Mae Kuykendall is a professor of law at Michigan State University where she teaches constitutional law, mergers and acquisitions, and seminars on various subjects, including judicial biography, corporate law and policy, and constitutional structure. In fall 2012, she taught Family Law and Marriage Theory as a visiting professor at the University of Michigan School of Law.
Professor Kuykendall received a PhD in political science, with highest honors, from the University of North Carolina. She received her JD, cum laude, from Harvard Law School. After attending law school, Professor Kuykendall clerked for the Hon. Joseph W. Hatchett on the U.S. Court of Appeals for the 11th Circuit. Prior to joining the law faculty of Michigan State, she practiced law in New York City with the firm of Debevoise & Plimpton, where she primarily worked in private placements of insurance company funds.
Spindle Law: What led to you to become a lawyer:
Mae Kuykendall: Being born in 1947 in South Texas and being a girl, one wouldn’t really anticipate becoming a lawyer. I was born in relatively modest circumstances and was surrounded by real poverty.
I went to the University of Houston, then a commuter school, and, as I was valedictorian of my high school, I could attend the first year for free. I majored in political science. Though the subject was arid as taught, it seemed more practical than English, which would have been my preference.
Then the question was: “Now what am I going to do when I graduate?” I used to look at the want ads in the Houston Post and, back then, the want ads were organized by whether employers were looking for female or male applicants. For women, nearly all the job offers were for secretaries or clerks in a drugstore. High school and elementary school teachers were jobs women held. So, at that time, I felt there was nothing for me in South Texas. I had done the Washington Semester at American University during my last semester at the University of Houston. That was the first time I’d ever left Texas. So when I graduated, I decided to head back East. I attended the University of North Carolina, where I received my PhD.
My first non-academic job after that was at the National Center for State Courts which was founded with an idea of court reform and modernization. It was inspired by a conference held in Williamsburg, Virginia, about court reform. I helped establish the first office for the National Center, in Williamsburg. I stayed there for six years, rose through the ranks, and became part of management.
While at the National Center, I traveled all over Virginia in a Fiat 124 Special, often with Carrington, my dog, to visit the state courts, including all of the smaller ones, to review – and modernize – their docketing systems. Doing this gave me a really deep connection and sense of history about lawyers, judges, and the people who go to court.
A quote about Abraham Lincoln is relevant to this time period. Writing about the military genius of Abraham Lincoln, a General who was a contemporary of Lincoln’s captured the way Lincoln developed as a younger man: “To all appearances these were lean years, but there are those who believe that they were not without fruit. Lincoln was studying that very complex thing which may be called the soul of the American nation, learning to love it and serve it, fitting himself for a time when he could come to control it.” At that time, I was doing something a little like that – absorbing “the soul of the American nation” – I was all over Virginia, in little towns, visiting and spending time in all the state courthouses, soaking in this almost direct connection to the 19th Century and even the 18th. Some of the courts had docket books, which were large ledger books with several pages for a letter of the alphabet, and with a small number of entries on those pages, allowing space to insert new entries in alphabetic order, and dating back to the very beginnings of the county. I also developed caseload reporting systems for Virginia, managed the making of a juror orientation movie, and helped design a jury system for the Virgin Islands.
After that, I moved to the Federal Justice Research Program, which was part of the Office for Improvements in the Administration of Justice and, as such, directly attached to the Attorney General’s Office. It occurred to me, while I was there, that it really didn’t make sense for me to go to the Government to think. So it was a bit of a mistaken turn. When President Reagan was elected, the new team called us right away to announce that they were abolishing our jobs. Most of the lawyers were retained in other positions at the DoJ but, since I wasn’t yet a lawyer, they moved me to the Bureau of Justice Statistics. I was trapped in a quantitative world doing a job I would never have gone to Washington to do. I prefer words.
I was increasingly around lawyers and judges. So, when I went to Harvard Law School, I found myself reading a lot of cases written by people whom I had actually met. This was a bit of a distraction because I, as a political scientist, and someone who’d met these people, didn’t totally focus on viewing the cases as a logical construct but was interested in the whole context of who wrote these things and what state the opinions came from. Incidentally, I am now teaching a seminar called Judicial Biography, which allows me to investigate, with my students, the personal factor in judging and opinion writing and forms of judicial expression.
