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Adopted into Debt?
No full textWhile adoption procedures differ from state to state, every state uses some variation of the best interest of the child standard to determine the outcome of an adoption proceeding. To gather information for the best interest determination, states have created the home study process to investigate prospective adoptive families. A home study allows social workers and/or private adoption agencies to look at the needs of the child, the ability of the parents to care for the child, the existing familial dynamics, the safety of the physical home, the perceived moral character and reputation of the parents, mental and physical health conditions in the family, the financial state of the family, and similar factors. It may seem like a given that an adoptive family must have a certain level of economic resources to care for a child, but home studies often go beyond income and assets, instead factoring in current debts, credit scores, and bankruptcies.
This Article begins by identifying the broad discretion that states are given when investigating an adoptive family’s financial state, including looking at debt, credit scores, and past bankruptcies a family has. It then evaluates some ways the debt of adoptive parents may harm the child and how debt may impact a child differently based on the type of adoption. The Article then turns to how debt impacts the “non-ideal” family in unique ways and how the broad discretion to consider debt in the best interest of the child determination allows for social workers and/or adoption agencies to restrict legal family recognition to the normative ideal family. Finally, the Article looks at ways to avoid debt serving as justification to deny family recognition based on the biases of the social worker and/or adoption agency. This section looks both at the ways to modify the home study’s consideration of debt and changes to limit the need to consider a family’s debt.
Overall, this Article argues that the current discretion for how debt is used in the best interest of the child standard allows for biases against the non-ideal family. To solve this, this Article argues for changes both within the adoption process and to laws and social programs beyond adoption. These solutions include developing clear criteria for evaluating a family’s financial situation, adapting parentage laws to reduce the need to adopt, expanding debt forgiveness programs, and creating social support programs for all families. Recognizing how bias can enter adoptions through consideration of a parent’s financial situations will not solve every issue with the adoption process; however, it offers a place to start recognizing the problems and developing solutions
Public-Private Partnerships After Murthy v. Missouri
Full text linkThis Essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the constitutionality of information sharing between federal agencies and social media companies. The litigation has been a good and a bad teacher. On one hand, the lower court decisions made legible the risks to free expression, accountability, transparency, and intimate privacy posed by government-industry collaborations. On the other hand, the litigation chilled information sharing between federal agencies, state election officials, and social media companies at the moment that such collaboration could and should help protect against foreign malign influence operations designed to undermine the integrity of the 2024 elections and beyond. We must rebuild public-private collaborations that protect democratic processes, guided by these lessons. Government can work cooperatively with tech companies without sacrificing free speech, but it must do so with commitments to accountability, transparency, and intimate privacy in mind
The Solicitor General, Consistency, and Credibility
Full text linkThis Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on the meaning of the law, and to unpack the connections between consistency and credibility.
To assess these questions, we build an original dataset of 131 cases, dating from 1892 to the close of the Court’s 2022 Term, that include such reversals. A close reading of the cases and associated briefing and oral argument transcripts confirms that changes in the government’s litigating position have become more common in recent decades—but it also reveals significant blind spots in the prevailing picture, which depicts positional changes as a function of political polarization and shifts in presidential administrations. Reversals happen for a variety of (often overlapping) reasons, many of which stem from the SG’s unique role in coordinating litigation across a vast and constantly changing federal government. Indeed, our study calls into question the idea that ideological swings associated with changes of presidential administrations can be isolated, either in theory or in practice, from other sorts of legal, social, and technological changes that shape the government’s understanding of the law. It also shows that the connection between consistency and credibility, while intuitive at first blush, rests on a formalist understanding of law and an unpersuasive equation of the judiciary and the executive.
These insights are particularly important today, given the Justices’ willingness to jettison their own longstanding precedents while simultaneously hamstringing administrative agencies’ ability to update or modify policies. The Court’s decision in Loper Bright Enterprises v. Raimondo, overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., endorsed an understanding of the law and legal interpretation in which even the hardest questions have single “best” answers—and, once ascertained, the meaning of the law is fixed. As we show, the Justices’ reactions to litigation reversals by the government rest on similar premises. Given that the SG has powerful incentives to offer arguments that appeal to the Justices, the Court’s skepticism of litigation reversals risks freezing legal interpretation by the government actors who often are best situated—by virtue of democratic accountability and on-the-ground experience— to consider the tradeoffs between stability and change
Common Law Executive Privilege(s)
Full text linkThere are few Supreme Court cases that enjoy as much widespread support as the unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information. But that disagreement does not extend to Nixon, the unquestioned jurisprudential foundation for the doctrine of executive privilege. Closer inspection shows, however, that this foundation is not a stable one, but one constructed from unnecessary, ill-considered dicta.
As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an issue that was neither briefed nor contested by the parties—whether the information at issue was protected by a constitutional evidentiary privilege. The executive branch has weaponized that conflation in the context of congressional oversight and created prophylactic constitutional doctrines to thwart inquiry into congressional need. The conflation at the heart of Nixon has also created a mismatch in scholarship, such that the recent scholarship on secrecy, common law privileges, and FOIA practices is almost entirely divorced from work on congressional oversight and executive privilege. That partition exists because of Nixon and despite the fact that the same types of information and accountability interests are at stake.
