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Multi-Parent Custody
Get PDFIn recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a maximum of two legal parents. While commentators undoubtedly will continue to debate the wisdom of multi-parentage recognition, it is clear both that multi-parentage has arrived and that its arrival raises many novel and important questions across a variety of areas of the law. Proponents and opponents of multi-parentage agree that child custody represents one of the core areas in which multi-parentage recognition will raise complicated questions that warrant careful consideration. It is inevitable that, just as child custody disputes arise in two-parent families, such disputes also will occur in multi-parent families. As a result, legislatures and courts soon will face the task of deciding how to approach custody disputes involving children who have more than two legal parents. This Article examines a number of the core initial questions that multi-parentage recognition will raise in the child custody context. These questions include: (1) whether parents who share an intact relationship and are involved in a dispute with another parent should be considered a single entity or separate entities for purposes of the custody determination; (2) whether legal standards employing presumptions in favor of joint custody, which have become increasingly popular in the two-parent custody context, should extend to multi-parent custody disputes; and (3) to what degree the law should encourage settlement and defer to agreements reached by the parties in multi-parent custody disputes. The Article concludes by setting forth detailed proposals regarding how lawmakers and courts should resolve these essential questions
Firearms and the Homeowner: Defending the Castle, the Curtilage, and Beyond
Get PDFIn the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired two shots at the Black teenager, hitting him in the face and the arm. A few days later, a Caucasian woman and her friends in upstate New York, looking for a party, drove up the wrong driveway. The homeowner came out of his house with a shotgun and fired two shots at the car; one of those shots killed the woman. That same day in South Florida, two Instacart delivery shoppers were having trouble finding a customer\u27s home and mistakenly pulled up onto the wrong property. As they were trying to leave, the homeowner came out of his house and fired three shots at them, hitting the car. A few nights later, a cheerleader got into a car in a supermarket parking lot in Texas, thinking it was her own. Startled when she saw a man she didn\u27t know in the passenger seat, she went back to her friend\u27s car, then realized she had gotten into the wrong car. The man who was in that car shot the cheerleader and one of her friends as she was trying to apologize to him. When we think of gun violence, we usually think about mass shootings or drive-by shootings by gang members. We don\u27t expect to get shot if we knock on the wrong door or get into the wrong car. Recently, the United States has seen a marked increase in gun violence initiated by homeowners and other individuals attempting to protect their property. Regardless of whether these tragic events were the result of ringing the wrong doorbell or driving up the wrong driveway, many people may be surprised to learn that the individuals pulling the trigger may not be held criminally liable for their actions if they are in a state with a relaxed form of a little-studied criminal law defense called the defense of habitation that allows homeowners and others to use deadly force in defense of their homes, cars, and workplaces, even if they are not being threatened with deadly force. This Article examines the defense of habitation and issues of accountability arising from the use of deadly force by homeowners and others who can utilize this defense
Opportunistic Breach of Contract
No full textLaw and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We show that, even from a purely consequentialist perspective, disgorgement remedies may be normatively warranted, especially when involving sellers’ breach. Recent experimental evidence revealed that the preferences and reactions of ordinary people are in line with our evaluation of the effects of opportunistic breach
The Volokh Briefs: Drawing the Line Against Compelled Speech in Public Accommodations
No full textAlthough I generally support the result in 303 Creative, my aim here is neither to fully explain nor to defend the decision. That’s a project for another day. Instead, in this symposium commemorating Professor Volokh’s work, my aim is to outline the legal position he developed, which aligned with and may have influenced the decision. I’ll focus on what I believe are the most important briefs in three key cases: Elane Photography (2013), Masterpiece Cakeshop (2018), and 303 Creative (2023) itself. Collectively, I’ll refer to these as “the Volokh briefs.” While others contributed, Volokh and his First Amendment amicus clinic at UCLA took the laboring oar in conceiving the arguments, drafting the briefs, and providing citation support. Volokh was the principal mastermind and workhorse.