My wish to become a lawyer was a gradual process and because I was a political scientist, there was some element of being inspired to understand more deeply the world of lawyering and opinion-writing and law-making.
SL: After law school, and after clerking, you worked at Debevoise & Plimpton. How was that experience?
MK: I can’t claim that I enjoyed my time at Debevoise all that much in terms of the personal associations, except I did enjoy learning the needs of multi-national corporations. One reason that I wanted to do it was to gain a deeper sense of how that part of the world works. It fits with my background in political science, which is the study of organizations: of the law firm and, from a business perspective, of corporations.
At the time that I joined the firm, it was known as and prided itself on being a First Amendment firm. The tobacco companies had created a First Amendment foundation, to crack down on regulations restricting cigarette advertising as an assault on First Amendment rights. Debevoise asked me to work on that but I refused.
Instead, I worked on private placements: one of the firm’s specialties. The first year I was there, I worked on a project involving a huge Mexican steel company. I ended up spending a lot of time in Mexico. That’s one of the things that happens to associates, they stay on a project for a long time, which can reduce their exposure to the variety of legal problems. These big firms do tend to be somewhat specialized and end up narrowing their lawyers. The thing I have never done is to be a lawyer who deals with people who just walk in the door with all sorts of problems seeking help.
SL: What led you to leave Debevoise for academia?
MK: I guess I was at Debevoise at the tail end of the legal boom when money was just like water. Everyone had always said that I should be a legal academic. And, I had done some political science teaching. I was forty-five when I left Debevoise which, as an age to make a switch, is pretty hazardous. I got lucky.
SL: You recently taught family law. How was that experience?
MK: The past semester is the first time I ever taught family law. I have written a lot about marriage but had never gone systematically through all the materials relating to family law. Lawyers try to get rid of the complexity of matters by focusing on discrete issues that can be presented on the assumption that a shared framework allows logic to be applied to familiar categories. I try to probe the assumptions that lie behind the framing of questions. Sometimes that can make the teaching a little theoretical for the students – although I think they indulged me – but I did keep going back to the black letter law, too. A good lawyer can reframe issues, but a good lawyer must also master the existing categories.
SL: You’ve written a lot about marriage and you recently taught a marriage theory seminar. In the course description, you cite differing perspectives on marriage: “…marriage is obsolete, marriage is dangerous and oppressive, marriage is valuable and should be a matter of equal rights, the state should get out of the marriage business, and marriage is an institution with a core meaning tied to reproduction.” How did you and your students approach the questions in this seminar and what themes emerged from your work?
MK: Marriage is an area of incomprehensibility and those perspectives are obviously not compatible. It’s almost as if they were a Rohrschach Test. There is no theory of marriage that is really controlling even in state court cases because different state courts will often come down on opposite sides of the same question. For example, regarding cohabitation, one court will say that cohabitation is enough like marriage that, when the cohabitation ends, it’s not fair for one party to take advantage of another person and to walk away as if there were never any common undertaking between the parties. While another court will say that we cannot validate cohabitation because then it would dilute marriage’s prominence as the preferred model for people to have an intimate relationship. So the second court won’t want to say that a party can have the benefits of marriage without marrying. They come out on the exact opposite side. It’s not as if there’s a provable “right answer.” It’s a puzzle.
Furthermore, within marriage, people marry on the basis of many different understandings and yet the law tries to have one template for sorting out the problems when the marriage doesn’t work out. On one side of the spectrum, there are traditional marriages that last forty years where the woman never had her own personal capital and she’s left with nothing when the marriage ends; and, on the other, there are marriages of young folks that last maybe five years, where both parties had jobs, and they entered the marriage with the understanding that marriages don’t always last. There is this huge range. The law does not have a 100 per cent clear answer how to address this diversity.
