The Nature of Dependencies and Welfare ‘Reform’

by Martha Albertson Fineman

Image via Pixabay


“As a nation, this is one of our definitive moments.  We are making determinations about our social welfare system with significant and widespread implications for the weakest and most defenseless Americans. It is widely understood that the social safety net is being torn apart by the rhetoric of budget necessity and professed American moral values. Yet, most of us stand outside of the debate, complacent or paralyzed in disbelief as our political leaders substitute market ideology for moral responsibility and sacrifice “realities” to symbol and myth.

The articulated assumptions and assertions advanced for the proposed changes in welfare must be challenged. Various academics and other researchers have produced a  multitude of studies questioning the premises behind putting welfare mothers to work and indicating that punitive measures designed to curtail reproduction do not work. These scholarly efforts at providing empirical information relevant to the current political debates are not widely reported in the media, nor do they persuade in the legislature. This particular set of reforms seems driven by ideology as uncomplicated by empirical studies as it is resistant to appeals for caution and compromise in the name of compassion.

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Equality Across Legal Cultures – The Role for International Human Rights

by Martha A. Fineman

“It was an honor to present the Second Annual Ruth Bader Ginsberg Lecture. Justice Ginsburg has been a leader on the United States Supreme Court in the fledgling battle over whether and how to integrate international human rights concepts with traditional American Constitutional jurisprudence. The tasks of acceptance and integration have proven difficult to accomplish, with recent attempts generating a backlash that seemingly sprung from a deep well of belief about American superiority and exceptionalism.

Justice Ginsberg is not an isolationist in her approach to the U.S. Constitution, nor does she think America an exception when it comes to assessing the merits of comparative analysis. A few years ago, she wrote that an international comparative approach is “relevant to the task of interpreting constitutions and enforcing human rights.” She recognized that the United States loses an opportunity to expand upon its historic understanding of equality if we neglect the struggles of others in trying to address the disadvantaged status and bias shown against women, and other historically vulnerable societal groups. In this context, Justice Ginsberg was referring to affirmative action policies. In developing arguments in favor of affirmative action it has been productive when countries such as Australia, Canada, and South Africa consult the experiences and resolutions of their sister states, a practice in which they engage routinely. Noting the comparative lack of integration of other countries’ reasoning, as well as the relative silence in regard to international human rights generally, Justice Ginsberg wrote: “the same readiness to look beyond one’s own shores has not marked the decisions of the [United States Supreme Court].”

At the time she wrote this article in 1999, Justice Ginsburg found only five references to the Universal Declaration of Human Rights in United States Supreme Court opinions. Only two references were found in the opinions of Supreme Court majorities and the most recent citation at that time had appeared thirty-two years earlier in a dissenting opinion written by Justice Thurgood Marshall.

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The Politics of Custody and the Transformation of American Custody Decision Making

by Martha A. Fineman

Image via Pixabay


In recent years, much political attention in the United States has focused on the family as an institution in a state of crisis and transition. Advocates of various reforms assert that the stresses of modern life, par­ticularly the high divorce rate, will certainly change the family. The family is viewed as an institution in a transitional stage and, as such, is the subject of ideological struggle within the context of the political sys­tem. Of particular interest is the form and substance of the various characterizations of the perceived problems associated with the family. The way we define the issues, to a great extent, dictates the solutions. The assumptions underlying a variety of suggested reforms in the rules that govern families reveal the tensions in conflicting attitudes concerning the familial institution. Separated out for particular concern have been the children, anointed as the “victims” of the dislocations in the modern family. For example, moral and political concerns over the implications of the no-fault, freely accessible divorce systems adopted by the states have tended to center on the resulting precarious position of the “children of divorce.”

Characterizing children as innocent victims in need of protection is typical of professional reformers’ rhetoric in this age of no-fault di­vorce. Continue reading The Politics of Custody and the Transformation of American Custody Decision Making

Our Sacred Institution: the Ideal of the Family in American Law and Society

by Martha Albertson Fineman

Image via Pixabay


“Law and the images of social organizations reflected and reinforced in law are important devices in the imposition and perpetuation of generalized societal norms. The relationship between dominant ideology and law is suggested in the processes of generation and interpretation of specific legal rules-in the creation of legal rhetoric. As lawgivers create and interpret law they also articulate, define, and shape the perceived interest of the larger society.

Societal interest is “found” by reference to many types of data, typically produced outside of the law-making process and incorporated through introduction as evidence or expert testimony in adjudications or legislative hearings. In drawing conclusions about society, human nature, and/or the interests to be expressed in law, lawmakers may reference information produced by a variety of methods, framed by specific disciplines-science, history, religion, logic, philosophy, sociology, etc.-or, perhaps, just derive answers from their own past experiences and present intuitions. Every method used for production of knowledge results in some controversial outcomes. Quite often there is conflicting, unclear, or dubious information about any specific “fact” or conclusion.

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