Volume 54, Issue 1

Barbara Ann Atwood: A Tribute

On the occasion of Justice Harry Blackmun’s retirement, Justice Souter made the following remark: “I dissent!”
On the occasion of Mary Anne Richey Professor Barbara Ann Atwood’s retirement, I likewise dissent.

Here’s why: It matters much to the University of Arizona James E. Rogers College of Law that her cranberry-colored car is parked (slightly askew) in the parking lot. That her office light is on. That her office door is open.

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Marital Contracts and the Meaning of Marriage

Contracts between spouses that alter the basic default rules of marital property and support are subject to widely varying legal standards across the United States. As with premarital contracts, the goals of efficiency and predictability are often in tension with other policy concerns, such as the recognition that the dynamics of an intimate relationship may distort the bargaining process. Although all states require financial disclosure as a prerequisite for an enforceable marital contract, some impose additional procedural and substantive criteria beyond those applied to premarital contracts. The varying legal standards, in turn, are rooted in competing visions about the meaning of marriage. These divergent constructions of marriage range from a status defined by immutable rights and obligations to an individualized relationship subject to private ordering in almost all respects. In light of evolving social attitudes about marriage and the diminishing popularity of the institution itself, this Essay ultimately recommends a flexible framework that provides a broad scope of contractual freedom while still holding spouses to a core duty of honesty and good faith in forming marital contracts.

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Regulating at the Margins: Non-Traditional Kinship and the Legal Regulation of Intimate and Family Life

This Article offers a new theory of how the law attempts to control intimate and family life and uses that theory to argue why certain laws might be unconstitutional. Specifically, it contends that by regulating non-traditional relationships and practices that receive little or no constitutional protection— same-sex relationships, domestic partnerships, de facto parenthood, and non- sexual procreation—the law is able to express its normative ideals about all marriage, parenthood, and procreation. By regulating non-traditional kinship, then, the law can be aspirational in a way that the Constitution would ordinarily prohibit and can attempt to channel all of us in ways that satisfy its normative ideals. This Article refers to this form of channeling or control as “back door” regulation, and maintains that by regulating at the margins, the law attempts to regulate everyone. In addition to offering a new theory of the family and its legal regulation, this Article uses that theory to enrich constitutional challenges to laws, like exclusionary marriage regimes, that selectively burden non-traditional intimacy and practices. Most broadly, it invites readers to consider how far the law reaches when it regulates as well as just how interconnected to one another the law’s regulation (and discrimination) makes us.

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Parents’ Self-Determination and Children’s Custody: A New Analytical Framework for State Structuring of Children’s Family Life

When adults exercise basic liberties, such as freedom of speech, association, or travel, their actions can adversely impact any child in their custody. In several topical areas of family and juvenile law, the prevailing view among courts and scholars is that the self-determination rights and interests of adults who happen to be parents trump or, at a minimum, must be balanced against the interests of their children, so that sometimes children’s welfare must be sacrificed for the sake of parents’ self-determination. This Article demonstrates that this view is mistaken, and that any deference to parents’ self-determining interests or supposed rights is inappropriate in resolving custody disputes between parents or between a parent and the state. The constitutional and normative analysis that ordinarily applies when the state constrains individual liberty is inapt in situations where the state acts as a proxy decision-maker for private individuals, and this Article shows that this is how we must view the state’s actions when courts and agencies decide with whom children will live. In such cases, it is inappropriate for state actors directly to consider the interests of anyone other than the children themselves.

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A Case Study in Failed Law Reform: Arizona’s Child Support Guidelines

It is hardly news to observe that a proposed legal reform is not adopted even though nearly all experts believe it would effectively advance the law’s widely supported policy goals. But if this phenomenon is commonplace, that is all the more reason for trying to understand why it happens. The recent effort to reform Arizona’s child support guidelines provides a particularly compelling case study of such a failed law reform effort, for several reasons. First, child support has generally not been politically contentious: Both Democrats and Republicans have for several decades combined to support changes in child support law intended to ensure that non-custodial parents contribute to the support of their children. Second, this is not merely a case of legislative inaction. In Arizona, as in many states, the state supreme court is the body assigned the task of writing the rules that establish how much child support a non-custodial parent must pay. The proposed reform would have become law had the legislature not affirmatively acted to overrule the recommendations of a series of committees the court had appointed to study the issue. Finally, all available information suggests that the proposed reforms were more consistent with the views of the Arizona electorate than the existing provisions they would have replaced. In sum, the legislature acted to prevent adoption of child support reforms proposed by the public bodies entrusted with deciding them even though the reforms were consistent with the views of the public and supported by nearly all the experts asked to study them. This Article attempts to understand why this happened. Among other things, it concludes that the reform suffered from an asymmetry in citizens’ motivation to engage the political process: those who stand to gain from a reform may not work as hard for its adoption as those who stand to lose from it will work for its defeat.

