1 See, in particular, Gary Becker, A Treatise on the Family (Cambridge, Mass.: Harvard University Press, 1981) (“Becker, Treatise”); Lloyd Cohen, “Marriage, Divorce and Quasi-Rents; Or, ‘I Gave Him the Best Years of My Life,’” 16 J. Leg. Studies 267 (1987); Ira Ellman, “The Theory of Alimony,” 77 Calif. L Rev. 1 (1989); Allen Parkman, No-Fault Divorce: What Went Wrong? (Boulder, Colo.: Westview Press, 1992) (“Parkman, No-Fault”).Google Scholar

2 See, e.g., my discussion on this point in Carbone, June, “Economics, Feminism and the Reinvention of Alimony: A Reply to Ira Ellman,” 5 Vand L Rev. 1463 n.105 (1990).Google Scholar

3 Victor Fuchs, Women's & Quest for Economic Equality (Cambridge, Mass.: Harvard University Press, 1988) (“Fuchs, Women's Quest”).Google Scholar

4 Kay, Herma Hill, “An Appraisal of California's No-Fault Divorce Law,” 76 Calif L. Rev. 291, 300 (1987).Google Scholar

5 See, e.g., Mary Ann Glendon, The New Family and the New Property (Toronto: Butterworths, 1981); id., Abortion and Divorce in Western Law (Cambridge, Mass.: Harvard University Press, 1987).Google Scholar

6 See Lenore Weitzman, The Divorce Revolution (New York: Free Press, 1985). Carol Sanger observes that for early feminists, “[d]istracting women from motherhood seemed to be the key to a better life.” Carol Sanger, “M Is for the Many Things,” I Rev. L. & Women's Stud. 1301, 1306 (1992).Google Scholar

7 Sanger, I Rev. L & Women's Stud at 1311–12. There is, of course, a much larger body of family law literature, often written by women, that addresses women's concerns without necessarily attempting to develop a distinctively feminist perspective. See, e.g., Joan Krauskopf, “Theories of Property Division/Spousal Support: Searching for Solutions to the Mystery,” 23 Fam. LQ. 253 (1989); Prager, Suisan Westerbrook, “Sharing Principles and the Future of Marital Property Law,” 25 UCLA L Rev 1 (1977).Google Scholar

8 For a review of feminist work in these areas, see Mary Jo Frug, Women and the Law 554–623, 747–804 (Westbury, N.Y.: Foundation Press, 1992).Google Scholar

9 For a discussion of the feminism of difference, see generally Williams, Joan, “Deconstructing Gender,” 87 Mich L Rev 797 (1989), And West, Robin, “The Jurisprudence of Gender,” 55 U. Chi. L Rev. 1 (1988).CrossRefGoogle Scholar

10 Fineman emphasizes (at 68–71) that the inadequacy of the reforms should have been apparent from the outset.Google Scholar

11 Fineman describes (at 79–80) the earlier law as a system of “old, rested gendered rules that permitted predictable, inexpensive decisions to be made without protracted litigation.”.Google Scholar

12 Fineman concludes (at 92): “Professor Areen thus dismisses caretaking, elevates the concern for fathers, and naively minimizes the harmful consequences of a divorce system which refuses to acknowledge disadvantages to custodial parents.”.Google Scholar

13 Fineman also emphasizes that the move away from a maternal presumption involved not only legal changes but also a broader revaluation of parenting, and she devotes more than a third of her discussion of child custody to the role of the social sciences in redefining fatherhood. She observes: This literature has not only concentrated on the ways that fathers may be missed by their children after divorce, but has also attacked many of the positive cultural assumptions associated with motherhood. For example, one consequence of this new focus on a noneconomically centered place for “Father” within the postdivorce family has been the denigration of the (stereotypical) nurturing tasks performed by “Mother.” As a result, the nurturing ideal is being read out of custody policy or minimized in favor of more biologically centered goals which recognize both parents' rights to control of the children after divorce. (At 128).Google Scholar

