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Full-Text Articles in Law
The Real Wrongs Of Icwa, James G. Dwyer
The Real Wrongs Of Icwa, James G. Dwyer
Faculty Publications
Haaland v. Brackeen rejected federalism-based challenges to the Indian Child Welfare Act (ICWA) but signaled receptivity to future challenges based on individual rights. The adult-focused rights claims presented in Haaland, however, miss the mark of what is truly problematic about ICWA. This Article presents an in-depth, children’s-rights based critique of the Act, explaining how it violates a fundamental right against state exertion of power over central aspects of persons’ private lives to their detriment for illicit purposes. In fact, the Act’s defenders are complicit in the same sort of government violence that motivated ICWA’s enactment—erasing aspects of children’s heritage …
Smith's Last Stand? Free Exercise And Foster Care Exceptionalism, James G. Dwyer
Smith's Last Stand? Free Exercise And Foster Care Exceptionalism, James G. Dwyer
Faculty Publications
Part I first situates Fulton [Fulton v. City of Philadelphia] within two broader contexts—the clash between social equality rights for sexual minorities and religious freedom, and a pattern of eliding children from legal contests over their lives. It then explains why the standard constitutional framing of social equality versus religious freedom contests is improper when the state is acting as guardian and proxy for children or other non-autonomous persons. Part II sets out a proper framework for analyzing these conflicts, elucidating the scope and nature of the state’s parens patriae authority—a lacuna in constitutional jurisprudence. Part III applies …