January 4, 2007
AALS Scholarly Papers Competition Awards
Professor Rashmi Dyal-Chand (Northeastern) is the winner of this year’s AALS Scholarly Papers Competition. Professor Rashmi Dyal-Chand will present her paper, “Human Worth as Collateral,” at the AALS Scholarly Papers Presentation. The program will be held tonight from 4:00 to 5:45 p.m. in the Hoover Room on the Mezzanine Level of the Marriott Wardman Park Hotel.
The Scholarly Papers Committee also chose two papers to receive Honorable Mention Awards: “Essentially a Mother” by Professor Jennifer Hendricks ( Tennessee) and “Underenforcement,” by Professor Alexandra Natapoff (Loyola-Los Angeles). Professors Hendricks and Natapoff will also have an opportunity to speak about their papers at the Scholarly Papers program at the Annual Meeting.
Professor Rashmi Dyal-Chand's Human Worth as Collateral
From the Introduction: A powerful convergence is occurring among radically different markets for credit. Lenders with little else in common are using human worth1 as collateral in credit transactions. Yet laws governing both secured and unsecured lending have failed to recognize this new collateralization so completely that the idea of human worth as collateral seems quite shocking. This failure suggests that the formal rule of law is a less effective disseminator of utilitarian norms than its proponents believe, while the globalizing market for credit is quite effective. The emergence of this new collateralization thus challenges the primacy of the rule of law at a time when many are touting it as the key to economic development.
This article examines two modern examples of this new collateralization that are at geographical, economic, and cultural extremes. The first occurs in the context of credit card lending to consumers in the United States. The second occurs in microlending programs used widely in developing countries as a means of economic development of the poor. The first involves middle class2 people in the First World.3 The second example involves impoverished women in the Third World. The two socio-cultural settings could not be more distinct. Yet, stated bluntly, in both cases human worth has taken on a new role as a market asset: the subject of quantification, collateralization, and diminution.
Professor Jennifer Hendricks' Essentially a Mother
Abstract: This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, I argue that a gestational mother has a constitutional claim to be recognized as a legal parent.
I begin with the “unwed father cases” from the 1970s. Despite believing that natural sex differences justified distinctions in parental rights, the Court crafted a test giving men parental rights if they established relationships with their biological children. I argue that this test was modeled on what the Court saw as the essential attributes of motherhood. I offer this reading as an alternative to the standard feminist critique that the unwed father cases are notable only for their zeal to enforce the traditional family. I also show how the theoretical approach of these cases supports feminist claims for equal treatment despite biological difference (such as accommodation of pregnancy).
Turning to current debates, my focus is on divided motherhood: usually surrogacy contracts, but also embryo mix-ups at fertility clinics. Rather than following existing precedent on parental rights, the law of high-tech parenthood is tending sharply in the direction of denigrating gestation, defining parenthood exclusively in terms of genes or contracts. I show that conferring parental rights on gestational mothers would produce better outcomes and be more consistent with the best aspects of existing constitutional precedents.
Professor Alexandra Natapoff's Underenforcement
Abstract: In numerous U.S. communities and institutions, the government openly and systematically fails to enforce the criminal law. Law enforcement officials know they will not enforce certain laws; victims expect to be unprotected; violators realize they will go unpunished. In these “underenforcement zones,” such official practices can generate violence, social decay, and often represent distinct forms of discrimination and democratic failure. And yet, underenforcement remains underappreciated. Unlike “overenforcement,” which has become an infamous symbol of racial bias and undemocratic policing, the role of underenforcement in shaping the criminal justice landscape has largely escaped scrutiny. This Article conceptualizes underenforcement as a powerful socio-legal phenomenon in its own right. It documents widespread underenforcement practices and describes the kinds of harms it can cause to vulnerable groups and communities. Not all underenforcement is pernicious: it can, for example, reflect appropriate governmental restraint, or the necessities of overbroad codes. This Article thus proposes a descriptive framework for distinguishing between the appropriate and the problematic. It also relocates underenforcement within three ongoing scholarly debates over: law enforcement discretion, democratic policing, and the state's constitutional obligation to provide minimal law enforcement protection. Underenforcement not only poses significant theoretical challenges in these arenas, but is a major contributor to some of the most dysfunctional aspects of the criminal system.
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