November 27, 2010
Love Is Not Pain...
...plus, apparently, it reduces pain.
That rush of good feelings you have in the first few months of being in love don't just put you in a better mood; love may actually be a painkiller, researchers suggest in a new study in the journal PLoS ONE.
"Finding pleasure in activities, and with the one you’re with, can have multiple benefits, including reducing your pain," said senior author Dr. Sean Mackey, chief of the Division of Pain Management at Stanford University School of Medicine.
Read more here.
November 26, 2010
Kleven: “Federalizing Public Education”
Thomas Kleven (Texas Southern University - Thurgood Marshall School of Law) has posted Federalizing Public Education, 55 Villanova Law Review 369 (2010) on SSRN. Here is the abstract:
This article assesses the case for federalizing public education in the United States. The starting point is a conception of democracy I call equitable sharing, meaning that the goods of social life must be equitably distributed among all society’s members. I argue that equitable sharing mandates society to ensure that all children have access to a relatively equal educational opportunity—i.e., a comparable opportunity to advance educationally as far as their abilities, interests and willingness to strive allow—at least through elementary and secondary school.
To set the stage for discussing the merits of federalization, I examine various models through which society might promote comparable opportunity. These range from total public provision in a government-run school system that all children are required to attend, to total privatization with no government involvement other than a requirement that parents educate their children, to several mixed public/private alternatives including the parental prerogative to opt out of the government-run system and educate their children at their own expense, government subsidization of the education of children whose parents cannot afford it under an otherwise totally privatized system, and government provision of vouchers that parents can use to educate children publicly or privately as they see fit. I conclude that under egalitarian social conditions all the models might produce relatively equal educational opportunity, and that none are likely to do so under inegalitarian conditions although a government-run or voucher system would likely be more nearly comparable than total privatization.
I then discuss in the abstract three models for the provision of education in a federal system: total national responsibility, total local responsibility, and a mixed bag with the national government responsible for some aspects of education and local governments responsible for others. I conclude that under egalitarian conditions either national or local provision may yield comparable educational opportunities, but that under inegalitarian conditions the case for federalizing at least some aspects of education in order to promote comparability becomes stronger.
Finally, I examine the implications of the foregoing discussions for the United States. Given the highly inegalitarian conditions prevailing here, I conclude that the principle of equitable sharing requires government provision of education. And given the inequalities among the states and among localities within the states, I conclude that the federal government must assume some responsibility for the provision of education in order to promote comparable educational opportunity. Assuming that a universal voucher system will not be adopted in this country and that most children will continue to attend public schools, I examine three models: full federal financing of the existing state and local government system, federal financing plus the federal takeover of the states’ primary role in superintending a decentralized system of local school districts responsible for day-to-day management pursuant to federal standards, and total federalization of both the financing and operation of a national public school system. I conclude that at a minimum full federal financing of public education seems necessary, and that whether a more intensive federal involvement is necessary is an open question depending on the relative effectiveness of the various levels of government in administering the other aspects of public education.
November 25, 2010
November 24, 2010
Coan: "Assisted Reproductive Equality: An Institutional Analysis"
Andrew B. Coan (University of Wisconsin Law School) has posted "Assisted Reproductive Equality: An Institutional Analysis" (forthcoming Case Western Reserve Law Review) on SSRN. Here is the abstract:
Should the constitutional right to procreative liberty extend to assisted reproductive technologies? Unlike most commentators to address this question, Radhika Rao appreciates that the answer turns not only on constitutional values but also on the competence of the institutions called upon to carry those values into effect. On that basis, she urges courts to focus on reproductive equality rather than recognizing a broad liberty right or leaving the regulation of assisted reproductive technologies wholly to an unsupervised political process. This brief symposium essay assesses the institutional promise and limitations of Rao’s reproductive equality approach. A broader takeaway is that comparative institutional analysis is both necessary to sound constitutional reasoning and more complex than many otherwise able constitutional analysts have appreciated. This paper is a companion piece to Andrew Coan, The Future of Reproductive Freedom, also available on SSRN.
Happy Meals No Longer As Happy
This story has dominated the media recently, but, for me, it has triggered very fond memories of happy meals and their toys--and the parental autonomy that allowed me to have them.
From Yahoo! News:
LOS ANGELES (Reuters) – San Francisco has become the first major U.S. city to pass a law that cracks down on the popular practice of giving away free toys with unhealthy restaurant meals for children.
San Francisco's Board of Supervisors passed the law on Tuesday on a veto-proof 8-to-3 vote. It takes effect on December 1.
