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Ira Mark EllmanProfessor of Law, Affiliate Professor of Psychology,Willard H. Pedrick Distinguished Research Scholar, andFellow, Center for the Study of Law, Science, & Technology |
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| Recent Articles To access download button, click "read" icon. For older papers where no abstract is provided below, you can read the abstract at the link before deciding whether to download. The version available here for download here is not always the final version as published; in some cases journal editors have made minor changes in a final published version to which I do not have access. |
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A Case Study in Failed Law Reform: Arizona's Child Support Guidelines, 57 Arizona Law Review 137 (2012) Abstract: 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.
Should Marriage Matter? (with Sanford Braver) (forthcoming in Marriage at the Crossroads (Cambridge University Press) (Elizabeth Scott and Marsha Garrison, editors). Abstract: This is a draft of a chapter that will appear in a forthcoming book. It brings together data from a series of empirical studies that ask a sample of American citizens about the legal obligations intimate partners should have to one another, when their relationship ends. (Ellman, Braver, & MacCoun 2009; Ellman, Braver, & MacCoun 2012; Ellman & Braver 2011; Ellman & Braver 2012). These published studies have focused on child support and claims for post-relationship support (alimony). They use a common methodology and a respondent pool assembled in the same way from study to study. This chapter draws together findings from these earlier studies that bear on the question of how much impact a couple's marital status has on our respondents' views. We also report here for the first time findings from another study in this same series that examined our respondent views about the impact a couple's marital status should have on the allocation of their property at the termination of their relationship.
Lay Intuitions About Child Support and Marital Status, 23 Child and Family Law Quarterly 465 (2011). (with Sanford Braver) Abstract:Given the fact that the child and custodial parent generally share a living standard, there is some tension between the traditional rule excluding marital status altogether as a consideration in setting child support levels, and the traditional American rule making marriage an absolute requirement in claims by one spouse against the other for support (traditionally, ‘alimony’) for herself. How should that tension be resolved? This paper is part of a larger project investigating how ordinary citizens resolve such policy problems, by asking them to decide a series of cases that systematically vary critical facts so as to reveal the underlying principles animating their views. This study extends the authors’ prior child support studies by a) expanding the range of paternal incomes presented to respondents, and b) examining the effect of the parents’ marital status and relational duration. We replicate our prior findings on the impact of parental incomes, and the disparity between them, across the expanded income range, and the finding that overall, citizens favor higher support amounts than the law provides when custodial parent income is low, but lower support amounts when the custodial parent income is higher. We also now find that our respondents would increase support awards for low income mothers (over current levels) by larger amounts when parents had married, than when they had cohabited, and would give the lowest awards to mothers who had had no relationship at all with the father, beyond the single sexual act leading to the child’s conception. We explain why the pattern of their support awards suggests that in setting child support levels they give more weight than current American law to the children’s interests. Lay Intuitions About Family Obligations: The Case of Alimony (with Sanford Braver) 13 Theoretical Inquiries in Law 209 (2012) Abstract:Most people have a sense of obligation to family members that is more powerful than the law in compelling compliance with its demands. When families dissolve, however, the power of such nonlegal norms often dissolves as well. The question then becomes what the law should require in their stead. This paper is part of a larger series of studies that have examined this question by asking what citizens believe the law should demand, using surveys of persons called to jury service in Tucson, Arizona. Respondents are asked to imagine they are the judge charged with deciding a series of cases in which the facts are systematically varied so as to reveal the implicit principles survey respondents employ in deciding them. Previously reported results in this project have examined studies of the amount of the child support people believe appropriate, and how they believe child custody disputes should be resolved. This study examines lay views about alimony. It finds considerable divergence between American law in practice, and the views of American citizens as to what the law should be. Survey respondents were willing to award alimony considerably more often than the law now does. More clearly, in deciding on whether to allow an alimony award, they care most of all about the claimant’s responsibility as primary caretaker of the couple’s minor children, some but noticeably less about the partner’s marital status and their relational duration, and very little at all about the claimant’s history of having cared for the couple’s now-grown children. Moreover, the way these factors affect our respondents’ judgments about alimony are not very dependent on who they are. Our respondents did vary among themselves, of course, in the frequency with which they allowed alimony, but they varied relatively little in how factors such as marriage, relational duration, the presence of minor children, or the history of care for now-grown children, affected their judgments. The citizen consensus reflected by these patterns differs, however, from the prevailing legal rules, the views of many scholars, and the recommendations of the American Law Institute. This striking discrepancy is interesting although not always surprising. Our respondents’ willingness to award alimony to non-marital partners, for example, is consistent with the law of some other western countries, even if not with American law, suggesting perhaps that it is American law, not our respondents, that is peculiar. Perhaps it is also understandable that our respondents seem more concerned with the welfare of the couple’s current minor children, than with addressing perceived inequities in the current economic circumstances of the adult partners. In any event, the views of our respondents pose a challenge to policymakers. Given the dearth of theoretical justification for current American practice, its rejection by American citizens seems all the more telling.
