California Western School of Law

Law Review, California Western

California Western Law Review 
Volume 23 Number 1 Article 10 
1986 
Books in Brief 
California Western Law Review 
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Recommended Citation 
Law Review, California Western (1986) "Books in Brief," California Western Law Review: Vol. 23 : No. 1 , 
Article 10. 
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information, please contact alm@cwsl.edu. 
BOOKS IN BRIEF
A LESSER LIFE: THE MYTH OF WOMEN'S LIBERATION IN
AMERICA. By Sylvia Ann Hewlett. William Morrow & Com-
pany, Inc.: New York, N.Y. 1986. Pp. 461. $17.95. This book
does away with the favorite myths in America about the "liber-
ated women" and reveals the fact that women today, regardless
of what role they play, have little economic security. The author
connects this reality to unemployment rates and high divorce
rates among other factors. Hewlett explores the economics of
divorce; the women's movement; the "aberrant fifties;" and fi-
nally political possibilities for changing the economic realities of
women in today's society. This scholarly exploration together
with Hewlett's own personal insight adds strength to the conclu-
sions she draws and the solutions she proposes.
DANGEROUS OFFENDERS: THE ELUSIVE TARGET OF JUSTICE. By
Mark H. Moore, Susan R. Estrich, Daniel McGillis and Wil-
liam Spelman. Harvard University Press: Cambridge, Massa-
chusetts. 1984. Pp. 252. No price given. "The worst 1 percent
of offenders commit crimes at such a high rate (more than fifty
serious offenses per year) that simply incapacitating them
would justify their imprisonment, even if there were no other
justification such as deterrence, rehabilitation, or simple jus-
tice." Recent studies indicate that we can distinguish high rate
offenders on the basis of personal characteristics. The urge is to
separate these offenders from society by imposing longer prison
terms. Thus, every aspect of the criminal justice system centers
on these "career criminals." Consequently, the authors of this
book concentrate on the general issues. that arise from this focus
on high rate offenders. Then they address more specific issues
about how this focus might be created and approached from
within the criminal justice system. The result is guidance to
those involved in the criminal justice system on how to deal
with this selective approach to the dangerous offender.
1
Law Review: Books in Brief
Published by CWSL Scholarly Commons, 1986
BOOKS IN BRIEF
SENTENCING YOUNG PEOPLE: WHAT WENT WRONG WITH THE
CRIMINAL JUSTICE ACT OF 1982. By Elizabeth Burney. Gower
Publishing Co.: Brookfield, VT. 1985. Pp. 103. $27.95. The pur-
pose of the Criminal Justice Act of 1982 was to make it more
difficult for courts to give custodial sentences to young offend-
ers. The author examines this new statutory framework by stud-
ying the problems that twelve courts have encountered in apply-
ing this law. The author uses these courts as a foundation for
both drawing conclusions about the statute and making sugges-
tions for future use of the statute.
The thrust behind the author's purpose for writing this book is
the apparent ineffectiveness of the Act's provisions aimed at
avoiding sentencing for young people. The Act's shortcomings.
are indicated by the discovery that magistrate courts are "fail-
ing properly to observe the statutory procedures intended to
make custody a genuine last resort for young offenders." This
piece of evidence, among others that are revealed by the study,
crystalize the author's thesis that the Act's lack of effectiveness
are founded in the amibivalent attitude toward these offenders
of society and the criminal justice system as well as their hesi-
tancy to use new ideas.
1986]
2
California Western Law Review, Vol. 23 [1986], No. 1, Art. 10
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English

Books in Brief

Eisenstein, Laurence Jay

Choice of Law Regarding Private Activities in Outer Space: A Suggested Approach

Lacy, Paul E.

Implications of Summa Corporation on the Property Rights of the Eastern American Indians

Carroll, Douglas E.

Parental Liability for Preconception Negligence: Do Parents Owe a Legal Duty to Their Potential Children?

Donnan, David L.