The law, like an ordinance passed earlier this year in nearby Santa Clara County, would require that restaurant kids' meals meet certain nutritional standards before they could be sold with toys.
Read more here.
November 23, 2010
Beekman: "Same-Sex Second-Parent Adoption and Intestacy Law: Applying the Sharon S. Model of 'Simultaneous' Adoption to Parent-Child Provisions of the Uniform Probate Code"
Jason Carey Beekman has posted "Same-Sex Second-Parent Adoption and Intestacy Law: Applying the Sharon S. Model of 'Simultaneous' Adoption to Parent–Child Provisions of the Uniform Probate Code" (96 Cornell L. Rev.) on SSRN. Here is the abstract:
Sarah, an eight-year-old girl, could not wait for her third-grade field trip to the Museum of Natural History. Best of all, her mother, Jill, who normally worked both a full-time job during the week and a part-time job on the weekend, took the day off to chaperone the trip. Just after pulling out of the elementary-school parking lot, a truck came speeding down the road and struck the school bus carrying Sarah’s class. Sarah was severely injured and rushed by ambulance to the nearby hospital. Jill, uninjured, held Sarah in the ambulance and carried her into the emergency room. Within minutes, Jill found herself removed to the waiting room without ever speaking to a doctor about Sarah’s condition. Although Sarah has always known Jill as her mom, legally, Jill is merely a stranger. Patty, Sarah’s biological mother and Jill’s partner, is the legal parent and the only one with the authority to make medical decisions on behalf of Sarah.
Due to a combination of state marriage laws and adoption statutes, most same-sex couples with children must make a very difficult decision - choosing which parent should be the legal parent. Most adoption laws state that when a natural parent participates in an adoption, this participation completely severs his or her legal rights. These laws leave the meaning of participation ambiguously broad and inclusive of processes such as second-parent adoption. Jill’s adopting Sarah would therefore completely divest Patty’s legal parentage. Although state adoption laws often have a spousal/stepparent exception, which allows second-parent adoption without severing the biological parent’s legal parent-child relationship, this exception does not provide a solution to most same-sex couples living in states that do not provide legally effective same-sex partnerships. Despite sharing equal parental responsibility and raising Sarah together from an early age, Patty and Jill must decide who will be Sarah’s legal mother.
The United States is currently enmeshed in a national debate over same-sex marriage. The debate is occurring in courtrooms as frequently as it occurs at the polls and in state and national legislatures. However, the legal system must address “trickle down” issues stemming from, but extending beyond, the task of simply determining the particular legal status that laws grant to a homosexual relationship. One of the major trickle down issues, though often left out of the public discourse, concerns parental determination for children of same-sex couples. Left even further outside pundit discussions, however, is how this parental determination for children of same-sex couples affects the children’s inheritance rights under the laws of intestate succession. The latter concern is the principal subject of this Editorial and the full-length Note on which it is based.
Second-parent adoption, in theory, provides an opportunity for a nonbiological parent to forge a legal relationship with his or her partner’s biological child (most of whom are either from a previous relationship or born to the couple through in vitro fertilization, surrogacy, or another similar alternative method). While second-parent adoption allows a heterosexual family with a stepparent to ensure a legal relationship between the child and both parents, similarly situated homosexual couples must overcome several obstacles. The most significant obstacle is what is known as the “cut-off provision,” which is present in most state adoption statues. This provision leads to the Jill and Patty predicament - second-parent adoption severs the legal parent-child relationship between the child and biological parent while forging a legal relationship between the child and nonbiological parent. The spousal/stepparent exception that prevents divestment of the legal relationship between the biological parent and child during a second-parent adoption remains unavailable for most same-sex couples living in states that do not grant the legal status of spouse to same-sex partners.
The Note on which this Editorial is based analyzes the impact of the cut-off provision on same-sex couples and their children, focusing on the impact this legal doctrine has on intestacy law. Principally, the Note discusses the parent-child provisions in the Uniform Probate Code[1. UNIF. PROBATE CODE (2002).] and argues that the “simultaneous” adoption solution, which Sharon S. v. Superior Court[2. 73 P.3d 554 (Cal. 2003).] articulates, should extend beyond the context of adoption and parentage laws to the analogous cut-off provisions in intestate laws. When read to maintain legislative intent and ensure the best interest of the child, provisions in the Uniform Probate Code defining a legal parent-child relationship for the purposes of intestate succession should follow a presumption of simultaneous adoption. Courts should interpret the cut-off provision as a default, but waivable, benefit for the adoptive parent and not as a mandatory requirement. In the context of same-sex couples seeking second-parent adoption, this Editorial and the Note on which it is based proffer simultaneous adoption in lieu of sequential adoption because simultaneous adoption would allow an adoptive parent to consent to the maintenance of the legal relationship between the natural parent and the child, meaning that a nonbiological same-sex partner’s adoption would not sever the right of the child to inherit from the biological parent.