This Article attempts to sever the entrenched conflation at the heart of Nixon and current oversight disputes and reestablish—in the context of congressional oversight—the distinction between common law executive privileges and the respective constitutional authority of the two branches. That conflation is the foremost obstacle to resolution of the repeated, intractable interbranch disputes over information. But such resolution is only possible if both Congress and the executive branch are willing to forgo some of their entrenched categorical positions, including the congressional refusal to recognize the legitimacy of common law privileges. In addition, severing that conflation will restore to conversations about congressional oversight the policy and accountability considerations that animate these common law privileges and also create a new common law paradigm of congressional oversight that provides for straightforward doctrinal and theoretical resolution of intractable constitutional questions that have recently confounded courts and scholars, such as a former president’s authority to assert executive privilege or the ability of the government to protect sensitive information held by third parties
Negative Trading in Congress
Full text linkWe investigate negative trading, such as short selling, by members of Congress. We find, based on a new comprehensive dataset of trades by members of Congress, that negative trading not only is common, but also is associated with positive abnormal financial returns. Simply put, members of Congress make money when they bet on stock price drops.
In contrast, we do not find a similar association for long positions taken by members of Congress. In other words, there is an asymmetry between “positive” versus “negative” congressional trading. This asymmetry has multiple implications for public policy.
Our main message is that proposals to regulate congressional trading should reflect key differences between positive and negative trading, and we show how current approaches fail to do so. Depending on how one balances efficiency against fairness concerns, negative trading by members of Congress could be more lightly regulated, or even promoted rather than suppressed. Our empirical evidence also suggests that disclosure rules should distinguish among individual stocks, mutual funds, and stock options. Finally, our results support the academic critique of Tobin’s Q as an unreliable measure of firm value
The Uptake Puzzle in Expungement of Criminal Records
Full text linkExpungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only one to six percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring—and new laws are idling on the books—suggests that rights-creation in this space has not been efficacious. This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization.
This Article tackles the uptake puzzle in expungement of criminal records. Employing an access-to-justice framework, the Article presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions. We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it. We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy. These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully. Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial. These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law. The Article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle. With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable.
In addition, the Article offers three broad implications from our research that point the road forward on reform. First, we find that legislatures play a dominant role in restricting access to the expungement remedy. State expungement statutes are laden with access barriers, which create downstream impacts on courts and agencies charged with implementing the expungement remedy. Second, we suggest that, in each state, the institutions responsible for effectuating expungement relief have developed de facto “access policies” that serve an adjunctive role to substantive expungement policy. Without exception, we find that states’ access policies are internally inconsistent and work at cross-purposes with the stated goals of expungement. Third, we point to the limits of automatic expungement in overcoming the access barriers we describe. What is commonly depicted as automatic expungement in fact is a state-initiated process that is plagued by informational deficits in access to criminal record data, making it difficult to match eligible records against state legislative eligibility criteria. We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants and revise their expungement laws to increase uptake
Nicholle Vandy named an American Constitution Society Next Generation Leader
Full text linkFor the fourth consecutive year, an Indiana University Maurer School of Law student has been chosen as an American Constitution Society Next Generation Leader.
Nicholle Vandy, a 2L from Knox, Indiana, is one of three Indiana law students selected for the honor.
“I’m excited to introduce this year’s class of Next Generation Leaders, who represent the future of the progressive legal movement at a time when we need them more than ever to join us in the fight for the rule of law and our democracy,” said Zinelle October, ACS Interim President
Moving Slow and Fixing Things
Full text linkSilicon Valley, and the U.S. tech sector more broadly, have changed the world in part by embracing a “move fast and break things” mentality popularized by Mark Zuckerberg. While it is true that the tech sector has attempted to break with such a reactive and flippant response to security concerns, including at Microsoft itself through its Security Development Lifecycle, cyberattacks continue at an alarming rate. As a result, there are growing calls from regulators around the world to change the risk equation. An example is the 2023 U.S. National Cybersecurity Strategy, which argues that “[w]e must hold the stewards of our data accountable for the protection of personal data; drive the development of more secure connected devices; and reshape laws that govern liability for data losses and harm caused by cybersecurity errors, software vulnerabilities, and other risks created by software and digital technologies.” What exact form such liability should take is up for debate. The defect model of products liability law is one clear option, and courts across the United States have already been applying it using both strict liability and risk utility framings in a variety of cases. This Article delves into the debates by considering how other cyber powers around the world—including the European Union—are extending products liability law to cover software, and it examines the lessons these efforts hold for U.S. policymakers with case studies focusing on liability for AI-generated content and Internet-connected critical infrastructure
Outdated U.S. safety net leaving poor communities exposed to “climate strains”
No full textAmerica’s safety net is failing to protect its most vulnerable citizens from the growing pressures of climate change, according to new research from an Indiana University Maurer School of Law Professor Andrew Hammond.
In a new article forthcoming in the Iowa Law Review, Hammond argues that while policymakers, the press, and the public tend to focus on climate “shocks” like hurricanes and wildfires, millions of Americans face overlooked climate “strains”—the everyday stresses of extreme heat, deteriorating air quality, and failing infrastructure that disproportionately affect low-income Americans.
Hammond’s paper, “Climate Strains and the Safety Net,” found that poor Americans are facing heightened exposure to these gradual, ongoing environmental events and changes due in large part to substandard housing, limited access to cooling technology at home, at work, or at school, and greater challenges to accessing quality health care