Abstract: In a pair of studies, we examine lay people’s judgments about how hypothetical cases involving child custody after divorce should be resolved. The respondents were citizens called to jury service in Pima County, AZ. Study 1 found that both male and female respondents, if they were the judge, would most commonly award equally shared custody arrangements, as advocated by most fathers’ groups. However, if the pre-divorce child care had been divided disproportionately between the parents, this preference shifted, slightly but significantly, toward giving more time to the parent who had provided most of that care, consistent with the Approximation Rule advocated by the American Law Institute. Moreover, respondents judged that the arrangements prevailing in today’s court and legal environment would award equal custody considerably less often, and would thereby provide much less parenting time to fathers, than the respondents themselves would award. Study 2 found that respondents maintained their strong preference for equally shared custody even when there are very high levels of parental conflict for which the parents were equally to blame, but awarded substantially less time to the culpable parent when only one was the primary instigator of the parental conflict. The striking degree to which the public favors equal custody combined with their view that the current court system under-awards parenting time to fathers could account for past findings that the system is seriously slanted toward mothers, and suggests that family law may have a public relations problem.
Abstract:Citizens awaiting jury service were asked a series of items, in Likert format, to determine their endorsement of various statements about principles to use in setting child support amounts. These twenty items were derived from extant child support systems, from past literature and from Ellman and Ellman’s (2008) Theory of Child Support. The twenty items were found to coalesce into four factors (principles). There were pervasive gender differences in respondent’s endorsement of the principles. More importantly, three of these four principles were systematically reflected, in very rational (if complex) ways, in the respondents’ resolution of the individual child support cases they were asked to decide. Differences among respondents in their endorsement of these three principles accounted for differences in their patterns of child support judgments. It is suggested that the pattern of coherent arbitrariness (Ariely, Loewenstein, & Prelec, 2003) in those support judgments, noted in an earlier study (Ellman, Braver, and MacCoun 2009) is thus partially explained, in that the seeming arbitrariness of respondents’ initial support judgments reflect in part their differing views about the basic principles that should decide the cases. Click below for the final edited manuscript submitted to Law and Human Behavior. Subscribers to Law and Human Behavior may download the published version at http://www.springerlink.com/content/6725852nh784l778/
Abstract: We examine how ordinary citizens translate intuitions about child welfare and distributive justice into dollar amounts for post-divorce child support payments. Our analyses indicate that child support judgments are quite sensitive to anchoring and question-wording effects. Nevertheless, we find much that is both interpretable and principled in these judgments. For example, the amounts that citizens recommended in an open-ended format ("name") were nearly identical to the amounts other citizens selected from an array of choices in a multiple choice format ("choose"). Abstract: Setting the amount of a child support award involves tradeoffs in the 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 formulas 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 public's intuitions about the appropriate tradeoffs. We report an empirical study of lay intuitions about 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 citizen assessments of child support for particular cases conform to the pattern that Ariely and his coauthors have called "coherent arbitrariness": The respondent's choice of dollar magnitude may be arbitrary, but relative values respond coherently to case variations, within and across citizens. These patterns suggest that our respondents have a consistent and systematic preference with respect to the structure of child support formulas that differs in important ways from either of the two systems adopted by nearly all states.
Abstract: The 2006 decisions of the House of Lords in the companion cases of Miller and McFarlane moved the English marital property law toward clearer rules for property allocation at divorce, and toward a compensatory model for support. This invited casenote concludes that these changes bring English law closer to the model urged by the American Law Institute.
Abstract:The 1985 judgment in O'Brien v. O'Brien, holding that a medical license was marital property, is probably the most well-known family law decision ever rendered by the New York Court of Appeals. But despite the enthusiastic reception it initially received from many reformers, it has been a spectacular failure. Not only has it been rejected by the courts of every other state, but its legislative repeal has been sought by mainstream New York bar associations, and its abandonment recently recommended by a commission appointed by the Chief Justice who originally championed it. This essay, a condensed version of which will appear as a chapter in the forthcoming book Family Law Stories, traces the history of the case to learn why New York, which had been among the most conservative states in the nation in its treatment of marital property, became the only state to adopt this revolutionary view. The answer appears to be a combination of political will with a peculiar New York legal provincialism that led both the court, and leading New York commentators, to misperceive the very ordinary provisions of the state's new equitable distribution law as unique and radical. Relying on a close examination of the record, contemporaneous newspaper accounts, and interviews with some of the principals, the essay also uncovers previously unknown parts of the O'Briens' story that suggest that while the decision was more unjust than most legal scholars have assumed, its full effect was avoided by a secret settlement that reduced its impact on the O'Briens.
Abstract: This short essay, presented at a conference honoring the work of leading Japanese legal sociologist Takao Tanase, examines the portion of his recently translated work that compares Japanese and American law on child visitation after divorce. The comparison initially suggests that the stronger American view of parental rights better serves children's interests than the weaker Japanese view. Looking at the comparison through a different lens, however, also suggests that the real difference lies in the two cultures' diverging conception of social parenthood, and thus of the identify of the person who holds parental rights: the noncustodial American parent remains a legal parent at least in part because he or she remains a social parent, in aspiration if not reality, while the traditional Japanese view is the opposite. Finally, the essay suggests a causal connection, running in both directions, between the traditional Japanese rules on custody and the relatively low Japanese divorce rates.. .
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