The debate surrounding second-parent adoption and the determination of legal parenthood directly impacts the law of succession. Legal recognition of a parent–child relationship is vital for both intestacy and testacy purposes. If a succession document does not provide an adequate definition, a court will look to intestacy laws for assistance in determining the meaning of terms like “child” and “descendent.” More importantly, however, is how a state’s probate code defines a parent-child relationship in its intestacy laws, as most people die intestate.
Similar to adoption laws, no federal law of succession exists in the United States: state law governs property succession and estate laws. Although state probate statutes vary, the Uniform Probate Code (UPC) is representative of most state probate provisions. The UPC articulates the law of intestate succession and provides substantive rules regarding execution and revocation of wills and other such instruments. If a state adopts the UPC, then the UPC defines the parent-child relationship for all purposes in the state, including for intestacy, unless the law of the state provides otherwise. However, recent UPC amendments, where adopted, explicitly provide otherwise and will govern for intestacy purposes.
A critique of current intestacy statutes follows a common critique of state parentage laws: they fail to reflect the reality of the changing landscape of the American family. Same-sex second-parent adoption, for example, is a direct affront to the entrenched model in estate law that defines succession in terms of blood ties. The 2008 UPC Amendments attempted to expand the definition of parent-child relationships to include increasingly emerging nontraditional family structures.[3. See Lee-ford Tritt, Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession, 62 SMU L. Rev. 367, 407, 379 n.54 (2009).] However, the overly complicated amendments maintain the sanguinary nexus test, only expanding the scope of the legally defined parent–child relationship to include (a) children of an adjudicated legal parent, (b) adopted children, (c) nonmarital children, and (d) a limited exception for stepparent and intrafamily adopted children, as well as other previously unrecognized relationships. Thus, although seeking to “redefine” the existing definition of parent-child relationship, the 2008 UPC Amendments still retain the relic of the sanguinary nexus test and do little to address family structures that fall outside of the traditional family structure.
Two of the new amended provisions, UPC Sections 2-118 and 2-119, specifically address adopted children. However, these amendments do not adequately address either the emerging issue of second-parent adoptions by gay and lesbian couples and the interplay with state marriage or partnership laws. The Amended UPC sections severely limit the right of adopted children to inherit from their nonbiological parents, providing a right to inherit only where the biological parent’s spouse is adopting the adoptee. Stemming from the same intent as state adoption laws - that is, to preserve the new adoptive family against claims from the severed biological parent - the UPC provides that for intestacy purposes, an adoptive child is the child of the adopting parents and not of the child’s biological parents.[4. Id. at 409.] Therefore, adoption cuts off the right of inheritance between the adopted child and the biological relatives, thereby effectuating the “fresh start” policy.
Thus, adoption, for intestacy purposes, cuts off the right of inheritance as between the adopted child and the biological relatives and creates inheritance rights in the adopted child’s adoptive family. Similar to state adoption laws, the UPC provides several exceptions to the rule that adoption cuts off inheritance rights between the adopted child and the genetic parents.
One exception continues a provision that existed in the UPC before the 2008 Amendments. In stepparent adoptions, the parent who is no longer a legal parent (the parent who died or gave up parental rights) remains a parent for inheritance by the child or a descendent of the child from or through the parent. Following a stepparent adoption, the biological parent who is no longer a legal parent will not inherit from the child, but a child will still inherit from or through that biological parent, even if the parent permitted the adoption of the child by the child’s stepparent. Just as in state adoption laws, the UPC provides exceptions to the “fresh start” divestment policy - including the stepparent exception and the spouse exception.[5. UNIF. PROBATE CODE § 2-119(b), (c) (2008 Amendment).] These exceptions, as well as the exception for children that a relative or surviving spouse of a relative adopts or after the death of both biological parents, allow the child to continue to inherit from or through the biological parent.