14 Ellman, , 77 Calif L. Rev. at 52 (cited in note 1).Google Scholar

15 Becker, Treatise 19 (cited in note 1). For all commodities to have increasing production functions means that the more time chat women devote to the home, the greater their efficiency in producing additional units (children, cookies?).Google Scholar

16 Id at 18. This means, I assume, chat instead of Mom staying home and caking care of the kids, she will both work and take care of the kids while Dad continues to devote all his energies to increasing his income.Google Scholar

17 Id at 20–21. Becker also argues, however, chat “biological differences probably have wakened the degree of specialization.”Id. at 14.Google Scholar

18 Id. at 23 (citations omitted).Google Scholar

19 See, in particular, Cohen, , 16 J. Leg. Stud. (cited in note I), on this point.Google Scholar

20 Becker, Treatise 14–15.Google Scholar

21 Id. at 28.Google Scholar

22 For a more modern social science treatment of these issues, see Paula England & George Farkas, Households, Employment and Gender: A Social, Economic and Demographic View (New York: Aldine, 1986) (“England & Farkas, Households”), and Fuchs, Women's Quest (cited in note 3).Google Scholar

23 One of the major limitations of Becker's analysis of these changes, however, is that he and the scholars he has influenced describe recent changes almost solely in terms of less specialization between men and women without commenting on the far more dramatic increase in specialization among women. Married mothers who work outside the home hire other women to care for their children. Wives are able to reduce the time spent on housework, not because of any greater contribution from their husbands, but by purchasing far more of their meals and laundry and cleaning services from others. To the extent that there are efficiency gains from specialization, women, over the past two to three decades, have enormously increased specialization among themselves, with only a small decrease in the degree of specialization between husband and wife. When two lawyers marry, the husband's career may be largely unaffected while the wife specializes in finding babysitters, caring for sick children, and being home by 6 P.M. See Fuchs, Women's Quest 73–74.Google Scholar

24 See, in particular, Parkman, No-Fault passim, and Ellman, 77 Calif. L Rev. 47–52 (both cited in note I). Becker himself offers a more complex explanation in which the single most important factor is the increasing income potential of women. Such increased earning power increases the cost of children, reducing fertility and increasing market participation. This in turn decreases the gains from marriage and increases the attractiveness of divorce. Increasing divorce rates, however, accelerate increasing workforce participation and declining specialization in homemaking. The increased investment in the market further increases income potential, beginning the cycle again. Treatise 250.Google Scholar

25 Recognition of human capital contributions as a basis for divorce adjustments is not new, however. Krauskopf, Joan Has long advocated incorporating such considerations into divorce awards. See, in particular, her “Recompense for Financing Spouse's Legal Education: Legal Protection for the Marital Investor in Human Capital,” 28 U. Kun. L. Rev. 379, 391–95 (1980), and “Maintenance: A Decade of Development,” 50 Mo. L. Rev. 259, 261–63 (1985). Indeed, compensation for lost earning capacity may well be the most consistently articulated rationale for alimony in existing case law. See discussion in Margaret F. Brinig & June Carbone, “The Reliance Interest in Marriage and Divorce,” 62 Tul L. Rev. 855, 877–82, 887–89, 902–3.Google Scholar

26 Parkman also proposes what he terms “mutual consent divorce,” which would limit the availability of divorce to cases in which both parties agreed. See discussion infra.Google Scholar

27 Becker, Treatise 227–30 & 251 (cited in note 1).Google Scholar

28 Id. at 245.Google Scholar

29 Id at 245–47. Becker (at 250–51) observes further: Greater labor force participation of women (resulting from an increase in the wage rate, a decline in fertility, and/or an increase in the propensity to divorce) would itself raise the earning power of women and thereby reinforce the effects of economic development. Women invest more in market skills and experiences when they spend a larger fraction of their time at market activities.Google Scholar

30 See Olsen, Frances E., “The Family and the Market,” 96 Hurv. L. Rev 966 (1983), and Williams, , 87 Mich L. Rev. passim (cited in note 9).Google Scholar