As part of tracing this intellectual journey, I will show how the Volokh briefs evolved and matured over time and how they were distinct from others taking the side of the objecting service providers. Volokh’s view of compelled speech gave breathing room for individuals’ vital speech interests while leaving plenty of space for government to protect people from discrimination based on status in most commercial transactions. Although the Supreme Court stopped short of fully adopting it, the methodology in the Volokh briefs provides a roadmap for drawing and navigating the lines necessary to preserve the core interests on both sides. I’ll pause to consider arguments from critics who responded directly to the briefs
Conducting Research with Highly Portable MRI in Community Settings: A Practical Guide to Navigating Ethical Issues and ELSI Checklist
No full textHighly portable and accessible MRI technology will allow researchers to conduct field-based MRI research in community settings. Previous guidance for researchers working with fixed MRI does not address the novel ethical, legal, and societal issues (ELSI) of portable MRI (pMRI). Our interdisciplinary Working Group (WG) previously identified 15 core ELSI challenges associated with pMRI research and recommended solutions. In this article, we distill those detailed recommendations into a Portable MRI Research ELSI Checklist that offers practical operational guidance for researchers contemplating using this technology
The Roberts Court and the Unraveling of Labor Law
Get PDFLabor law comprises several doctrines and procedures that oversee the relationships between employers, unions, and the workers they represent. These doctrines—the duty of fair representation, exclusivity, good-faith bargaining, captive-audience speech, and rights of equal access—are all component threads to a tapestry designed to facilitate widespread organizing and collective bargaining. Yet the Roberts Court has brushed aside how entwined these threads are and, in so doing, has undercut labor law’s far-reaching mandate. Likewise, this Court has disregarded the expertise of the National Labor Relations Board, the administrative agency tasked with weaving together specific legal canons in ways that reflect labor’s broad policy initiatives. This Court’s 2018 decision in Janus v. AFSCME remains the most blatant upending of embedded labor doctrine in history. But it is not the last. Rather, in a series of maneuvers, the Roberts Court has unraveled interwoven labor strands without regard for the careful balancing of interests or the core principles labor’s entire legal system strives to maintain. What remains is a mish-mash of compromising doctrines that, when viewed apart from each other, are hard to reconcile with expanding protections of individual liberties. That is, these remain until they too are unwound by a judiciary scripted to play only a minor role in labor’s specialized regime. In this Article, I describe ongoing efforts to extend Janus’s reasoning and interpretive methods as a roadmap to over-riding collective bargaining obligations, and as a series of roadblocks to future labor reform. But these routes have a toll. As the Court considered another high-profile labor case this past term, the aftermath of a worldwide pandemic has shined new light on workplace inequity and renewed public support of organized labor. As such, the Roberts Court’s chipping away at labor strike protections and preemptive guardrails in Glacier Northwest, Inc. v. International Brotherhood of Teamsters has profound implications for more than just labor law and the labor movement. Out of step with public preferences again, Glacier Northwest, Inc. and other Janus-extending decisions are central in debates on the Court’s legitimacy and its role in shaping social and economic landscapes
The Good, the Bad, and the Unconstitutional: State Attempts to Solve the Defendant Class Action Problem
Get PDFWhile the overwhelming majority of class action lawsuits filed in this country are plaintiff class actions--with named plaintiffs representing larger classes of plaintiffs--Rule 23 of the Federal Rules of Civil Procedure technically permits plaintiffs to sue a named defendant representing a class of defendants as well. However, such suits are exceptionally rare--so much so that they have been described as “as rare as unicorns.” Still, when defendant classes emerge, they create two distinct problems. First, defendant classes cause both federal district courts and their state counterparts severe administrative headaches. Second, defendant classes trample on the due process rights of the defendants who are bound by their judgments. At least partially in response to these administrative and due process concerns, states have experimented with fixes to the defendant class action device in their equivalent class action rules. This Note categorizes and analyzes those variations on Federal Rule 23. It shows that Maryland\u27s solution of plaintiff-only classes is good; Mississippi and Virginia\u27s solution of nixing class actions altogether is bad; and Iowa, New Hampshire, and North Dakota\u27s solution of barring opt-outs from defendant class actions is quite clearly unconstitutional. Ultimately, this Note concludes that--given the due process issues deeply embedded in the defendant class action device--other states and the federal judiciary should follow the lead of Maryland and abrogate defendant classes altogether. However, in the alternative, it argues that, at the very least, state statutes and rules barring a defendant from opting out of a defendant class violate the Fourteenth Amendment\u27s Due Process Clause, and the Supreme Court should intervene as soon as a case comes to its attention
