Thursday, February 22, 2024
Sarah H. Lord (Brooklyn Law School) recently posted her article, Disabling Families, on SSRN. Here is the abstract:
The family regulation system is increasingly notorious for harming the very families—primarily Black, brown, Native, and poor—that it ostensibly aims to protect. Under the guise of advancing child welfare, families are surveilled, judged, and separated. Discrimination and ingrained prejudices against disabled parents render their families especially vulnerable to separation and termination. Once enmeshed in the system, disabled parents have little recourse against discrimination based on ableist and raced notions of parenthood.
This Article argues that the family regulation system not only discriminates against disabled parents, but also produces disability. It identifies and theorizes three modalities of this production: construction, creation, and reinscription. The family regulation system constructs the social category of disability by assuming parents bearing a disability label are unfit and subsequently stigmatizing and separating these families. The family regulation system creates disability by causing or exacerbating impairments that render parents and their families disabled or more likely to become disabled. And the family regulation system reinscribes disability by failing to provide appropriate services or accommodations to disabled parents and then blaming a parent’s disability—rather than the lack of services—when a termination of parental rights occurs. In these three ways, the family regulation system—including the courts, caseworkers, and lawyers who enforce its functioning—produces disability.
This Article documents how the judicial decisions and outcomes arising from the family regulation system contribute to the pathologizing of disabled people. It argues, however, that while disability is often stigmatized, it is not a negative identity, social group, or label. In fact, disability can be a disrupting force in the family regulation system. The Article concludes that disability can be a source of pride, family strength, and personal autonomy. It conceptualizes the act of parenting with a disability—by its very ordinary nature—as a form of resistance. Finally, it offers strategies for disrupting the production of disability in the family regulation system while urging the claiming of disability as a positive identity. In sum, by unearthing how disability can be constructed, created, and reinscribed by forces outside of the self, this Article challenges the dominant legal and cultural narrative that disability is solely a medical diagnosis or problem inherent to the individual bearing the disability label.
Sunday, February 18, 2024
Jeffrey Parness (Northern Illinois University College of Law) recently published his article, "New Mothers Know Best? Second Parent Choices At Birth" in the Southern Illinois University Law Journal.
Here is the Abstract:
Professor Jessica Feinberg recently observed that state laws on the ability of one who gives birth (a "gestating parent"), as the first legal parent, "to exercise meaningful choice within the determination of who is deemed the child's second legal parent differ drastically depending on factors such as their marital status, the method of the child's conception, and the gender of the desired second parent." She found many of the differences "problematic," having "no underlying theory that provides a consistent explanation for the law's current approach;" she urged “reform. .. to create a more coherent and just legal framework governing the degree of meaningful choice individuals who give birth have in at-birth determinations of the child's second legal parent." Reform efforts, she concluded, should primarily focus on "the law's approach to married gestating parents and the eligibility requirements for establishing parentage through VAPS" (that is, "voluntary acknowledgements of parentage"). Here she urged "that the gestating parent should be able to exercise a significant degree of meaningful choice in the determination of who is deemed the child's second legal parent at birth," with the choice to be given "special weight." Professor Feinberg is not the first to urge that significant (if not absolute) deference be given to second parent choices by gestating parents that take effect at birth. In 2006, Professor E. Gary Spitko concluded “the biological mother (e.g., Feinberg's "gestating parent") enjoys the right to control access to her child including the right to determine who else shall be allowed to become a parent of the child."
In 2006, Professor Karen Syma Czapanskiy proposed that a birth mother be “empowered to decide whether she will be the child's sole legal parent or whether she will designate whomever she wants,” with the choice “not constrained by presumptions in favor of her spouse or the child’s biological father.”
In 2016, Professor Melanie B. Jacobs, focusing on "at-birth parentage determinations," opined that "all parents must sign an intentional acknowledgment of parenthood that establishes the maternity and/or paternity of the child." Under her approach, "a child will have a minimum of one parent," presumedly the gestating parent. Effectively, she suggests no one else may be a parent at birth, even if married to the gestating parent, unless the birthgiver recognizes in writing the parentage of that other person (or those other persons).
In response, this article presents alternative reforms of new mothers know best laws. It first reviews the laws on pre-birth and at birth choices of second parents by gestating parents that take effect at birth. It then sets forth some thoughts on more coherent laws on such second parent choices, recognizing that while some nationwide coherence is compelled by U.S. Supreme Court precedents, certain interstate variations are invited by other Court precedents, meaning coherence must be assessed at times on a state by state basis.
