sovereignty that gave the Indians the right to deal with us, but no others, and then over the course of the last 200 years has bettered and worsened according to the prevailing political winds of the time. It's not just the taking of their lands and forcing them onto reservations far from their homelands. At once subjected to forced assimilation, then termination, then self-determination-what will be next? But I suspend judgment for now on all of it. Tonight I'm just tired, and the idea of having to perpetually guard, to perpetually be at risk of losing one's rights based on the current political will of the majority, well that just wearies me to the bone. And I don't quite see how anyone who lives under such a shadow can really focus energy enough on something else to succeed at it. Yet another new perspective, for which I am grateful anyway.
The US view of Indians began with a concept of limited sovereignty that gave the Indians the right to deal with us, but no others, and then over the course of the last 200 years has bettered and worsened according to the prevailing political winds of the time. It's not just the taking of their lands and forcing them onto reservations far from their homelands. At once subjected to forced assimilation, then termination, then self-determination-what will be next? But I suspend judgment for now on all of it. Tonight I'm just tired, and the idea of having to perpetually guard, to perpetually be at risk of losing one's rights based on the current political will of the majority, well that just wearies me to the bone. And I don't quite see how anyone who lives under such a shadow can really focus energy enough on something else to succeed at it. Yet another new perspective, for which I am grateful anyway.
Sunday, May 5, 2013
jumping back in with both feet
I suppose it's no surprise that marriage keeps cropping up in various ways in the study of law. The importance of this institution is hard to overstate, even while I chafe at its current use by the government, and the meaning attached to it. Not a subject for cocktail hour, to be sure.
I am home from vacation and back to the books right away, because classes start in two days, and I have foolishly signed up for 3 classes this summer. I fear I am biting off more than I can chew but it's hard to say what class I would drop if I were looking to lighten the load. At least both the Federal Indian Law and the Advanced Legal Writing classes are pass/fail and won't affect my GPA. Community Property is a required class taught only in the summer, so there is no option about taking it. This is my last summer of law school, so I can't put it off.
So I have begun my Community Property reading, and of course marriage-or the judicial dissolution of it, is a necessary element of this discussion. The book begins with a very cursory overview of the meaning of marriage. I recognize that it is outside the scope of the text book and this class to consider the validity of marriage itself, at least as it is used to legitimate familial relationships and as a means to deliver benefits and privileges to caregiving units by the government. But the topic reminded me of why I have become so 'anti-marriage' as it exists today.
The government, and case law, have posited that some of the primary purposes of marriage are for societal stability and to provide for responsible child-rearing. (see Maynard v. Hill 125 U.S. 190; Adams v. Palmer 51 Me.481; In re Marriage 43 Cal. 4th 757; Reynolds v. U.S. 98 U.S. 145)
Given that the number of households that are not based on a legal marriage are now outnumbered by other types of structures in the US, societal stability may be a challenging correlation to draw.
The need for caregiving is, however, a valid concern that reaches far beyond childrearing. All of us will at some point in our lives have need for care from others. Babies, the aged, the disabled are all obvious examples, but not nearly a complete picture. The mother giving birth, the child being subjected to abuse, the unemployed worker, the victim of crime, the temporarily ill, accident victims-all have need of care given by others even if for only a short time. The state has a legitimate interest in supporting familial or other units that provide this care both for the benefit of its citizens and to reduce the burden on the state to finance this care. But the majority of this caregiving is done outside of a married family group, and when the government provides certain benefits only to married couples, it misses the mark badly.
The Federal Government Accountability Office has listed 1,138 rights or benefits in which marital status is a determining factor. Some major areas include the impact of income tax laws, inheritance laws, property tax exemptions, childrens' access to social security benefits, standing to bring tort action, health insurance coverage, parentage rights, marital privilege as to testifying in court, operation of a joint business, veterans' discounts on medical care, education and home loans, FMLA leave and wrongful death actions.
In looking at these areas generally, I find it hard to see how being married is a key component at all. Certainly there are more tailored and meaningful ways to establish inheritance, parentage and other such qualifiers.
There are equal protection problems with the current approach at the very least, and I would argue that aside from any legal concerns, we as a society should reconsider our approach to support for caregiving. I know there are strong religious and traditional societal drivers behind the support of marriage as it is today. But regardless of what a particular political or religious group may wish for, the reality is that many of those who function in caregiving units are not protected by a marital union. Our delivery of benefits and privileges needs to be broader based in order to provide more even distribution. There is benefit to society in educating our youth, rehabilitating prisoners, providing humane and respectful care for the elderly and disabled.
We can do better than this.
I am home from vacation and back to the books right away, because classes start in two days, and I have foolishly signed up for 3 classes this summer. I fear I am biting off more than I can chew but it's hard to say what class I would drop if I were looking to lighten the load. At least both the Federal Indian Law and the Advanced Legal Writing classes are pass/fail and won't affect my GPA. Community Property is a required class taught only in the summer, so there is no option about taking it. This is my last summer of law school, so I can't put it off.
So I have begun my Community Property reading, and of course marriage-or the judicial dissolution of it, is a necessary element of this discussion. The book begins with a very cursory overview of the meaning of marriage. I recognize that it is outside the scope of the text book and this class to consider the validity of marriage itself, at least as it is used to legitimate familial relationships and as a means to deliver benefits and privileges to caregiving units by the government. But the topic reminded me of why I have become so 'anti-marriage' as it exists today.
The government, and case law, have posited that some of the primary purposes of marriage are for societal stability and to provide for responsible child-rearing. (see Maynard v. Hill 125 U.S. 190; Adams v. Palmer 51 Me.481; In re Marriage 43 Cal. 4th 757; Reynolds v. U.S. 98 U.S. 145)
Given that the number of households that are not based on a legal marriage are now outnumbered by other types of structures in the US, societal stability may be a challenging correlation to draw.
The need for caregiving is, however, a valid concern that reaches far beyond childrearing. All of us will at some point in our lives have need for care from others. Babies, the aged, the disabled are all obvious examples, but not nearly a complete picture. The mother giving birth, the child being subjected to abuse, the unemployed worker, the victim of crime, the temporarily ill, accident victims-all have need of care given by others even if for only a short time. The state has a legitimate interest in supporting familial or other units that provide this care both for the benefit of its citizens and to reduce the burden on the state to finance this care. But the majority of this caregiving is done outside of a married family group, and when the government provides certain benefits only to married couples, it misses the mark badly.
The Federal Government Accountability Office has listed 1,138 rights or benefits in which marital status is a determining factor. Some major areas include the impact of income tax laws, inheritance laws, property tax exemptions, childrens' access to social security benefits, standing to bring tort action, health insurance coverage, parentage rights, marital privilege as to testifying in court, operation of a joint business, veterans' discounts on medical care, education and home loans, FMLA leave and wrongful death actions.
In looking at these areas generally, I find it hard to see how being married is a key component at all. Certainly there are more tailored and meaningful ways to establish inheritance, parentage and other such qualifiers.
There are equal protection problems with the current approach at the very least, and I would argue that aside from any legal concerns, we as a society should reconsider our approach to support for caregiving. I know there are strong religious and traditional societal drivers behind the support of marriage as it is today. But regardless of what a particular political or religious group may wish for, the reality is that many of those who function in caregiving units are not protected by a marital union. Our delivery of benefits and privileges needs to be broader based in order to provide more even distribution. There is benefit to society in educating our youth, rehabilitating prisoners, providing humane and respectful care for the elderly and disabled.
We can do better than this.
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