31 See Carbone, June & Brinig, Margaret F., “Rethinking Marriage: Feminist Ideology, Economic Change and Divorce Reform,” 65 Tul L. Rev. 953, 1980 (1991). This does not mean, however, that “equality” describes the workplace any better than it does the family. Although women's workforce participation has increased dramatically over the past 30 years, the wage gap remains. Fuchs, Women's Quest 49–57 (cited in note 1). Moreover, while married women now work many more hours outside the home than they once did, men's share of the housework has not increased to any appreciable degree. See, e.g., England, & Farkas, , Households 94–101 (cited in note 22); Parkman, No-Fault 99–101 (cited in note I).Google Scholar

32 Becker, Treatise 93–112 & 245–47; Fuchs, Women's Quest 63–64 (cited in note 3).Google Scholar

33 Fuchs, Women's Quest 84–87. See also Weitzman, The Divorce Revolution (cited in note 6).Google Scholar

34 Fuchs, Women's Quest 104–10.Google Scholar

35 Parkman, No-Fault 2. Ira Ellman embraces a similar argument as justification for “the theory of alimony.” He observes: Whenever spouses have different earning capacities and want to plan rationally as a single economic unit, they will conclude that, where possible, they should shift economic sacrifices from the higher earning spouse to the lower earning spouse, because that shift will increase the income of the marital unit as a whole. If they follow that plan, the lower earning spouse (today most likely the wife) will often be pushed toward the position of the wife in the traditional marriage even if they started out with a different intention. Ellman, , 77 Calif. L. Rev. at 46. Ellman concludes that existing divorce law discourages this “‘rational’ choice of maximizing the marital income,” Reducing the gains from marriage. He notes further that this “restructuring not only reduces total marital income, a loss which the parties presumably share equally, but also reduces the income of the higher earning spouse.”Id. at 47–48.Google Scholar

36 No-Fault at 131–40. “Mutual consent divorce” requires, as a prerequisite for divorce, that both parties agree that the divorce will take place.Google Scholar

37 Id. at 2.Google Scholar

38 Id. at 138.Google Scholar

39 Victor Fuchs, Women's Quest 115, Explains: Supposing that the trends set in motion by women's quest for economic equality have had harmful effects on children, what inferences should be drawn? There is no case for blaming women any more than men. To insist that women continue to accept second-class status is unfair. Furthermore, it seems unlikely that women will abandon their quest, or that fathers will, on average, supply the missing parental input (although there may be significant efforts by some men). Once we recognize the legitimacy of women's quest for economic equality, the problems of children become everyone's concern. Even adults who have no children need to be involved because the country's future depends on the physical and mental health of the next generation.Google Scholar

40 Ellman, , 77 Calif. L Rev. 80. He is particularly concerned about “gender-based differences in the remarriage prospects of divorced men and women,” and concludes that “[a]lthough some remedy is probably necessary, we may conclude that the obligation is society's and not the former husband's.” Id at 81.Google Scholar

41 Id. at 53.Google Scholar

42 Id. at 58, 71. Ellman Arrives at this conclusion, in part, because he concludes that the marital agreement is too indeterminate to support other types of compensation. Id at 32–33. Parkman's mutual consent divorce, on the other hand, requires an agreement, express or implied, to remain married unless the other spouse agrees to the divorce. Parkman proposes making mutual consent a term of all marriage unless the parties provide otherwise. No-Fault 140.Google Scholar

43 Fineman Observes that “the failure to develop a theory of family law around the analytical constructs of ‘need’ and ‘dependency’ has resulted in inequities which plague women in their [in]ability to provide for themselves and their children after divorce” (at 180).Google Scholar

44 Pat Cain, in her review of Fineman's book, asks: Is it always just to take property away from the divorced husband to mitigate the needs of the wife? This question must be answered before we can justify trumping rule equality and the principle of desert with need. Fineman presumes the answer is yes. Although she may well be right, I would prefer a more developed discussion about why her answer is yes. (Emphasis in original). Cain, Patricia, “In Search of Normative Principle for Property Division at Division of Divorce,” 1 Tex. J. Women & Law. 249, 267–68 (1992). See also Blumberg, Grace Ganz, Book Review, 2 UCLA Women's L.J. 101 (1992), Criticizing Fineman's rejection of contribution and her failure to provide a persuasive account of need. Although Fineman does not address Cain's question directly, an answer is implicit in her analysis. Fineman should restate Cain's question to ask not whether it is just to take property from the divorced husband to mitigate the needs of the wife, but whether it is just to take the property to mitigate the needs of the children and the spouse charged with their care (at 180). Rephrased this way, the obvious answer is yes, and the normative principle is the husband's continuing responsibility for the children. What this leaves open is the role of the property division in divorces in which there are no children.Google Scholar