These exceptions do not cover second-parent adoptions by unmarried couples - a biological parent will cease to be a parent for intestacy purposes if his or her unmarried partner adopts the child. Thus, analogous to state adoption laws, many same-sex families are left unprotected. In states where same-sex marriage or other legal recognition of same-sex relationships is not available, the UPC would limit the rights of that child to the intestate succession of one of the parents. In effect, the parents would have to choose who would be the “legal” parent under the parent-child definition of the UPC, which would mean deciding which parent the child would automatically inherit from, which parent’s will the child would have standing to contest, and which parent the child would be an interested heir of. For example, if the biological mother in a lesbian couple wants her partner to adopt the child, the biological mother risks her child being unable to inherit from the biological mother because this scenario does not fit one of the exceptions to the 2-119 (a) severing the parent-child relationship between an adoptee and the adoptee’s biological parents.
The simultaneous adoption solution to the cut-off provision in adoption statutes should apply to the parent-child relationship provisions in state probate laws. Applying the Sharon S. simultaneous adoption approach provides that a biological parent who does not relinquish parental rights with respect to a child will continue to be treated as a parent, and that the child will continue to be treated as the parent’s child, for purposes of intestacy. Similar to the explanation that the court provided in Sharon S., this solution does not require a broad and activist reading of the exception or a new, even more expansive intestate framework. Instead, it simply provides that the cut-off provision is discretionary, not mandatory, and thus, that the nonbiological parent’s second-parent adoption does not automatically extinguish the child’s right to inherent from the biological parent.
There is a concern, however, with analogizing to adoption law and applying the Sharon S. solution. Looking at legislative intent, the purpose behind adoption statutes - and family law in general - is to effectuate the best interest of the child. However, the purpose behind intestate and probate laws is to ensure testamentary freedom and effectuate the intent of the individual. Yet, allowing an adoptive parent to waive the “benefit” of the cut-off provision demonstrates, in a very direct way, demonstrates the desire of both the biological parent and the adoptive parent to include the child in the definition of “family” for the purposes of inheritance.
The structure of the American family is changing: a more fluid and flexible understanding of family is replacing notions of an archetypical heterosexual nuclear family. However, laws written with the traditional archetypical family in mind remain on the books. Many areas of law, including adoption and probate laws, must respond to the evolving concept of family, a concept increasingly inclusive of same-sex couples and their children. Arguing for the universal legalization of same-sex marriage as the solution is both unrealistic and, arguably, impractical, but laws should not discriminate against same-sex couples and, more importantly, their children. While one can argue that the cut-off provision does not explicitly discriminate against same-sex couples and their children, it has an unconstitutional disparate impact on children of same-sex individuals, especially because the children are unable to access the stepparent/spousal exception in most cases. The cut-off provision might therefore violate the Equal Protection Clause of the Constitution because it treats children of same-sex couples differently from children of heterosexual couples.
There is a long line of cases in which the Supreme Court has invalidated statutes that treat illegitimate children differently from those born in wedlock. In Levy v. Louisiana,[6. 391 U.S. 68 (1968).] for example, the Court utilized the rational basis test and determined that there was no rational reason to prevent illegitimate children from recovering under the state’s wrongful death statute. Although the Court’s decision in Labine v. Vincent[7. 401 U.S. 532 (1971).] concluded the opposite, the cases are distinguishable. Labine, decided three years after Levy, involved a Louisiana law concerning an illegitimate child who sought a portion of her father’s property after he died. The Court held that refusing to allow this illegitimate, unacknowledged child to inherit through intestate succession did not violate the Due Process or Equal Protection Clauses because Louisiana had a legitimate state interest in an orderly administration of succession and therefore there was a rational basis for the discriminatory treatment. The Court noted, however, that if the decedent had acknowledged his illegitimate daughter during his lifetime, then she would have been a natural child under the state’s intestacy scheme and would have inherited from his estate.[8. Id. at 533–37.] In Weber v. Aetna Casualty & Surety Co., the Court applied intermediate scrutiny to a worker’s compensation-claim methodology and held a denial of equal recovery rights to dependent unacknowledged illegitimate children violated the equal protection guarantee of the Fourteenth Amendment.[9. 406 U.S. 164, 165 (1972).] Finally, in Trimble v. Gordon, the Court invalidated an Illinois intestacy statute limiting inheritance by intestate succession to illegitimate children of the mother.[10. 430 U.S. 762, 776 (1977).] Once again, the Court noted the irrationality of any scheme that treated illegitimate and legitimate dependents differently. The Court upheld Trimble a decade later in Reed v. Campbell when it explicitly clarified that Trimble was still good law.[11. See 476 U.S. 852, 856 (1986); 430 U.S. at 770–71, 776.] While the level of scrutiny might not be the same in all the cases, there is a demonstrated history of Supreme Court precedent looking at the disparate impact of particular state statutes and requiring that states not to treat children differently merely on the basis of legitimacy.