Jurisdiction to Expropriate and the Shell Game of Intengible Assets

This Article first explores the scope of the problem of withholding lifesaving treatment from seriously impaired infants. Next, the Article examines the interests involved in decisions to withhold treatment and the rationales for them. It contends that there are limitations on parental child-rearing rights and suggests standards to define when treatment may be withheld. The Article then reviews recent efforts to protect disabled newborns and points out a shift in the focus of these efforts toward a reliance on child abuse and neglect laws. Next, the Article surveys the development of federal and state child abuse and neglect statutes. The Article then considers the new federal Child Abuse Amendments and analyzes the ways in which definitional and functional problems impede statutory efforts to protect against improper withholding of treatment

Smith, Steven R.

Disabled Newborns and the Federal Child Abuse Amendments: Tenuous Protection

Humphrey, Juliana B.

Preparing the World for the Child: California\u27s New Child Sexual Abuse Law

Eden,, Philip, Reviewer

California Western Law Review 
Volume 23 Number 1 Article 9 
1986 
BOOK REVIEW: The Divorce Revolution -- The Unexpected Social 
and Economic Consequences for Women and Children in 
America. By Lenore J. Weitzman 
Philip Eden, Reviewer 
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Recommended Citation 
Eden,, Philip Reviewer (1986) "BOOK REVIEW: The Divorce Revolution -- The Unexpected Social and 
Economic Consequences for Women and Children in America. By Lenore J. Weitzman," California Western 
Law Review: Vol. 23 : No. 1 , Article 9. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol23/iss1/9 
This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for 
inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more 
information, please contact alm@cwsl.edu. 
BOOK REVIEW
THE DIVORCE REVOLUTION-THE UNEXPECTED SOCIAL AND EC-
ONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN
AMERICA. By Lenore J. Weitzman, New York. The Free Press:
1985. Pp. 504. $19.95.
Reviewed by Philip Eden*
This book is must reading for all attorneys and judges in family
law because it describes how what was originally intended to be a
reform of divorce law has become instead an engine for the vic-
timization and impoverishment of women and children on a vast
scale.
I. THE DIVORCE REVOLUTION
California pioneered the movement to eliminate fault as the ba-
sis of divorce in 1970; within a decade, all but two states followed
suit. Before this, the traditional role of the courts was to award
alimony to the "innocent party." This changed and the no-fault
law provides two major bases for alimony awards: the wife's em-
ployability and the duration of the marriage. Instead of the pre-
sumption that the wife was dependent, the new law assumes that
she is independent and employable. The new focus is on helping
the divorcee to acquire new skills or to update old ones so that she
can become self-sufficient. The only exception is in the case of a
long marriage where a woman might be incapable of self-support
or too old to be retrained.'
Weitzman stresses the fact that most of the leaders of this re-
form movement had the best of intentions. They believed they
were ending traumatic and acrimonious litigation over fault and
the award of alimony as a moral reward or punishment for past
conduct. They believed they were recognizing the growing equal-
ity of the sexes.
* Author of ESTIMATING CHILD AND SPOUSAL SUPPORT, ESTIMATING HUMAN LIFE
VALUES, all articles in Am. JUR. PROOF OF FACTS on forensic Economics and Statistics
from 1965-1986; the economist expert in In re Sullivan, 134 Cal. App. 3d 634, 184 Cal.
Rptr. 796 (1982) and Todd v. Todd, 272 Cal. App. 2d 786, 78 Cal. Rptr. 131 (1969), the
California cases in which marital investment in human capital was raised; president of
Associated Economic and Statistical Consultants, Berkeley, California since 1963.
1. L. WEITZMAN. THE DIVORCE REVOLUTION 145-50 (1985).
1
Eden,: BOOK REVIEW: The Divorce Revolution -- The Unexpected Social and
Published by CWSL Scholarly Commons, 1986
BOOK REVIEW
II. THE UNEXPECTED CONSEQUENCES
The bulk of this book is devoted to a description of the unex-
pected consequences of this change in the divorce laws. The re-
search underlying the book is supported by a variety of agencies
spread over a ten-year period in California. This research includes
systematic random samples of court records, interviews with mem-
bers of the matrimonial bar, interviews with superior court judges
and commissioners who hear family law cases and interviews with
divorced men and women. Here are some examples of what
Weitzman found:
About five out of six divorced women were not awarded any
alimony in 1978, and over half of the women in longer marriages
received none.2 Only thirteen percent of the women with pre-
school children received spousal support in 1978.3 Typically, the