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Lovers, Parents, and Partners: Disentangling Spousal and Co-Parenting Commitments

This Article offers a fresh perspective on a problem that has long vexed legal scholars. The problem is a fundamental one: Although divorced parents share legal responsibility for their children, the parent who serves as primary caretaker bears most of the opportunity costs associated with that responsibility. Emerging custody norms may teach that divorce should not end spouses’ roles as co-parents, but laws governing property, alimony, and even child support remain wed to the clean-break myth that divorce can end or minimize all economic ties between spouses with children. Divorced caretakers are thus told they must share rights to children, but that they have no right to share the family wage that once supported caretaking labor.

The solution to the conceptual bind of the primary caretaker lies in an expanded vision of commitments between intimate partners and a narrowed vision of the role of divorce. In this Article, I argue that married parents are committed to each other on two levels—as intimate partners through marriage and as co-parenting partners through the addition of children to their family. Divorce ends the marriage, but it does not end the parents’ responsibility to share the financial costs and daily labors required to raise their children to majority. Disentangled from the marital commitment, the co-parenting commitment provides a conceptual basis for income sharing between divorced parents of minor children and ultimately an answer to the disparate costs of post-divorce caretaking.

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Sentencing Proportionality in the States

It seems axiomatic in a “government of laws and not of men” that a sentence ought to be generally proportionate in degree to the underlying criminal offense. Extreme, disproportionate sentences undermine public confidence in the justice system, are ineffective deterrents to an angry public who perceive them as unjust, and fail to reform the criminal who can see no fairness in such an extreme sentence. This Note explores the principles and analytical tools several state judiciaries have employed to analyze the proportionality of sentences and concludes that these states have formulated a coherent and workable system of review that other jurisdictions can adopt through either legislative or judicial action.

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Cleaning Elections

The term “clean elections” refers to systems of full public financing, wherein participating candidates rely entirely on public subsidies to run their campaigns without any private money. Although only a small number of jurisdictions use clean elections, evidence suggests that they have a variety of positive effects on the democratic system. Recently, however, the viability of clean elections has been called into doubt by the U.S. Supreme Court’s decision in *Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett*, which ruled an important provision of such systems unconstitutional. This Note first compares the effectiveness of traditional campaign finance reform with clean elections systems and concludes that the latter is superior as a policy matter. It then analyzes the Court’s decision in *Arizona Free Enterprise* and applies its reasoning to efforts aimed at campaign finance reform. It concludes that the Supreme Court has made a number of novel attempts at campaign finance reform almost impossible, but has left open venues for reforming clean elections systems to keep them viable and effective. Therefore, clean elections are the best option available to jurisdictions interested in campaign finance reform.

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Estate of Braden ex rel. Gabaldon v. State and Statutory Construction in the Arizona Supreme Court

In *Estate of Braden*, the Arizona Supreme Court held 3−2 that the State of Arizona could not be a defendant under section 46-455 of the Adult Protective Services Act. The majority and the dissent both employed a comprehensive set of statutory interpretation tools in their analysis. This Case Note explores how the court used these tools of interpretation in Estate of Braden and in other recent decisions to illustrate how the current court analyzes ambiguous statutes. It concludes with two general observations about the Arizona Supreme Court’s statutory interpretation theories. First, the court adheres closely to the text and is not easily persuaded to read requirements into statutes. Second, the court is open to considering a wide range of tools and sources when discerning the meaning of an ambiguous statute.

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Strict Compliance, Substantial Compliance, and Referendum Petitions in Arizona

In Ross v. Bennett, the Arizona Supreme Court held that recall petitions must “substantially comply” with constitutional and statutory requirements. Although the only issue before the court was whether the test for recall petitions should be a “substantial compliance” standard, the court’s reasoning suggests that the “strict compliance” standard, which requires absolute compliance with all constitutional and statutory requirements, should still be applied to referendum petitions. In this Note, I argue that the strict compliance standard is an inappropriate standard for evaluating referendum petitions. Instead, the court should apply the substantial compliance standard to referendum petitions, which ensures that otherwise valid petitions will not be void for failure to comply with some technical requirement that does not confuse or deceive electors. This standard not only reflects Arizona’s respect for direct democracy, but also recognizes the procedural safeguards that already prevent abuse of the referendum process.

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