Analogizing from these cases, the Court would most likely apply a rational basis test to the cut-off provision and require a legitimate state interest to hold the provision constitutional as applied to same-sex families. There does not appear to be a state interest that would pass constitutional muster. The “fresh start” policy, the only real reason states mention to justify the cut-off provision, does not provide a legitimate interest in the same-sex second-parent adoption context. In fact, it goes against the child’s best interest in divesting a meaningful personal relationship of all legal merit.
Saving for College
Last month, TaxProf Blog had an interesting post summarizing how Americans save for their kids' college education. Read it here.
November 22, 2010
Mossman & Shoemaker: "Incompetence to Maintain a Divorce Action: When Breaking Up Is Odd to Do"
Douglas Mossman (Univeristy of Cincinnati College of Law) & Amanda Shoemaker have posted "Incompetence to Maintain a Divorce Action: When Breaking Up is Odd to Do"(84 St. John's L. Rev. 117) on SSRN. Here is the abstract:
The law has well-established provisions for handling divorce actions initiated on behalf of persons already adjudged incompetent or by competent petitioners against incompetent spouses. But how should a court respond if a mentally ill petitioner who is competent to manage most personal affairs seeks to divorce a spouse for bizarre, very odd, or crazy-sounding reasons?
Several recent social developments - better psychiatric treatment, wider acceptance of divorce, population trends, and the advent of “no-fault” and unilateral divorce laws - have made it more likely that mentally ill petitioners will seek divorces. Yet the question of whether to allow a divorce action that is motivated by a petitioner’s psychotic ideas about his spouse is addressed in just a few published cases, and then only indirectly. Largely unanswered are questions about whether domestic relations courts have the authority to stop such divorce actions, to investigate competence of mentally ill petitioners, or to order mental health examinations of petitioners.
This Article recommends that domestic relations law recognize incompetence to maintain a divorce action as a distinct form of legal incapacity. We review existing rulings that bear on whether a mentally ill person may be barred from pursuing a divorce because of a specific lack of competence to divorce. We explain why requiring parties to be competent to maintain a divorce action is consistent with existing case law and with existing doctrine concerning other legal competencies. We then offer a model statute that articulates a standard for incompetence to divorce and that would authorize courts to adjudicate the issue with the aid of expert testimony. We also give examples of evaluation questions that might help courts or mental health examiners discern whether a psychiatric disorder has compromised a petitioner’s competence to divorce.
Announcement: For Signature, Law Prof Amicus Brief in Adoption Case
Another disrupted adoption case has arisen, and I am soliciting support for an amicus brief. There is in this case the usual prospect of a biological father forcing the separation of a child (two and a half years old) from the adoptive parent (a single woman) who has cared for the child since birth. The adopting mom is in California, the biological father is in Ohio, and as in other cases the interstate aspect has contributed to delay in reaching finality. What is unusual in this case is that the alternative to adoption for the child is not placement with a biological parent. An Ohio court has ordered that the child be transported to Ohio for placement in foster care, with the possibility that ultimately she will be placed with the biological father's mother (the child's biological grandmother, whom the girl has never met). The birth mother continues to support the adoption, and the biological father has a history of maltreatment with other children (as well as domestic violence against the birth mother). California courts are now addressing guardianship and adoption petitions by the girl's de facto mom. I was asked to write a brief just on the issue of what constitutional rights the child has in this situation. This inevitably entails also analyzing what rights the biological father has. My position is that the child's attachment and bond with the adopting mother is protected by the Fourteenth Amendment right of intimate association, and that the father is at most entitled to participate in a best interests determination as to the child's future family life. I have a draft ready to distribute. If any other law professor would genuinely consider signing on to the brief, please email me at email@example.com, and I will send you the draft to review.
Thanks for considering it.
November 21, 2010
Alimony Expanded in Quebec
From The Vancouver Sun:
MONTREAL — A groundbreaking decision from Quebec's Court of Appeal opens the door for common-law partners to collect alimony, affecting about 1.2 million Quebecers and bringing the province in line with the rest of the country.
But the woman who brought the issue to a head by taking her billionaire ex to court, claiming alimony payments of the kind most women can only dream, might be out of luck.
Two out of three judges on the panel Wednesday gave the provincial government a year to revamp the family law section of the Civil Code so that unmarried couples can't be excluded from the right to claim alimony.
Read more here.