Monday, May 27, 2019
From National Law Review:
According to the National Institute of Mental Health,
Approximately 1 in 5 adults in the U.S. (46.6 million) experiences mental illness in a given year.
Approximately 1 in 25 adults in the U.S. (11.2 million) experiences a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.
Not surprisingly, mental health issues come up in the context of a divorce in a variety of ways. They arise when mental health issues contribute to the breakdown of the marriage or relationship. For instance, a partner may suffer from a condition which causes him or her to behave in ways that are detrimental to the relationship.
If a spouse or partner is suffering from mental illness to the extent that he or she cannot make rational decisions, the court has a variety of options to protect that person, both personally and his or her property. The court can appoint a guardian for the person, particularly if the illness is so extreme as to cause a person to be incompetent.
Read more here.
Tuesday, June 20, 2017
Jeffrey A. Parness (Northern Illinois University - College of Law) has recently posted on SSRN his new article Marriage Equality, Parentage (In)Equality, 32 Wisconsin Journal of Law Gender and Society __ (Fall 2017) (forthcoming). Here is the abstract:
Recently, several quite distinguished commentators have asked how, if at all, the U.S. Supreme Court will speak, after its same sex marriage ruling in Obergefell v. Hodges, to interstate inequalities involving the federal constitutional rights of childcaring parents. Specifically, Professor Mayeri notes in the Yale Law Journal that today the “constitutional law of the family stands at a critical turning point,” leaving us to ponder whether the “advent of marriage equality,” which “disrupted conventional definitions of parenthood” by demoting “marriage and biology in favor or a more intent-based and functional criteria,” will heighten or diminish the federal “constitutional significance of marital status” in parentage matters. Professor NeJamie worries in the Harvard Law Review that Obergefell “may reduce incentives to achieve laws that recognize unmarried, nonbiological parents,” though there is the “potential” for it to “yield more robust recognition for some unmarried parents.” And Dean Murray, while recognizing this “potential,” worries in the California Law Review that Obergefell may not be read to “sanction and facilitate … methods of family formation … that credit nonmarriage.”
Obergefell did not directly address any issues involving national parentage equality. It is not likely that the ruling will prompt the U.S. Supreme Court to address national parentage equality any time soon. The Court has historically deferred to state parentage laws while recognizing their significant interstate variations.
While interstate parental childcare equality issues are important, they pale in significance to issues of intrastate equality for marital and biological parents, as well as for nonmarital, nonbiological, nonadoptive parents who care for children and who are often deemed de facto or presumed parents, which can include grandparents and/or stepparents. In the article I offer a few thoughts on intrastate parental childcare equality after explaining why interstate inequalities will likely remain unaddressed by the U.S. Supreme Court.
Wednesday, April 27, 2016
Jonathan Todres (Georgia State University College of Law) has posted on SSRN his article Can Mandatory Reporting Laws Help Child Survivors of Human Trafficking?, 2016 Wisconsin Law Review Forward 69-78 (2016). Here is the abstract:
Once thought of as primarily a criminal justice issue, human trafficking is now recognized an issue that implicates all sectors of society. Trafficked individuals have been identified in a breadth of industries, including manufacturing, agriculture, construction, mining, fisheries, forestry, health care, hospitality and tourism, domestic service, restaurants, forced-begging operations, and the sex industry. Preventing exploitation across so many sectors requires a comprehensive, coordinated response. In addition to the criminal justice system, social services, health care professionals, educators, businesses, media, and others all have a role to play in addressing human trafficking and its attendant forms of exploitation. As part of the recent push to broaden engagement in anti-trafficking efforts, policymakers and advocates have identified mandatory child abuse reporting statutes as a vehicle for engaging health care providers, educators, and others professionals who work with children to help identify children at risk of or exploited by human trafficking. This article examines the potential impact of mandatory reporting laws on efforts to address child trafficking. In the past several years, roughly one-quarter of the states have amended their mandatory reporting laws to cover some or all forms of human trafficking. This article argues that these measures, while well-intentioned, might not have the intended impact without further action. The article examines the potential for mandatory reporting to address both sex trafficking and labor trafficking and then discusses how to make mandatory reporting a more effective tool for addressing the trafficking of children.