husband retained two-thirds of his income after divorce for him-
self, while the wife and children (usually a total of three people)
received only one-third.4 A similar unequal division occurred when
the community property was "equally divided:" The husband, one
person, received one-half, and the wife and children, usually three
persons, received one-half.5 However, the main form of commu-
nity property in most marriages, the earning capacity of the hus-
band, was and is not deemed to be property and thus kept entirely
by the husband alone. This, notes Weitzman trenchantly, "is like
promising to divide the family jewels equally, but allowing the
husband to keep the diamonds."6 Child support awards were typi-
cally less than half of the costs of raising children7 and were less
than the welfare levels as provided by Aid to Families with De-
pendent Children. 8 About one year after divorce, the men had in-
creased their standard of living by forty-two percent, while the
divorced women suffered a seventy-three percent decline in their
standard of living.9 Some of the most heart-rending declines oc-
curred among middle-class housewives with longer marriages.10
All of this is bad enough, but the picture is even more scandal-
ous because "less than half of the non custodial fathers comply
with court orders."11 "Current estimates of noncompliance with
2. Id. at 33, 187.
3. Id. at 34, 185.
4. Id. at 34, 266.
5. Id. at 350.
6. Id. at 388.
7. Id. at 186.
8. Id. at 271.
9. Id. at 338-39.
10. Id. at 339.
11. Id. at 192.
1986]
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CALIFORNIA WESTERN LAW REVIEW
child support orders range from sixty to eighty percent." 2 So, we
have a picture of adequate awards made to only a small fraction
of these women and children, and for this small fraction, the
courts often do not enforce payment. The result is a major trag-
edy. More than half of the poor families in the United States are
headed by a single mother.1 s Almost fourteen percent of the di-
vorced women had to go on welfare within the first year of their
divorces.1 4 All of us, as taxpayers, are therefore subsidizing the
new divorce- system, irresponsible and delinquent husbands and
the gross failure of the courts to enforce their own orders.
What can we say to dispute Margaret Heckler, Secretary of the
Department of Health and Community Services, when she states:
I ... feel very strongly the destitution, the desperation, and the
simple human suffering of women and children who were not
receiving child support payments legally owed them. Frankly it
offends my conscience because I believe that a parent's first re-
sponsibility is to reasonably provide for the upbringing and wel-
fare of his or her children. To deny that responsibility is a cow-
ardly act.
Fifteen million children live in homes without their fathers.
Only 35 percent of these households receive child support and
nearly one-third live in poverty. Children deserve to be sup-
ported by both of their parents. For the sake of America's chil-
dren, we must put an end to what has become a national
disgrace. 15
It might be noted parenthetically that total enforcement of pay-
ments would hardly solve the problem since few wives receive
awards and most awards are inadequate. Enforcement is therefore
only a small part of the problem.
We have created a two-tier society, with an underclass of im-
poverished women and children at the bottom of the economic
ladder.16 Weitzman attributes this primarily to the Divorce
Revolution.
Since the no-fault divorce reform was primarily the work of
lawyers and judges, we must now confront these unexpected re-
sults and ask ourselves "What have we done to our women and
children?"
12. Id. at 321.
13. Id. at 350.
14. Id. at 204.
15. Id. at 262-63 (quoting Margaret Heckler, Secretary of U.S. Department of
Health and Human Services).
16. Id. at 355.
[Vol. 23
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Eden,: BOOK REVIEW: The Divorce Revolution -- The Unexpected Social and
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BOOK REVIEW
III. THE SIGNIFICANCE OF HER FINDINGS
There is a growing awareness of Weitzman's findings by other
writers in this and associated fields,' 7 for example, with regard to
Weitzman's basic conclusion that to treat persons as legal equals
when they are economically unequal makes a mockery of justice
and is a facade for worsening the inequality, 8 as well as the con-
cept that the earning capacity of a person is a form of human
capital, and as such is one of the new forms of commnity prop-
erty that should be equally divided at divorce. These ideas have
arisen sharply as a result of several cases in which the wife fi-
nanced the husband's professional education and asked for a fair
share of the enhanced capital value of this community asset at the
time of divorce.' 9 Despite this, under California law, human capi-
tal is still deemed not to be divisible property, let alone commu-
nity property, and remains entirely in the hands of the husband.2
Weitzman's study also corroborates the conclusion of Robert N.
