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Sacred Trust or Sacred Right?
Get PDFThis is the first chapter from The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child (Yale University Press, 2014.)
It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at four related areas of the law: parental custody, state regulation of education, religion and parental rights, and nonparental third party rights. In each, it is argued that, historically, the authority of the parent has been treated as a sacred trust, a delegation of state power made on the presumption that it will be employed to promote the eventual enfranchisement of the child; that the emergence of a rights orientation has threatened to uncouple the traditional linkage of rights and responsibilities, subordinating the best interests of the child and the legitimate needs of the state to parental preferences; and that a renewed reliance on the trust model of parent-child relations would better serve both the developing personhood of the child and the civil society to which he or she belongs. In each area of the law, we face the same historical reality. It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests.
The law of parent-child relations has long embodied a belief that education (a “leading away from”) is the path away from childhood and toward intellectual and moral enfranchisement. Unless children are to live under “a perpetual childhood of prescription,” unless we are to deny them the pursuit of happiness, they must be exposed to the dust and heat of the race, intellectually, morally, spiritually. It is no wonder then that we would want to transform the sacred trust of parenthood into a sacred right. But our legal traditions teach that parenthood is first and foremost not a sacred right but a sacred responsibility, a fiduciary duty owed equally to the child and the state. The Constitution’s guarantee of personal freedoms is meaningful only if we, as parents, accept the responsibilities from which parental authority arises, and the constitutional strength of parenting privileges should depend on our willingness to do so.
If by “fundamental” we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. The American legal tradition is one that treated paternal absolutism and its rights foundation as barbaric. This is nowhere better seen than in child custody cases, where courts challenged, first, paternal authority and, then, parental control of the child generally. Custodial authority, it was maintained by jurists and legal theoreticians alike, “is not the natural right of the parents; it emanates from the State, and is an exercise of police power.” Far from being absolute, the right to parent was not even the courts’ primary consideration. “The true view,” stated one court, “is that the rights of the child are alone to be considered.” The prevailing legal currents, driven by the equitable force of trust principles, swept away claims of right advanced to support parental power.
The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding—including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel—supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right” at all, let alone a fundamental one.
To say that a parental rights orientation is not deeply rooted in our traditions is not to declare that a particular policy decision is right or wrong. It is simply to say that it is a question of policy whether and how the state should regulate parent-child relations. If we understand that, as a descriptive matter, the right to parent is at odds with a tradition of shared responsibility for the welfare of the child, we might be more willing to consider how old equitable principles can lead to new ways of accommodating the interests of parent, child, and state. By giving parents the right to bring up their children as they see fit, we forestall debate on such contentious questions as educational regulation, religious mentoring, and third-party visitation. We ought not to take these questions out of the public domain by keeping the home under constitutional lock and key
J. Skelly Wright and the Limits of Liberalism
Get PDFThis essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to pushing against those limits. Third, despite this effort, the limits ultimately defeated some of his most important initiatives. Finally, Wright should nonetheless be celebrated for his dogged insistence on accomplishing as much as was possible given the legal, political, and cultural constraints under which he operated
Engaging Outside Counsel in Transactional Law Clinics
Get PDFThis article examines the plurality of objectives and methods by which transactional law clinics collaborate with outside attorneys to competently represent their organizational clients on a wide range of legal issues. Some transactional law clinics rely on outside counsel as informal legal advisors or consultants; others collaborate with outside counsel for the development of community projects or referral of legal work; many transactional law clinics engage outside counsel as “local counsel” when assisting a client in other jurisdictions or internationally; still others engage outside counsel more formally to assist in student supervision of client work. For some, the idea of a clinic working with outside counsel poses a credible threat to clinical pedagogy, clinical faculty status, and the permanent integration of clinics into the law school curriculum. To others, collaborating with outside counsel is a part of everyday client representation, and may be necessary for ethical and professional responsibility reasons. While identifying and discussing the import of these concerns, this article asserts the benefits of collaborating with outside attorneys for law school clinical programs and proposes a framework for deciding whether and how to collaborate with outside attorneys. Specifically, this article sets forth a deliberate and systematic decision-making process for the clinical law professor’s use. The decision-making process proposed is context-specific and dependent on the objectives of the clinical law professor. This article further recommends proactive steps that a clinical law professor can take to facilitate the clinical law professor’s objectives if she decides to engage outside counsel, such as entering into a Memorandum of Understanding to solidify roles and responsibilities of all parties involved in the collaboration. While this article examines collaboration with outside counsel primarily through the lens of transactional law based clinical programs, our discussion provides helpful guidance to law school clinical programs generally
Potential Competitive Effects of Vertical Mergers: A How-To Guide for Practitioners
