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A Cure Worse than the Disease? The Impact of Removal on Children and Their Families
Get PDFRemoving children from their parents is child welfare’s most drastic
intervention. Research clearly establishes the profound and irreparable
damage family separation can inflict on children and their parents. To ensure
that this intervention is only used when necessary, a complex web of state and
federal constitutional principles, statutes, administrative regulations, judicial
decisions, and agency policies govern the removal decision. Central to these
authorities is the presumption that a healthy and robust child welfare system
keeps families together, protects children from harm, and centers on the needs
of children and their parents.
Yet, research and practice—supported by administrative data—paint a
different picture. They suggest a system that haphazardly and needlessly
removes children from parents through an impersonal process driven by the
convenience of the system at the expense of families. In fact, some of the
processes designed to protect children from harm directly cause trauma to
them. Too often, child welfare professionals remove children based on
misplaced confidence in that safety intervention and without careful
consideration of the consequences thereof. Whenever professionals remove
children from their parents without carefully balancing the risks created by that
intervention, they are culpable for the harm to children and their parents.
This Article focuses on how children and parents interacting with the child
welfare system experience the removal process, the genesis of a foster care
case. It analyzes the gaps and emergent issues in practice, research, and policy
related to child removal. The Article concludes with specific policy and
practice recommendations aimed at curbing child welfare’s reliance on
removal to foster care as its predominant safety intervention
The Parent Trap: Equality, Sex, and Partnership in the Modern Law Firm
Get PDFThe fight for women’s equality in law has achieved a lot. Women have
made up nearly half of law students and law firm associates for the last two
decades. Despite this progress, the partnership ranks of law firms are
profoundly and intolerably sex segregated and will remain so for the
foreseeable future. Our profession, which has fought for and helped to achieve
legal equality on behalf of so many, is itself dogged by intractable inequality.
A standard set of solutions, which address structural barriers within law firms
and the effects of cognitive biases, have been urged for decades and yet have
failed to deliver any significant improvement.
A persistent feedback loop lies at the heart of this intractable gender
inequality in law firm leadership and impedes women’s progress to
partnership. Gender stereotypical expectations and senses of obligation lead
to differences between men and women with respect to their work experience
and income, which, in turn, lead to couples making rational, income
maximizing (and gender stereotyped) decisions about parenting and managing
the home, which reinforce gender stereotypes. Both men and women are caught
in this feedback loop. Continuing to focus on fixing law firms so that they are
more equal for women cannot disrupt this feedback loop because it ignores the
other half of the population—men—who are stuck in the loop.
The breadwinner stereotype is the culprit behind men’s part of the feedback
loop. Women’s equality requires it to be dismantled. Persuading men to take
paternity leaves of a month or two by themselves with their new babies has
eroded the breadwinner stereotype in countries as hard working as, and even
more socially conservative than, ours. Many law firms already offer fully paid
paternity leaves of over a month, but few men take enough of it to make a real
difference. Paternity leaves need to be carefully designed to exploit rather than
buck the breadwinner stereotype. The tweaks to existing paternity leave
policies are relatively small but will require the commitment of leaders in law
firms to make such policies successful. The proposal offered here is not a silver
bullet that will bring down gender inequality. It is, however, likely to help a
lot, improve the lives of men, their children, and their spouses, and hurt no one
Appraisal Confusion: The Intended and Unintended Consequences of Delaware\u27s Nascent Pristine Deal Process Standard
Get PDFIn a merger, shareholders who believe the consideration being offered is too low have a statutory right to seek fair value for their shares through a judicial process called appraisal. In recent years, there has been an explosion in the number of appraisal actions leading some to argue that the remedy was being abused. In this Article, we argue that a recent line of cases by the Delaware Supreme Court that places heavy reliance on merger price as part of the judicial determination of fair value in appraisal proceedings is misguided and may lead to unintended consequences. Rather than rely on merger price in the determinations of fair value for publicly traded companies, courts should either eliminate the appraisal remedy for publicly traded corporations altogether or look to the unaffected stock market price of merger targets
Solving the Problem of Social Cost Through Legislative Pressure: A Case Study of the Coase Theorem as Applied to the College Basketball Shoe Scandal
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Scènes à Faire in Music: How an Old Defense is Maturing, And How It can be Improved
No full textFirst, this Comment will provide background on the test for copyright infringement used by the Fourth, Eighth, and Ninth Circuits. Second, the Comment will address what scènes à faire is and how recent cases have treated scènes à faire in music. Third and finally, the Comment will offer a suggestion as to a proper scènes à faire determination and analyze how scènes à faire should be applied
Unqualified Ambassadors
Get PDFIn making appointments to the office of ambassador, U.S. presidents often select political supporters from outside the ranks of the State Department’s professional diplomatic corps. This practice is aberrational among advanced democracies and a source of recurrent controversy in the United States, and yet its merits and significance are substantially opaque: How do political appointees compare with career diplomats in terms of credentials? Are they less effective in office? Do they serve in some countries more than others? Have any patterns evolved over time? Commentators might assume answers to these questions, but actual evidence has been in short supply. In this context, it is difficult for the public to evaluate official practice and hold accountable those who wield power under the Appointments Clause.