45 Ellman, , 77 Calif. L Rev. at 46–48.Google Scholar

46 Id at 71–74.Google Scholar

47 Fineman argues generally that the economic allocations made after divorce should be organized to ensure the children's well-being (at 180). She recognizes that this will increase the incentives to seek custody and emphasizes that property divisions tied to the children's welfare increase the importance of a clearcut, easily administered custody standard. Id. Nonetheless, she does not consider Mary Becker's call for a return to the maternal presumption. Mary Becker, “Maternal Feelings: Myth, Tabu and Child Custody,” 1 S. Cal. L. & Women's Stud. 133 (1992).Google Scholar

48 For another critique of the human capital approach in these terms, see Mary O'Connell, , “Alimony after No-Fault: A Practice in Search of a Theory,” 23 New Eng. L. Rew. 437, 507–8 (1989).Google Scholar

49 Ellman, , 77 Calif L Rev. at 53, Proposes specifically that “a spouse is entitled to alimony only when he or she has made a marital investment resulting in a postmarriage reduction in earning capacity.”.Google Scholar

50 See Schwartz, Felice, “Management, Women and the New Facts of Life,” 89 Harv. Bus. Rev 65 (1988).Google Scholar

51 See my critique of this proposal in 43 Vand. L Rev. at 1463 (cited in note 2).Google Scholar

52 Parkman, No-Fault 139, Acknowledges the problems for the spouse “driven out” of a marriage rather than “wanting out” of marriage, but concludes that it “is often difficult for anyone, including the spouses and judges, to separate divorces into these two classes.” Nonetheless, 1 find it difficult to imagine mutual consent divorce in practice without (1) the addition of some fault categories; (2) a separation period as an additional basis for divorce; and/or (3) independent procedures for dealing with the problem of abuse.Google Scholar

53 Fuchs, , Women's Quest 68 (cited in note 3). For a systematic examination of women's disadvantages in bargaining, see Carol Rose, “Women and Property: Gaining and Losing Ground,” 78 Va. L. Rev. 421 (1992). See also Trina Grillo, “The Mediation Alternative: Process Dangers for Women,” 100 Yale L. J. 1545 (1991).Google Scholar

54 Indeed, in Fineman's Alternative visions, fathers largely disappear from view. With adequate societal support for child care, education, nutrition, and other basic needs, women would become less dependent on men's superior earning power. At the same time, a renewed emphasis on nurturing in a winner-take-all custody system would reemphasize the primacy of mothering. Finally, in a system of financial allocations reflective of postdivorce need, the largest share of the family resources should follow the children.Google Scholar

Under such a system, men should become more reluctant to enter marriage and women more willing to bear children outside marriage. One would expect Fineman to insist that fathers' financial responsibility for children and their caretakers should not depend on marriage. Such a system, which Fineman only begins to sketch in this book, would have dramatic and perhaps unforeseeable consequences for the ways in which society provides for children and the ways in which men and women interact.Google Scholar

55 As Carol Sanger observes: Motherhood is a central but confusing icon within our social structure. It is at once dominating and dominated, much as mothers are both revered and regulated. The reverence and regulation are not so much in conflict as in league. The rules remind women of how to behave in order to stay revered. This reverence is something more than a fan club for mothers. It matters in such practical and concrete ways as keeping one's children, having credibility in court, getting promoted and so on. Sanger, 1 Rev. L & Women's Stud. 1303–4 (cited in note 6).Google Scholar

56 One can imagine Dan Quayle's reaction to proposals intended to make the world more comfortable for single mother Murphy Brown.Google Scholar