Get PDFThe purpose of this short article is to aid practitioners in analyzing the competitive effects of vertical and complementary product mergers. It is also intended to assist the agencies if and when they undertake revision of the 1984 U.S. Vertical Merger Guidelines. Those Guidelines are out of date and do not reflect current enforcement or economic thinking about the potential competitive effects of vertical mergers. Nor do they provide the tools needed to carry out a modern competitive effects analysis. This article is intended to partially fill the gap by summarizing the various potential competitive harms and benefits that can occur in vertical mergers and the types of economic and factual analysis of competitive effects that can be applied to those mergers during the HSR review process. The analysis in the article also identifies several legal and policy issues that the agencies would consider when they undertake the process of revising the Vertical Merger Guidelines. The Appendix contains a listing and summary of the vertical merger cases challenged by the DOJ and FTC since 1994
Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform
Get PDFThe criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms—from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child—the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity. All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions. These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the residential opportunities of persons presumed to be strangers to their victims. But even as these measures render many subject to them homeless and unemployable, sexual abuse remains pervasive and significantly underreported in our schools, prisons, military, and between intimates in families. Thus, at once, the U.S. criminal regulatory regime constructs a peculiarly overbroad category of feared persons, compels a misguided approach to this population, and neglects the most prevalent forms of vulnerability to sexual predation and assault. This essay argues that an alternative social institutional reform framework could address pervasive forms of sexual harm more meaningfully and with fewer problems than attend the prevailing criminal regulatory framework. This alternative framework would depart in large measure from purportedly preventive post-conviction criminal regulation, focusing instead on institutional, structural, and social dynamics that enable sexual violence and abuse
Public Health Emergencies: \u3ci\u3eWhat Counts?\u3c/i\u3e
No full textVaccines and drugs to prevent and treat Ebola Virus Disease that have never been tested in humans, and in scarce supply raise profound ethical challenges. What if good evidence emerged demonstrating safety and efficacy of drugs? What would be an ethical method of allocating scarce beneficial resources? The apparent preference given to foreign aid workers over West Africans provoked a firestorm. In addition to discussing the ethical allocation of scarce drugs, this article also asks a more fundamental question: Why did it take nearly 40 years after the first Ebola outbreak in 1976 to launch clinical trials
Public Health Emergencies: \u3ci\u3eWhat Counts?\u3c/i\u3e
Get PDFVaccines and drugs to prevent and treat Ebola Virus Disease that have never been tested in humans, and in scarce supply raise profound ethical challenges. What if good evidence emerged demonstrating safety and efficacy of drugs? What would be an ethical method of allocating scarce beneficial resources? The apparent preference given to foreign aid workers over West Africans provoked a firestorm. In addition to discussing the ethical allocation of scarce drugs, this article also asks a more fundamental question: Why did it take nearly 40 years after the first Ebola outbreak in 1976 to launch clinical trials
Humanitarian Intervention: Evolving Norms, Fragmenting Consensus (Remarks)
Get PDFTraditionally, the evolution of customary international law was understood as a gradual process: in some idealized model, we might see first a few states, and then a few more, implicitly agreeing to follow a practice, and then we would gradually begin to see additional states doing the same thing. We would also gradually accumulate evidence that these various states are acting in such a way because they consider themselves legally bound to do so. Then, over time, we’ll see more and more states following suit both in word and deed, until at some point we can say with a great deal of confidence that such and such has evolved into a binding norm of customary international law.
That’s the idealized process through which norms of customary international law develop. In real life, of course, it’s rarely so neat and tidy. In fact, much of the time, the evolution of customary international law looks less like a gradual, trouble-free emergence of consensus than a continual process of contestation—a continual process of resistance and conflict between states, if you will. By “conflict” the author doesn’t necessarily mean armed force, but rather diplomatic conflict of all sorts: dueling demarches, dueling public statements, and so on.
Norms relating to humanitarian intervention offer a typical example. We are in a period in which we are seeing a norm struggling to emerge, if you will, but that process is not a smooth one, has not been a smooth one, and is unlikely to be a smooth one in the future. Indeed, when we think about norms related to humanitarian intervention or the Responsibility to Protect, if anything what we have seen has been a process of reaction, counter-reaction, counter-counterreaction and counter-counter-counter-reaction. We are still going through that cycle
Limiting What We Can Eat: A Bridge Too Far?
Get PDFInnovative mayors across America are seeking to shape personal decisions about diet and physical activity, taking a page from tobacco control. But attempts to limit personal choices of what to eat have drawn the ire of vocal critics and sometimes the rebuke of judges, with former New York City mayor Michael Bloomberg’s limit on soda portions becoming a key flash point. The public broadly accepts state power to control infectious diseases, but often draws a line at limiting dietary choices. The author wants to dispel some of the well-worn arguments in the obesity wars
Place, Not Race: Affirmative Action and the Geography of Educational Opportunity
Get PDFThe discourse in America about segregation is dishonest. On the surface, we pretend that the values of Brown v. Board of Education have been met, although most of us know in our hearts that the current system of public education betrays those values. In this essay, I reflect on how residual, defacto segregation and the stratified architecture of opportunity in our nation contribute to the achievement gap that has made race-based affirmative action necessary. Despite the Supreme Court\u27s compromise decision in Fisher v. Texas, affirmative action is on life support. As this essay goes to print, the Supreme Court has heard argument, but has not issued a decision in the case of Schuette v. Coalition to Defend Affirmative Action, which challenges the ability of Michigan voters to ban affirmative action. At oral argument, conservative justices seemed inclined to uphold the ban. Conservative opponents will continue to attack the policy in courts and through politics however the Court rules: there will always be another Abigail Fisher. Eight states have banned affirmative action programs: six through ballot measures (California (1996), Washington (1998), Michigan (2006), Nebraska (2008), Arizona (2010), and Oklahoma (2012)); one by executive order (Florida (1999)); and another by legislative act (New Hampshire (2011))