This Article helps to correct for the current state of affairs. Using a novel dataset based on a trove of previously unavailable documents that I obtained from the State Department through requests and litigation under the Freedom of Information Act (“FOIA”), the Article systematically reveals the professional qualifications and campaign contributions of over 1900 ambassadorial nominees spanning the Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama administrations, along with the first two years of Donald Trump. In doing so, the Article substantially enhances the transparency of the appointments process and exposes conditions of concern: not only are political appointees on average much less qualified than their career counterparts under a variety of congressionally approved measures, but also the gap has grown along with the commonality and size of their campaign contributions to nominating presidents. These conditions raise the possibility that campaign contributions are generating an increasingly deleterious effect on the quality of U.S. diplomatic representation abroad. The Article concludes by identifying and defending the constitutional merits of plausible legal reforms, including Senate rule amendments and statutory measures to regulate qualifications and enhance transparency
The Next Big Gun Case: The Resurrection of the Second Amendment at the New Roberts Court
Get PDFThe Supreme Court has denied certiorari in around one hundred Second Amendment cases since deciding District of Columbia v. Heller in 2008. Since then, the Justices have issued only one bona fide firearms decision, which brought state and local laws within the Second Amendment’s scope. At the same time, the right to keep and bear arms continues to loom in thousands of lawsuits either recently decided or docketed in the lower courts. The facts of these cases stray from Heller’s now-blackletter rule that handguns may be kept and used in the home for self-defense. And so, the lack of applicable guidance places lawmakers and judges in a predicament.
Unsure of how to proceed, legislatures pass firearms laws which are both over- and under-inclusive. These are immediately challenged in court, often before enactment. Presiding judges from all twelve relevant circuit courts express their confusion on how to proceed in written opinions. Some statements are not-so-subtle prods at the Justices to show more courage and accept the next big gun case. The irony is that the Roberts Court typically acts courageously. Over the past five years, the Justices have decided many tough cases revolving around six of the ten vaguely written Bill of Rights guarantees and plenty more involving the equally ambiguous Fourteenth Amendment. Of the four neglected provisions—the Second, Third, Ninth, and Tenth Amendments—the latter three are rarely invoked in a petition for certiorari. The Second Amendment, on the only hand, often plays a starring role.
Therefore, the Court should show similar courage and further elaborate on Heller’s meaning. This Article formulates a framework which demonstrates that the Court should expeditiously grant certiorari when four factors coalesce: (1) lawmakers are hamstrung in deciphering constitutional boundaries; (2) echoes of confusion ripple through lower courts lacking definitive guidance; (3) an appropriate case places the issue squarely on the table; and (4) the Supreme Court is the best/only authoritative referee able to settle the matter.
Most Second Amendment cases easily surmount this high hurdle. The Article identifies two areas in greatest need of clarity: prohibitions or restrictions on assault weapons/large capacity magazines and public carry. Each continue to produce cases that are ripe for the Court’s consideration. When the newly configured Roberts Court takes its next big gun case, it should come from these areas of unsettled law. In the end, it is past time for the Supreme Court to fulfill its promise in Heller to further elaborate on the Second Amendment’s individual right to keep and bear arms