Bellah and a team of sociologists in their celebrated book, Habits
of the Heart. Bellah and his associates believe that self-interest
has become a "cancerous growth."' Weitzman feels that the
change in our divorce laws and the manner in which they have
been implemented are parts of this cancerous growth in self inter-
est, self-gratification and selfishness, and that it represents a fur-
ther step toward unbridled and irresponsible individualism at the
expense of community interest and the family.22
IV. WHAT CAN WE DO Now TO CORRECT THIS DEPLORABLE
SITUATION?
Weitzman's recommendations flow logically and inexorably
from her findings. First and foremost is her plea for equality of
17. See infra notes 19, 21, and 25.
18. L. WEITZMAN, supra note 1, at 361-62.
19. These cases are described in Krauskopf, Recompense for Financing Spouse's Ed-
ucation: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REv.
379. 399-416 (1980). Krauskopf is particularly clear in placing these two concepts in the
forefront of her analysis. For additioal citations, see Amicus Brief of Los Angeles Women
Lawyers, In re Sullivan, 134 Cal. App. 3d 634, 184 Cal. Rptr. 796 (1982). For a descrip-
tion of the history of human capital, see Eden & Herzog, Marital Investment in Educa-
tion, What is Equitable?, 13 COMMUNITY PROP. JOUR. 14 (Apr. 1986); P. EDEN, ESTIMAT-
ING HUMAN LIFE VALUES 3-7 (1st ed. 1975). For a more comprehensive account of this
history, see Kiker, The Historical Roots of the Concept of Human Capital, J. PoL EcoN.
48 (Oct. 1966). See also Bruch, The Definition and Division of Martial Property in Cali-
fornia: Towards Parity and Simplicity, 33 HASTINGS LJ. 771, 854 (1982). To review this
situation in a larger context, see S. HEWLETT, A LESSER LIFE: THE MYTH OF WOMEN'S
LIBERATION IN AMERICA 51-139 (1986).
20. CAL CIV. CODE § 4800.3 (West 1985).
21. R. BELLAH, HABITS OF THE HEART (1985).
22. L. WEITZMAN, supra note 1, at 374-77.
19861
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CALIFORNIA WESTERN LAW REVIEW
treatment. The children particularly should have more support
and there should be effective enforcement of court awards. If
there is to be no fault divorce, there should be no punishment or
rewards. Post-divorce income should be shared equitably so that
both households have the same standard of living. The way of do-
ing this scientifically and objectively has been available since
1977.23
To achieve this, all of what Weitzman calls "career assets"
(earning capacity, goodwill value of a business or profession, med-
ical and hospital insurance and other benefits and entitlements)
should be considered to be community property and divided equi-
tably. Further, the family home should be awarded to the custo-
dial spouse, or at the very least, its sale should be delayed. The
forced sale of the home in order to divide the community property
immediately after divorce throws an impossible burden on the wo-
man and children.
There must also be special provisions to care for the divorced
wives in older marriages. While they are supposed to receive spe-
cial consideration under the existing law, Weitzman finds that in
practice they are not afforded such consideration.
Weitzman illustrates how backward and appalling the condition
is in our country by comparing us to Sweden where courts award
women and children ninety percent of their pre-divorce standards
of living. The state pays delinquent alimony and child support and
takes upon itself the problem of collection of the delinquent
amounts. 2'
V. WOMEN AND CHILDREN LAST
2 5
When a ship goes down, the rule is "women and children first."
A divorce is like a ship going down. The principle underlying
Weitzman's work is: How civilized can we claim to be when, in
our divorce laws and practices, we change this to "women and
children last"? Have we abandoned all moral and religious teach-
ing and traditions?
This book is an outstanding example of fine academic scholar-
ship applied to a problem of profound and immediate importance.
It is a credit to Stanford University where Weitzman was an As-
23. See P. EDEN, supra note 19.
24. L. WEITZMAN, supra note 1, at 395.
25. R. SIDEL, WOMEN AND CHILDREN LAST: THE PLIGHT OF POOR WOMEN IN AF-
FLUENT AMERICA (1986). Since I thought of the same title before I was aware of her book
I feel I can use it in this review. It is an example of two people independently arriving at
the same conclusion.
[Vol. 23
5
Eden,: BOOK REVIEW: The Divorce Revolution -- The Unexpected Social and
Published by CWSL Scholarly Commons, 1986
BOOK REVIEW
sociate Professor of Sociology when she wrote this book.26 Judges
and attorneys in family law have a special responsiblity to read it
and to weigh her findings very carefully.
26. Professor Weitzman presently teaches at Harvard University.
1986]
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BOOK REVIEW: The Divorce Revolution -- The Unexpected Social and Economic Consequences for Women and Children in America. By Lenore J. Weitzman