Sunday, June 21, 2015
Jane Murphy (University of Baltimore School of Law ) and Jana Singer (University of Maryland Carey School of Law) have recently published Divorced from Reality: Rethinking Family Dispute Resolution (NYU Press 2015). The book is described by the authors:
Over the past thirty years, there has been a dramatic shift in the way the legal system approaches and resolves family disputes. This shift has replaced the law-oriented and judge-focused adversary model with a more collaborative and interdisciplinary regime that attempts to resolve both legal and non-legal issues. At the same time, American families have changed dramatically. Divorce rates have slowed, while the number of children born and raised outside of marriage has increased sharply. Grandparents, same sex partners and others considered third parties under the law are raising children. As a result, the families who seek legal dispute resolution have become more diverse and their legal situations more complex. Divorced from Reality argues that the current “problem solving” model fails to address the realities of today’s families. The authors suggest that while today’s dispute resolution regime may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family with lawyers representing all parties—a model that fits poorly with the realities of today’s disputing families. To serve the families it is meant to help, the legal system must rethink its reliance on courts and must adapt and reshape itself.
Order the book here.
Friday, May 8, 2015
Anna Stępień-Sporek & Margaret Ryznar have posted The Consequences of Non-Marriages, University of San Francisco Law Review (forthcoming) on SSRN. Here is the abstract:
In several British surveys, the majority of people thought that cohabitants had the same legal status as married couples. However, this could not be farther from the truth—the law treats them as nothing more than strangers, albeit often with contractual capabilities to protect themselves in the event their cohabitation ends. A minority of American states, however, have refused even contract rights to cohabitants, with Illinois leading this contingent. In late 2014, however, an Illinois appellate court dramatically diverged from the state’s well-established precedent, determining that a recent change in public policy required recognizing property consequences of cohabitation. The legal framework on cohabitation is even more dynamic in Europe, ranging from no protection to equal protection that is provided in marriage, depending on the country. This Article therefore takes a comparative approach to examining the appropriate regulation of cohabitation and whether protections should be offered to cohabitants as their number continues to grow on both sides of the ocean.
Monday, November 17, 2014
Here is the Balkinization symposium on Professor Clare Huntington's book Failure to Flourish, and the collected posts (with contributions from Professors Elizabeth Scott, Solangel Maldonado, Robert Emery, Robin Lenhardt, and Linda McClain).
Tuesday, July 29, 2014
From the New York Times:
Two professors of family law, June Carbone and Naomi Cahn, have written a crisp and cogent account — rich with detail and utterly free of legalese — of America’s failure to invest in its children.
Their book, “Marriage Markets,” asserts that this failure lies not only in public policy but also in the private lives of Americans. Marriage, the time-honored way of fostering the interests of children, no longer works for many Americans. In an economy ruptured by increasing inequality, millions of men and women are deciding that marriage imposes obligations that they cannot meet. Nearly half of all marriages fail; more than 40 percent of American children are born to single mothers.
This is not a romantic book. Professor Carbone, who teaches at the University of Minnesota, and Professor Cahn, of George Washington University, describe picking a marriage partner as a high-stakes negotiation to find the most promising person, both emotionally and financially, for a lifelong commitment. It is a contract that comes with rights and responsibilities defined and enforced by law.
Read more here.
Tuesday, July 22, 2014
From Jill Elaine Hasday (University of Minnesota), writing for Slate:
Too often, the law permits sibling relationships to be severed by an adoption or a parent’s divorce or death. Sometimes, siblings are left with no way to stay in touch with each other. When siblings placed in different households have had the chance to write or speak publicly about their experiences, they have emphasized the pain, sadness, and complete shock that separation can inflict.
The tie between siblings is often the longest lasting relationship that a person ever experiences. Social science research makes clear that strong bonds between brothers and sisters can develop very early in childhood. Many children spend more time with their siblings than with anyone else, and siblings who grow up together accumulate a store of shared memories that can shape each sibling for life. Children with absent, dysfunctional, or warring parents often forge especially intense bonds with each other that provide solace, nurturing, and secure emotional attachments.
But as I discuss in my new book, Family Law Reimagined, the legal system has long acted as if marriage and parenthood are the only two family relationships that matter. In recent years, the law has expanded its focus slightly by directing more attention toward unmarried couples. Yet courts and legislatures still do remarkably little to protect sibling ties.
Read more here.
