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Article Title

Domicile Dismantled

Document Type

Article

Publication Date

Spring 2017

Publication Citation

92 Indiana Law Journal 387 (2017)

Abstract

Part I of this Article discusses the legal and factual background of Mas v. Perry. This narrative reveals how the case reflects both the changes in American society that were beginning to occur at that time and the struggle of the concept of domicile to keep pace with those changes. Part II traces the development of the fundamental shift in gender roles that began several years before Mas was decided. This section argues that the growing number of women attending college, embarking upon careers, and forming two-career marriages increased the difficulty of measuring domicile, while undermining the efficacy of a gendered presumption such as the one em-bedded in the derivative domicile rule.

As Part III will demonstrate, these changes in gender norms occurred in tandem with broader changes in the lives of young Americans. Even as the legal age of majority decreased in the early seventies, the actual age at which young people began to reach the markers of adulthood began to increase. Both women and men began to seek higher education, to delay marriage, and to wait longer to establish homes, families, and careers—and, consequently, to establish any permanent intentions regarding domicile. This newfound period of “emerging adulthood” served to further under-mine the usefulness of domicile as a legal tool.

Part IV shows how the new legal age of majority, in combination with shrinking state budgets and the articulation of the right to interstate travel, led to a new focus on the legality of tuition residency requirements. It demonstrates that although the Supreme Court struck down durational residency requirements in other areas of the law, it maintained a dismissive attitude toward student capacity to form domiciliary intent. This attitude, however, did little to stem the wave of litigation that began in the 1960s and has continued into the present day. The cases decided during this period of litigation reveal the interaction of gender changes, emerging adulthood, and domicile.

The Article concludes that the confusion over domicile that has emerged in the last fifty years makes it an increasingly unwieldy and unhelpful legal concept. As university regulations and the courts’ convoluted and conflicting reasoning demonstrate, the changes that developed during the era of Mas v. Perry and continued into the present day have made it difficult, if not impossible, to measure domiciliary intent in any consistent, equitable, or meaningful way. Using residence, or residence with additional requirements, is a more sensible and accurate way to handle jurisdictional questions.