Todd, Christopher W.

Good Faith Settlements: The Inequitable Result of the Evolving Definition of  Equity

California Western Law Review 
Volume 23 Number 1 Article 1 
1986 
Table of Contents 
California Western Law Review 
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Recommended Citation 
Law Review, California Western (1986) "Table of Contents," California Western Law Review: Vol. 23 : No. 1 
, Article 1. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol23/iss1/1 
This Prefatory Matter is brought to you for free and open access by CWSL Scholarly Commons. It has been 
accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For 
more information, please contact alm@cwsl.edu. 
CALIFORNIA WESTERN LAW REVIEW
VOLUME 23 FALL 1986 NUMBER 1
CONTENTS
ARTICLES
Problems in the Use of Trusts for Funding
Private Annuities ................ Robert 0. Loftis, Jr. 1
The Constitutionality of Continuing Residency
Requirements for Local Government
Employees: A Second Look ............ Ross S. Myers 24
SCHOLARLY OPINION
Client Identity and the Attorney-Client Privilege:
The Tax Attack Continues ......... Craig J. Langstraat 42
COMMENTS
Preparing the World for the Child: California's
New Child Sexual Abuse Law .... Juliana B. Humphrey 52
Unrestricted Private Employee Drug Testing
Programs: An Invasion of the
Workers' Right to Privacy ............ Steven E. Lake 72
NOTES
At Last, Federal Wage and Overtime Protection for
State and Municipal Employees: The F.L.S.A.
After Garcia v. San Antonio Metropolitan
Transit Authority ..................... John G. Kiwan 105
The Cumis Decision-What has it Done to
Insurance Policies? ... . . . . . . . . . . . . . Peter B. Lightstone 125
BOOK REVIEW ............................... Philip Eden 154
BOOKS IN BRIEF ........................................ 160
BOOKS RECEIVED ...................................... 162
1
Law Review: Table of Contents
Published by CWSL Scholarly Commons, 1986
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0 1986 by California Western School of Law
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Books in Brief

Choice of Law Regarding Private Activities in Outer Space: A Suggested Approach

Implications of Summa Corporation on the Property Rights of the Eastern American Indians

Parental Liability for Preconception Negligence: Do Parents Owe a Legal Duty to Their Potential Children?

Jurisdiction to Expropriate and the Shell Game of Intengible Assets

Disabled Newborns and the Federal Child Abuse Amendments: Tenuous Protection

Preparing the World for the Child: California\u27s New Child Sexual Abuse Law

BOOK REVIEW: The Divorce Revolution -- The Unexpected Social and Economic Consequences for Women and Children in America. By Lenore J. Weitzman

Good Faith Settlements: The Inequitable Result of the Evolving Definition of Equity

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