Thursday, July 3, 2014
Faisal Kutty (Valparaiso University Law School) has posted "Islamic Law and Adoptions," forthcoming in Robert L. Ballard et al., The Intercountry Adoption Debate: Dialogues Across Disciplines (Newcastle upon Tyne, UK: Cambridge Scholars Publishing, 2014). Here is the abstract:
Throughout history, adoption has held a contentious and ambiguous role in the social imagination of many cultures. Adoption is a complex social, legal, and economic phenomenon that has existed in one form or another in most societies since ancient history. Religion has served to both advance and restrict adoption and similar childcare arrangements. Some religions have encouraged adoptions, others have initially been interpreted to restrict them, and yet others continue to restrict or advocate alternative arrangements.
The belief that closed adoption, as practiced in the West, is the only acceptable form of permanent childcare is a significant obstacle to its acceptance among many Muslims. Adoption rights activists—and prospective adopters—have struggled to find ways around the difficulties this simple binary view causes for the millions of children around the world who could benefit from a loving home. With increasing numbers of abandoned and orphaned children and a growing number of hurdles, there is now an added urgency to tackle this issue. It is beyond the scope of this chapter to grapple with all of the nuances and issues raised by adoption in Islam. The goal of this chapter is more modest. It is to contribute to a better understanding of Islamic views on adoptions, provide insights into some of the tensions and points of convergence, lay groundwork to help in bridging the gap, and fill the existing void in properly caring for orphans, abandoned children, and children of unknown parentage consistent with contemporary notions of child welfare and the spirit of the Sharia. Part I provides a basic background on Islamic law, its sources, principles and methodology for development and evolution. Part II sets out a description of adoption and alternatives under classical Islamic law as understood and accepted by the orthodox Sunni community. Part III explores and highlights the areas of tension and convergence with modern western conceptions of adoption and child welfare. The chapter then concludes with some parting thoughts.
The chapter demonstrates that there is sufficient basis in Islamic jurisprudence to argue for qualified support of international adoptions. It is undeniable that taking care of orphans and foundlings is a religious obligation. Arguably one of the best ways to take care of these children is to place them in loving homes, provided that a child’s lineage is not intentionally negated or concealed. A reformed model of Islamic adoptions will enable Muslims to fulfill this religious obligation while ensuring that the most vulnerable do not fall through technical cracks and will not be negatively impacted by formal rules that no longer serve their intended purposes.
Read more here.
Monday, June 16, 2014
From Professor Clare Huntington (Fordham Law), writing for the New York Times:
The fathers’ rights movement contends that the treatment of fathers and mothers is unequal under the law, but the real difference is between married and unmarried fathers.
My research shows that family law makes it much harder for unmarried fathers to sustain a relationship with their children. In most states, if a child is born to married parents, the mother’s husband is automatically established as the legal father. By contrast, unmarried fathers have to take additional steps to establish parentage.
Read more here.
Saturday, June 7, 2014
Clare Huntington (Fordham Law School) has published a new book, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press 2014). Here is Oxford’s description:
Exploring the connection between families and inequality, Failure to Flourish: How Law Undermines Family Relationships argues that the legal regulation of families stands fundamentally at odds with the needs of families. Strong, stable, positive relationships are essential for both individuals and society to flourish, but from transportation policy to the criminal justice system, and from divorce rules to the child welfare system, the legal system makes it harder for parents to provide children with these kinds of relationships, exacerbating the growing inequality in America.
Failure to Flourish contends that we must re-orient the legal system to help families avoid crises and, when conflicts arise, intervene in a manner that heals relationships. To understand how wrong our family law system has gone and what we need to repair it, Failure to Flourish takes us from ancient Greece to cutting-edge psychological research, and from the chaotic corridors of local family courts to a quiet revolution under way in how services are provided to families in need. Incorporating the latest insights of positive psychology and social science research, the book sets forth a new, more emotionally intelligent vision for a legal system that not only resolves conflict but actively encourages the healthy relationships that are at the core of a stable society.
Tuesday, June 3, 2014
Monday, March 10, 2014
Anthony C. Infanti (University of Pittsburgh - School of Law) has posted "Big (Gay) Love: Has the IRS Legalized Polygamy?" North Carolina Law Review Addendum, 2014, Forthcoming, on SSRN. Here is the abstract:
Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which struck down section three of the federal Defense of Marriage Act (DOMA).
