Marriage In Fine Art

Benjamin A. Templin, Thomas Jefferson School of Law, has published "The Marriage Contract in Fine Art," in volume 30 of the Northern Illinois University Law Review (2009). Here is the abstract.

This paper studies the depiction of the marriage contract in Dutch, French and English genre paintings from the 14th to 18th centuries. Increasingly, scholars have recognized that visual imagery influences the development of legal norms and institutions. During the period studied several genre artists produced paintings that dealt with themes that were central to the issues surrounding the marriage laws, such as the rights of women or whether marriage is a sacrament or a contract. Interestingly, many of the themes depicted in the collective body of marriage contract art echoes and amplifies the issues surrounding the rights of women and the scope of the marriage contract in the writings of John Locke and Jean-Jacques Rousseau. Although it is impossible to measure the impact this collective body of work had on changing the law, the artistic and legal themes expressed in these paintings illustrates the “pre-formative” role of art in terms of signaling where change may occur in our legal norms and institutions. This analysis of the depiction of the formation of the marriage contract may also be of some interest to family law scholars given the renewed interest in the historical foundation of marriage law as a result of the debate over same-sex marriage. The analysis of visual representation of the marriage contract yields another data point for marriage scholars researching the history and origin of society’s conception of marriage as either a contract or a sacrament.

Download the paper from SSRN here.

Writing Domestic Violence Scholarship

Lively discussion between Nancy Lemon and Christina Hoff Sommers over Myths or Facts in Feminist Scholarship? in The Chronicle Review.

Rhetoric in Child Custody Decision Making

Linda L. Berger, Mercer University School of Law, has published "How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes." Here is the abstract.

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, the article's aim is to help advocates make room for difference and diversity in the lives of families.

The rhetorical analysis indicates that the best interests of the child standard fails to explain child custody outcomes, and it suggests that the cognitive setting for custody disputes - cluttered with outmoded metaphors, simplistic images, and unexamined narratives - interferes with the ability of judges to attend to complex and radical transformations of parent and child relationships. The article proposes that practicing lawyers and scholars use rhetorical analysis first to uncover the symbols and stories that affect judicial decision making and then to construct arguments that may overcome deeply rooted constraints, help individual clients, and persuade policy makers.

Download the paper from SSRN here.