The Supreme Court has no coherent theory of marriage because it never adjudicates anything really relating to marriage. There’s a doctrine, that the Supreme Court devised in the middle 1800s, that there is no federal jurisdiction over divorce cases. So I asked my class: “Suppose you have a marriage and the parties to the marriage don’t live in the same state any more. The husband is very well-connected in a very small state – his father is a major political figure with massive power everywhere in the state – and the wife, in order to escape the marriage and the power of her husband’s family, has gone to a different state. Can she go to federal court under diversity jurisdiction and file for divorce?” All the students intuitively knew she couldn’t but they couldn’t say why. The answer was, the Supreme Court said so in a 19th Century case rejecting jurisdiction over divorce. What the Supreme Court has said in the 20th Century is the reasoning in that prior case is dubious but it’s so long-standing a precedent that we’re just going to stick with it. The point is that the federal courts, because they disclaim divorce jurisdiction under diversity, have no direct involvement with sorting through the types of problems that arise in marriage. The only actual involvement that state courts have is in the ending of a marriage when it doesn’t work. The courts are still working with a gender template that’s underlying marriage, even if they re-state a rule that used to be gendered but try to translate it to an ostensibly gender-neutral form.
It used to be for a long time, after the 19th Century, that the husband owned the children. In the early 20th Century, courts started saying that there was a maternal presumption about custody. So what is it now? If it’s not a joint custody presumption, then the presumption favors the primary caretaker. But who is that? Well, that’s the mother. It’s essentially a pre-textual cover for the maternal presumption in an allegedly gender-free world.
One alternative, that marriage should be a private contractual matter and states should back out of it, is foolish, in my view, because contracts are fundamentally state-enforced obligations.
SL: Last year, you wrote an Op-Ed in the New York Times, “A Way Out of the Same-Sex Marriage Mess” in which you argued that “[t]he Constitution allows for creative solutions to seemingly intractable conflicts” in support of the proposition that the Supreme Court “should hold that while states may refuse to authorize same-sex marriages, they may not void — that is, refuse to recognize — gay marriages lawfully conducted in other states.” Would you expand a little further on this proposal?
MK: The Supreme Court should really not mandate that there has to be same-sex marriage. The marriage licensing laws of the states need to be re-written by legislatures to include same-sex marriage precisely because the Supreme Court has no theory of marriage. All the Court does when it looks at marriage is sort it out into the individual rights of the spouses, and individual rights always are the prevailing deciding point about marriage for the Court. When the Supreme Court considers rights, it’s always as the rights of individuals and never those of the collective or group. Even with corporations, the Court broke it down to say that corporations consist of people and these people have First Amendment rights. In that case, the left wing wants to say: “No, it’s an institution and the meaning of that institution is that it can’t really be a citizen, it can’t really have the rights of individuals.” But, the Court says: “No, we’re looking at the individual rights of the participants.” With marriage, the Supreme Court always trumps the notion of the group with that of the individual.
The Supreme Court needs to be agnostic about the legal status of marriage because it has no expertise whatsoever on the topic but it should be not agnostic about the fact that the states have to recognize a legal status that other states have created. Indeed, the one thing we know is that marriage has extremely deep importance to people both practically and for its expressive value. Therefore, let’s continue to make a bow to federalism in the sense that each state gets to decide which marriages they bless at the beginning. The Supreme Court is not competent to tell states how to write their marriage licensing laws but it is competent to impose on states the discipline that they cannot refuse to recognize a legal status that other states are creating. Right now, the rules are too arbitrary about what states will and will not recognize and, as a result, the patterns of non-recognition are unconstitutional and unreasonable. Some states claim that there is a policy interest in maintaining their view of marriage and, in order to do that, they have to refuse to recognize certain marriages that are against their policy on marriage. What I am saying is that they can do enough about advancing their policy views by organizing their marriage licensing law to make a normative statement but it’s unreasonable and it’s too much of a violation of the norm of equality to interfere with a legal status that other states are creating.