Does a Removal Power Exist?: Joseph Story and Selective Living Originalism
Get PDFThis Article analyzes Joseph Story’s discussion of the power to remove executive officers in his famous Commentaries on the Constitution of the United States. This Article’s analysis of Story’s views casts a fresh light on the modern Court, suggesting that the Supreme Court practices living originalism by favoring originalist sources that support its own views of what political arrangements best meet current needs. In spite of burgeoning interest in the unitary executive theory, which maintains that the Constitution grants the President unfettered removal authority, Story’s landmark treatment has not received sustained attention. Yet Joseph Story served as an early Supreme Court Justice, wrote the most highly regarded early treatise on constitutional law, and made Harvard Law School a leading institution through his teaching and scholarship. His views deserve to be taken seriously. Story’s Commentaries suggest that the Constitution does not empower the President to unilaterally remove executive officers. Instead, Story explains, removal occurs by operation of law when the Senate approves a new nominee to replace an incumbent official that the President wishes to replace. Story’s view enjoys substantial originalist support. Indeed, evaluation of the evidence supporting this view shows that the Supreme Court’s contrary view stems from selective originalism—where only a portion of constitutionally germane text is analyzed and only a moment of constitutional history is given any weight
Informed Bystanders\u27 Duty to Warn
Get PDFShould bystanders with credible knowledge about prospective harm owe a duty of care to future victims? This urgent question comes up in various contexts, from former employers who withhold information about a serial harasser to data brokers who are silent about stalkers that track personal information. Under established common law, the “No Duty to Act” (“no-duty”) rule generally does not require bystanders to warn strangers. Carving out an exception to this rule decades ago, Tarasoff v. Regents of the University of California imposed a duty on a mental health professional to warn a prospective victim about the risk posed by a dangerous patient. Yet existing tort scholarship and doctrine undertheorize the grounds for such a duty to warn, and courts struggle to apply the duty in appropriate cases beyond the medical context. Offering a fresh take on Tarasoff, this Article makes the case for a duty to warn owed by those I define as “informed bystanders.” I first identify four criteria that courts tend to implicitly consider in deciding whether to recognize the duty: Expertise; Certainty; Cost; and Position of Power or Special Capacity. I then question the theoretical necessity of expertise as one of these criteria. Next, I advance two arguments to support informed bystanders’ duty to warn. The first argument—couched both in the common law’s self-interested individualism and in feminist legal theory—posits that the no-duty rule’s default should be flipped to generally recognize a duty to warn. According to the second, narrower argument, the no-duty rule need not be changed. Instead, existing exceptions to the rule should apply to the special relationship between informed bystanders and future wrongdoers or victims. Finally, I address potential pushbacks, contemplate models for implementing the duty, and flag key cross-private law implications. The Article thus begins a crucial conversation on tort law’s nasty habit: allowing bystanders to withhold information that could prevent harm to others
If Lived Experience Could Speak: A Method for Repairing Epistemic Violence in Law and the Legal Academy
Get PDFTerrell Carter grew up only a stone’s throw from Drexel University, the institution of higher learning where the other coauthor of this Article, Rachel López, would find her academic home years later. Even as a child, Terrell remembers feeling like other institutions that were miles away, like State Correctional Institution Graterford where he would spend most of his adult life, were much more proximate. Paradoxically, he would later come to learn that behind the walls of institutions like Drexel, academics like Rachel would develop ideas and theory that would shape his fate and define his existence behind other walls. Through Participatory Law Scholarship (PLS)—legal scholarship written in collaboration with those without formal legal training, but expertise in law’s injustice through lived experience—Terrell and Rachel seek to dismantle the walls upon walls that divide the ideals of law from the lived experience of it. Building from the experience of coauthoring Redeeming Justice, their award-winning article that contributed to the liberation of Terrell less than a year after its publication, this Article explores the role that participatory methods in legal scholarship can play in repairing the epistemic harm done by law and by academics to the most marginalized in our society. PLS does this by centering experiential knowing as a source of legal expertise so that those for whom the law is most consequential can see themselves reflected in it and know that they are and can be a part of the making of legal meaning. PLS strives to ensure that people who are formally educated in the law are not the only ones who are able to engage in legal scholarship and the development of legal theory. This approach to legal scholarship is grounded in the belief that the experience of being marginalized by the law uniquely positions someone to critique it. Ultimately, PLS seeks to democratize knowledge production by validating alternative ways of knowing what the law is and what changes are needed for it to realize its full potential