In exploring that possibility, this essay continues my work analyzing the shortcomings of the IRS’s implementation of the Windsor decision. The Secretary of the Treasury promised that IRS guidance would provide same-sex couples with “certainty and clear, coherent tax-filing guidance.” To the contrary, I have explained that the IRS’s guidance provides no more than the same veneer of clarity that DOMA did, because it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences. In this essay, I extend that analysis by explaining how ambiguity in the IRS’s guidance may also have unintentionally opened the door to recognizing plural marriage for federal tax purposes.
Wednesday, February 26, 2014
From Derek W. Black posted his article "The Constitutional Limit of Zero Tolerance in Schools" on SSRN. Here is the abstract:
With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application of zero tolerance policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect. Although the constitution confers significant discretion on schools to regulate student behavior, that discretion does not include the authority to entirely strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student’s good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render hearings meaningless. Zero tolerance policies breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in related areas of juvenile justice. To comply with due process, the state must consider students’ intent and culpability, along with the potential harm posed by the behavior at issue. Contrary to conventional wisdom, courts can strike down zero tolerance policies that fail to take these steps without re-crafting constitutional doctrine.
Monday, February 24, 2014
Wednesday, January 29, 2014
Yuvraj Joshi has posted his article The Trouble with Inclusion, Virginia Journal of Social Policy and the Law, Vol. 21, No. 2, 2014, on SSRN. Here is the abstract:
Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.
Wednesday, October 23, 2013
LaVigne & Van Rybroek: "'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships"
Michele LaVigne (University of Wisconsin Law School) & Gregory Van Rybroek (Mendota Mental Health Institute) have posted on SSRN "'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships," 17 CUNY Law Review (2014). Here is the abstract:
Language impairments -- deficits in language and the ability to use it -- occur at starkly elevated rates among adolescents and adults charged with and convicted of crimes. These impairments have serious ramifications for the quality of justice. In this article, we focus specifically on the effects of a client's language impairment on the attorney-client relationship, the constitutional realm that suffers most when a client lacks essential communication skills. The effects of language impairment can be seen in a client's ability to work with a lawyer in the first place, tell a story, comprehend legal information, and make a rational and informed decision. This article shows how these effects play themselves out within the attorney-client relationship, and the impact on the lawyer's ability to meet her constitutional and ethical obligations. We also propose concrete steps for improving the quality of communication within the attorney-client relationship. While attorneys will obviously shoulder much of the responsibility, judges and prosecutors are not exempt. A client's poor communication skills are not simply be "the lawyer's problem," but a matter of great concern for all stakeholders in the justice system.
Thursday, October 10, 2013
Daniel L. Hatcher ( University of Baltimore - School of Law) has posted "Forgotten Fathers," 93 Boston University Law Review 897 (2013). Here is the abstract:
Poor fathers like John are largely forgotten, written off as a subset of the unworthy poor. These fathers struggle with poverty – often with near hopelessness – within multiple systems in which they are either entangled or overlooked, such as child-support and welfare programs, family courts, the criminal justice system, housing programs, and the healthcare, education, and foster-care systems. For these impoverished fathers, the “end of men” is often not simply a question for purposes of discussion but a fact that is all too real. In the instances in which poor fathers are not forgotten, they are targeted as causes of poverty rather than as possible victims themselves – or more accurately they fall somewhere along the false dichotomy between pure blame and pure sympathy. The poor fathers are lumped together in monolithic descriptions that become constants in equations attempting to understand and solve societal ills.
This Essay seeks to step back, to de-simplify the incorrect math and begin drawing the interconnections between the legal and policy systems impacting low-income fathers, including the linkages to impoverished women and families. The contexts of race, gender, and class are engaged within the numerous systems and legal structures that impoverished fathers encounter. These systems and their impact must each be considered individually while simultaneously understanding the broader view of the system interactions. The appropriate discussion point for fathers like John is not found in the narrative of the “end of men” and the purported competition between men and women as struggling for the mantel of the dominant sex. Nor is the issue best illustrated by a Super Bowl commercial for a Dodge Charger muscle car “vrooming toward the camera punctuated by bold all caps: MAN’S LAST STAND,” with the lingering question of who should be “steering the beast.” John does not even have a driver’s license. Rather, the discussion for impoverished fathers should be directed toward whether there is an opportunity to turn back from their gradual acquiescence to failure, and whether at-risk boys can veer away from a seemingly pre- determined path.