Ira Mark Ellman

Charles J. Merriam Distinguished Professor of Law,

Affiliate Professor of Psychology,And

Fellow, Center for the Study of Law, Science, & Technology

 

Sandra Day O'Connor
College of Law
Arizona State University
P. O. Box 877906
Tempe, AZ  85287-7906
Phone: (480) 965-2125   
Fax: 480-320-4092
E-mail: ira@asu.edu
 
       
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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.

Moral Intuitions About Fault, Parenting, and Child Custody After Divorce (with Ashley Votruba, Sanford Braver, and William Fabricius) (2013) (under review)

Abstract: Allocations of child custody post-divorce are currently determined according to the Best Interest Standard, i.e. on what is best for the child, as compared to standards of the recent past which weighed fairness to the parents or parental fault (or marital misconduct). Since any such evolving standards rest so fully on changing cultural norms, an important question is how these standards correspond to the moral intuitions of lay citizens asked to take the role of judge in hypothetical cases. Do factors such as whether one parent had an extramarital affair influence their custody decision-making? In the current studies, a representative sample of citizens awaiting jury service were first given a neutral scenario portraying an “average” family. Almost 80% favored dividing custodial time equally between the two parents, replicating our earlier finding. Then, in Study 1, they were given a second, Test case, vignette in which either the mother or the father was said to have carried on an extramarital affair that “essentially ruined the marriage”. In Study 2, either the mother or the father was said to have sought the divorce, opposed by the other, simply because he or she “grew tired” of the marriage. For both Test cases, more than half the respondents made little or no adjustment to their parenting time allocation, but a substantial minority did, awarding the offending parent significantly less parenting time. While one might guess some respondents would be motivated to punish the adulterous parent, we believe it less likely they would believe it appropriate to punish a spouse who sought to end a marriage they no longer found satisfying. Given that there was relatively little difference in our respondents' reactions to the two test cases, we therefore considered explanations, for the responses of those who did reduce parenting time, that could apply equally to both test cases. We suggest two possibilities: 1) they find the behavior in both test cases evidence that the offending parent's commitment to parenting is deficient, since they were willing to risk imposing divorce on their children by their behavior, or 2) a spouse who imposes the burden of parental separation on the children by causing divorce should be penalized, not for the offensiveness of their conduct, but for the harm they caused their children by bringing about the divorce.

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Citizen Views About Fault in Property Division (with Sanford Braver) (2013) (forthcoming, Family Law Quarterly, Fall 2013).

Abstract: While most American states today exclude or severely limit consideration of marital misconduct in allocating property at divorce, about 15 still allow judges broad discretion to consider it. This study asks whether there is popular support for considering fault in property allocations. We surveyed a representative cross-section of over 600 citizens awaiting jury service, asking for two types of judgments. One type asked respondents how they would allocate marital property in each of two hypothetical cases: a baseline case for which we knew, from prior research, respondents would favor equal division, and a second case that was identical but for claims by one spouse of the other’s adultery. There were 14 variations of the adultery case, differing in selected factual details; each respondent was asked about just one randomly selected variation. The second type of judgment asked respondents to indicate the strength of their agreement or disagreement with each of a series of statements presenting reasons for courts to consider, or not consider, allegations of marital misconduct in allocating property. Only when the adultery was admitted with no excuse or justification offered for the behavior was there any notable departure from equal division of the property, and 65% of respondents preferred equal division even in that case. Analysis of the Likert items suggests respondents’ reluctance to consider fault is based more on process concerns than on a moral indifference to adultery.

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Public Intuitions About Fair Child Support Allocations: Converging Evidence for a "Fair Shares" Rule (with Sanford Braver and Rob MacCoun) (2013) (forthcoming 2014, Psychology, Public Policy, and Law)

Abstract: Nearly all American states use one of two systems for setting the amount of child support that noncustodial parents (NCPs) are required to pay to custodial parents (CPs). In previous work we found that lay judgments of the child support amount the law should require differ in meaningful ways from these two systems: Our respondents favor child support amounts that are more responsive to the NCP’s income, and much more responsive to the CP’s income, than set by either system. They also favor dollar amounts that increase more rapidly with NCP income when CP income is lower, producing a characteristic fanning lines pattern when dollar support amounts are charted against NCP income for several different CP incomes. We give the label “Fair Shares” to these two features of our respondents’ child support judgments. We describe 6 new experimental studies that vary the context of these judgments in ways that test whether the “Fair Shares” account is robust. Our studies consistently replicate the fan shaped pattern and shed further light on lay judgments.

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Child Maintenance: How Much Should the State Require Fathers to Pay When Families Separate? (with Caroline Bryson, Stephen McKay, and Jo Miles) (2013)

Abstract: Millions of British households are eligible to receive child maintenance from non-resident parents, but fewer than one-third receive payments regularly, and two-thirds receive nothing. Many would not be in poverty if they regularly received the appropriate maintenance payments. The government nonetheless plans to reduce the state's role in setting amounts and enforcing their payment.

This article reports on a comprehensive study of the British public's views on these issues, in which 3248 randomly chosen members of the British public were asked to state, in pounds, the amount of child maintenance they believed the law should require the father to pay for each of a series of families in different financial and family circumstances. The study found the public believes:

1) the state should set the amount of, and enforce, child maintenance payments;

2) amounts should be considerably higher than currently called for in the CSA formula, especially at higher paternal incomes;

3) fathers should pay a higher percentage of their income in child maintenance when either their income is more, or the mother's income is less, unlike the state formula that applies the same percentage to all fathers without regard to either parent's income;

4) even low-income parents should pay at least some child maintenance; and

5) the purpose of child support goes beyond ensuring the child has necessities, to also provide the child with amenities, when the father's income allows.