Yes, states have policy interests in not recognizing some marriages. We could still say that there is a policy interest in not recognizing polygamist marriages because, so far, there’s absolutely no support for it in the United States as a legal status. That’s another way of getting away from the slippery slope, when people will say if the Supreme Court says you have to have same-sex marriage because of individual rights why wouldn’t that mean we have to have polygamist marriages. My answer would be that there is actually a grain of truth in there: because, as I said, states redefine marriage every day. It is true that when you alter the traditional gender template of marriage, there’s a gradual redefinition, so to the extent that the Supreme Court gets involved in marriage’s redefinition on the basis of individual rights, why couldn’t they gradually say we are not being fair to polygamy too? My point would be: let the Supreme Court stay agnostic about the core meaning of the institution and require states to be more respectful than they are now of a legal status that is common in the United States. If polygamy becomes a legal status common in the United States then we’re in a new world. Until that happens, our premises are substantially intact about the fact that marriage is a mystery, the states are really the only ones working through the mystery, and the way to handle it is simply to do an uptick on the obligations of states to recognize a common legal status which they really have no reason not to recognize.
The Supreme Court should stay agnostic about the entity of marriage. They have no expertise about defining entities. But, within their agnosticism, they should also say it is an important legal status: “We know how important it is to people, even if we don’t quite understand what it is.” And, therefore, the states have to respect fully the same-sex marriages created by other states. I see that as a nifty solution because it does not enmesh the Court in complicated family law that is incomprehensible and is not going to disappear.
SL: You and Michigan State law professor Adam Candeub, created the Legal E-Marriage Project, a clearinghouse for legislative proposals to institute “e-marriage.” What is e-marriage? What are its benefits?
MK: Marriage procedure has become ossified. There’s never any innovation whatsoever. There’s this notion of geographic literalism that you have to be in the state physically to get the license and have the ceremony or, otherwise, the marriage may not be valid.
Essentially, e-marriage is proposed for couples who live in one state to use the Internet to obtain a marriage license online so they can be legally married under a different state’s law.
I am saying that states have a greater capacity to offer their marriage licensing services to people who are not present in the state and that making use of it would lead at least to some possible innovation at the entry level for marriage. States play no sorting out role, no counseling role, except the biased refusal in some states to allow same-sex marriages. Then, at the exit level, the states have come up with lots of theories. If people would open up their heads to a little innovation to marriage procedure, states could start trying to offer a little bit more at the entry level.
Why couldn’t a state offer marriage choices and classify the different types of assumptions on which people enter marriage and offer a choice of law? Contract law allows parties to a contract to stipulate the law that will govern its interpretation. Why couldn’t a marriage, even one not taking place in Vermont, be bound by Vermont law, and the parties elect a certain type of marriage to be governed by the Vermont treatment of that kind of marriage? Different states have different rules on how they address divorces (including custody of children, and division of assets). It wouldn’t be that hard for a state court judge to apply. States admittedly might balk at deciding the custody question in accordance with another state’s laws but the dissolution question of the marriage could be handled this way. It’s not so different for pre-nuptial agreements.
Why not have states offer pre-fabricated pre-nuptial agreements (“pre-fab pre-nups”)? It would be a sounder approach to pre-nuptial agreements than people are often able to produce through private contracting. Essentially, this would be trying to capture what’s going on in private ordering and put it into pre-fabricated public options.
Vermont has shown an interest in these types of ideas and they are willing to do audacious things. Whichever state does it first is definitely going to get a lot of criticism. But, as sovereigns, they can do it.
SL: Do you have advice for law students and new lawyers?
MK: My advice would be don’t get too discouraged. Even though, at the moment, we are going through a bad economic period, don’t get overly persuaded by the prophets of doom who claim it’s no longer a good choice to be a lawyer. But do be careful about how much money you spend on law school. Ask yourself what is your core purpose in getting a law degree. Certainly, you want it for an income but what are your other purposes and what is the extent of your patience in trying to graduate and make use of your degree for your whole set of purposes, not just for the immediate job but your whole long-term ambition? Many early lawyers in the U.S. started their careers with a limited education and few prospects. Some of them became great judges and advocates and counselors. Develop a strong set of values and commitments, and you can weather adversity and have a rewarding, productive life. Do your best to integrate your career with your basic passions and values.