Ira Mark Ellman

Dissolving the relationship between divorce laws and divorce rates

Law and other causes influence the divorce rate. Thus much is axiomatic. But when an attempt is made to go further and determine the relative influence and effect of law and the sum of other causes, then the controversy opens.1

The Theory of Alimony

Although alimony has long been a feature of divorce law, there is no theory explaining why either spouse should have a financial obligation to the other that survives their marriage. Explanations based on gender roles, or assessments of blame for the marriages failure, are inconsistent with modern attitudes. More recently, commentators and courts have suggested that contract or partnership concepts explain alimony obligations. In Part I of this Article, Professor Ellman demonstrates the inadequacy of theories that use analogies to contract or partnership to explain or justify the imposition of alimony obligations. In Part II he offers a new theory of alimony based on a societal policy of encouraging sharing behavior in marriage by requiring compensation, at divorce, for the loss in earning capacity arising from such sharing behavior. Employing three basic principles, subsidiary rules, and numerous examples, Part II develops this general policy into a comprehensive theory.

Intuitive Lawmaking: The Example of Child Support

Setting the amount of a child support award involves tradeoffs in t he allocation of finite resources among at least three private parties: the two parents, and their child or children. Federal law today requires states to have child support guidelines or f ormulas that determine child support amounts on a uniform statewide basis. These state guidelines differ in how they make these unavoidable tradeoffs. In choosing the correct balance of these competing claims, policymakers would do well to understand the publics intuitions about the appropriate t radeoffs. We r eport an empirical study of lay intuitions ab out these tradeoffs, and compare those intuitions to the principles underlying typical state guidelines. As in other contexts in which people are asked to place a dollar value on a legal claim, we find that c itizen assessments of child support f or particular cases conform to the pattern t hat Ariely and his coauthors have called “coherent arbitrariness”: Th e res pondents choice o f dollar m agnitude may be arb itrary, but relative v alues respond co herently to case variations, within and acr oss ci tizens. These patterns suggest that our respondents have a consistent and systematic preference with respect to the structure of c hild support formulas that differs in important ways from either of the two systems adopted by nearly all states.

Can Others Exercise an Incapacitated Patient's Right to Die?

Ellmans article is one of four in this issue of the Hastings Center Report on the first right to die case to come before the U.S. Supreme Court. The author, a law professor, agrees with critics that the Missouri Supreme Court erred in Cruzan when it declined to grant the parents of a woman in a persistent vegetative state authority to halt her tube feedings. However, he believes that in order to overturn Cruzan, the U.S. Supreme Court would have to wrongly and dangerously hold that Missouri is obliged to follow the familys instructions, even if Cruzans wishes are unknown. Ellman warns against recognizing a third partys claim to exercise an individuals constitutional right to decide about medical care on her behalf. He argues that this right, emerging from a principle of self determination, can apply only to decisions concerning oneself, and cannot be exercised by another.

Marital Roles and Declining Marriage Rates

This essay is an updated, expanded and revised version of the second half of Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Marital Roles, published in 2000 and also available on SSRN. It draws on demographic studies and comparative research to examine the persistence of traditional marital roles and its possible relationship to declining marriage rates.

And Now a Word Against Our Sponsor: Extending the FCC's Fairness Doctrine to Advertising

This article considers the extension of the Federal Communications Commission’s (FCC) fairness doctrine to commercial advertising. Under the fairness doctrine, although an advertiser may express a view on a public issue in the course of a sales pitch, the FCC has rarely considered the content of commercial messages in determining whether licensees were meeting their obligation to present a balanced coverage of conflicting views. A number of recent complaints and court decisions have forced the FCC to reconsider its position on commercial messages, however. This article focuses on the issues that should be involved in this reconsideration. It briefly reviews the principles underlying the fairness doctrine and describes the FCCs application of these principles to commercials. Then it suggests how the FCC should deal with three possible categories of commercial announcements, and discusses the complainants difficulties in obtaining a quantity or quality of reply time comparable to that of the original announcements, a fairness problem that is especially difficult to resolve when the doctrine is applied to commercials. Finally, it examines the financial impact an extension of the fairness doctrine to commercial announcements may have upon licensees. It concludes that limiting the doctrine to non-commercial content is arbitrary and unjustified under the statutory public interest standard, is unnecessary to protect the FCC from undue administrative burdens, and cannot be supported as necessary to maintain the financial base of radio and television.