Duke University School of Law
The question for this issue is gender issues in the American Law Institute’s Principles of the Law of Family Dissolution. Overall, the Principles are an impressive effort to create clarity and coherence, given the disorganized and evolving state of family law. This commentary raises a few questions about the Principles’ treatment of nonfinancial issues, and suggests that this treatment should raise concerns about women’s interests upon divorce. First, I will briefly review the ALI’s position on nonfinancial matters. Second, I will discuss why the limitation to financial losses should matter to women; that is, I will investigate the costs of excluding nonfinancial losses. Finally, I will consider the two reasons given for this limitation in the Principles’ section on compensatory losses, where the issue is most directly addressed. Those reasons are incommensurability (or the problem of valuation), and avoiding fault determinations. Neither is sufficient to sustain the exclusion of nonfinancial matters, once their importance is understood.
Katharine B. Silbaugh,
Gender and Nonfinancial Matters in the ALI Principles of the Law of Family Dissolution
Duke Journal of Gender Law & Policy
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1672