While there was some variation among population subgroups in the details, these five basic principles were favoured by both men and women, by those with more or less income or education, and without regard to the respondent's self-identified party affiliation.

This study was funded by the Nuffield Foundation in London and data was collected as part of the annual survey, British Social Attitudes, conducted by NatCen, the National Center for Social Research. One can access the complete report, including appendices, at no cost from the NatCen website. An adapted version was published in October 2013 in the British journal Family Law: 43 Fam. L. 1296 (2013). The submitted version can be donloaded here from SSRN. This work was based on comparable studies I conducted in the United States with Sandy Braver and Rob MacCoun. A future paper will offer comparisons between the British and American data.

 

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.

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Should Marriage Matter? (with Sanford Braver) (in Marriage at the Crossroads (Cambridge University Press 2013) (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.

These data reveal that our respondents care about marital status, but they care more about financial inequality and about children. While they certainly give marriage weight in thinking about obligations between adult partners, they do not give it the overarching weight it often receives in American law. They believe intimate partners can acquire legal obligations to one another without marriage as well as from marriage. They see marriage as a relevant factor but not as a qualifying condition.

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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.

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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.

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  • Marital Agreements and Private Autonomy in the United States (chapter Marital Agreements and Private Autonomy in a Comparative Perspective (Jens Scherpe, editor), Hart Publishing 2011)

    Abstract: This essay is a draft of a chapter that will appear in Marital Agreements and Private Autonomy in a Comparative Perspective, (Jens M. Scherpe, ed., forthcoming, 2010)). It provides a critical overview of the current American law on the enforceability of premarital and marital agreements in the United States. The book as a whole will provide such an overview for a selection of countries in Europe and elsewhere. Each chapter also describes the default rules that apply in the absence of an agreement.

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  • Lay Judgments About Child Custody After Divorce (with Sanford Braver, Ashley Votruba, and William Fabricius),17 Psychology, Public Policy, and Law 212 (2011).)

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.

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  • Abstract Principles and Concrete Cases in Intuitive Lawmaking(with Rob MacCoun and Sanford Braver) 36 Law and Human Behavior 96 (2012).

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/

  • Converting Sentiments into Dollars: Scaling and Incommensurability Problems in the Evaluation of Child Support Payments (with Rob MacCoun and Sanford Braver), working paper for the September, 2008 Conference on Empirical Legal Studies
  • 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").

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  • Intuitive Lawmaking: The Example of Child Support (with Sanford Braver and Rob MacCoun), 6 Journal of Empirical Legal Studies 69 (2009)

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.

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  • The Theory of Child Support, 45 Harvard Journal on Legislation 107 (2008).

    Abstract: What is the appropriate amount of child support to require in particular cases? How should we take account, if at all, of subsequent events such as either parent's remarriage? It seems obvious that the answers to such questions ought to turn on our purpose in requiring support payments in the first place. But while fixing the amount of child support can be politically contentious, and has attracted the attention of partisans on both sides of the gender gap, the literature contains no systematic examination of support rules in light of their underlying policy purpose. This article identifies the three fundamental policy purpose that explain why we require child support, shows that the federally-required guidelines that determine most support orders are not usually designed to further those policies, and shows why this design failure the unintended but inevitable consequence of the methods most states rely upon for constructing their guidelines. The Article offers a new method for setting support guidelines that would ensure they reflect the policymakers' purpose. It draws on work in law and economics, and psychology, in analyzing current practice and in formulating its suggested alternative. Available here is the final published version of this article, originally posted on SSRN in a working paper version entitled "The Purpose of Child Support".

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  • Marital Roles and Declining Marriage Rates, 41 Family Law Quarterly 455 (2007)

    Abstract: 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.

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  • Note, Financial Settlement on Divorce: Two Steps Forward, Two to Go , 123 Law Quarterly Review 2 (2007).

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.

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  • O'Brien v. O'Brien: A Failed Reform, Unlikely Reformers (Chapter in Family Law Stories, 2007, and republished as part of symposium issue, 27 Pace L.Rev. 949 (2007))

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.

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  • Comparing Japanese and American Approaches to Parental Rights. Talk presented at the Takase Panel, Sho Sato Conference on Japanese Law, Earl Warren Legal Institute, U.C. Berkeley, February 12, 2005.

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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For all conference papers, click here

  • Do Americans Play Football?, 19 International Journal of Law, Policy and the Family (Oxford) 257 (2005). Read
  • Fudging Failure: The Economic Analysis Used to Construct Child Support Guidelines, 2004 University of Chicago Legal Forum 162. Read
  • Should Visitation Denial Affect The Obligation to Pay Support?, in William Comanor, editor, The Law and Economics of Child Support Payments (2004) (also in slightly expanded form at 36 Ariz.St.L.J. 661 (2004). Read
  • Relocation of Children after Divorce and Children’s Best Interests: New Evidence and Legal Considerations, 17 Journal of Family Psychology 206 (2003) (with Sanford Braver and William Fabricius). Read
  • Why Making Family Law is Hard. 35 Arizona State Law Journal 699 (2003)
    (Inaugural Lecture as the Willard H. Pedrick Distinguished Research Scholar).

Link at left brings immediate downloading of PDF file

  • Ambiguous-Father Families, in ALL OUR FAMILIES (Mary Ann Mason, Arlene Skolnick, and Stephen D. Sugarman eds., rev. and enl. ed., Oxford University Press 2002).Read
  • Contract Thinking Was Marvin's Fatal Flaw, 76 Notre Dame Law Review 1365 (2001). Read
  • Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Marital Roles, 34 Family Law Quarterly 1 (2000).Read

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