Law Commons^™

Making A Reasonable Calculation: A Strategic Amendment To The Idea, Hetali M. Lodaya

University of Michigan Journal of Law Reform

The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas Cty. School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams …

Post-Accountability Accountability, Nicole Stelle Garnett

University of Michigan Journal of Law Reform

Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality—since parents’ choices would serve an accountability function—demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The questions of …

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack

University of Michigan Journal of Law Reform

Opening remarks by Justice Bridget McCormack, Michigan Supreme Court on November 6, 2015.

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. …

Left Behind: The Dying Principle Of Family Reunification Under Immigration Law, Anita Ortiz Maddali

University of Michigan Journal of Law Reform

A key underpinning of modern U.S. immigration law is family reunification, but in practice it can privilege certain families and certain members within families. Drawing on legislative history, this Article examines the origins and objectives of the principle of family reunification in immigration law and relies on legal scholarship and sociological and anthropological research to reveal how contemporary immigration law and policy has diluted the principle for many families—particularly those who do not fit the dominant nuclear family model, those classified as unskilled, and families from oversubscribed countries—and members within families. It explores the ways in which women and children, …

The Incremental Retributive Impact Of A Death Sentence Over Life Without Parole, Michael L. Radelet

University of Michigan Journal of Law Reform

In this paper, the author takes a closer look at retribution, which is the primary justification for the death penalty today in the United States and the main component of the additional punishment imposed by the death penalty over and above life imprisonment without parole (LWOP). While all criminal punishments, to varying degrees, punish both the inmate and his or her family, this paper argues that the death penalty’s added punishment over LWOP often punishes the family just as much as the inmate, and after the execution the full brunt of the punishment falls on the family. This added impact …

Restructuring Local School Wellness Policies: Amending The Kids Act To Fight Childhood Obesity, Rebecca Edwalds

University of Michigan Journal of Law Reform

Childhood obesity is a major problem plaguing the United States. Over one-third of children are overweight, and there is little indication that this trend will reverse in the near future. The federal government has attempted to combat childhood obesity through the National School Lunch Act, which regulates the quality of foods federally subsidized schools may serve to children, and provides broad goals for physical activity. These basic goals leave extensive room for states to implement different standards, and they are not sufficient to effectively confront the childhood obesity problem. This Note proposes amendments to the National School Lunch Act that …

Special Kids, Special Parents, Special Education, Karen Syma Czapanskiy

University of Michigan Journal of Law Reform

Many parents are raising children whose mental, physical, cognitive, emotional, or developmental issues diminish their capacity to be educated in the same ways as other children. Over six million of these children receive special education services under mandates of the Individuals with Disabilities Education Act, called the IDEA. Once largely excluded from public education, these children are now entitled to a “free appropriate public education,” or FAPE. This Article argues that the promise of the IDEA cannot be realized unless more attention is paid to the child’s parents. Under the IDEA, as in life, the intermediary between the child and …

Bio Family 2.0: Can The American Child Welfare System Finally Find Permanency For 'Legal Orphans' With A Statute To Reinstate Parental Rights?, Meredith L. Schalick

University of Michigan Journal of Law Reform

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give …

It's Time To Start Showing A Little Restraint: In Search Of A Compromise On Federal Seclusion And Restraint Legislation, Cali Cope-Kasten

University of Michigan Journal of Law Reform

In 2009, the United States House of Representatives heard testimony that hundreds of students had been injured in schools by teachers secluding or physically restraining them. Congress had never legislated on seclusion and restraint, but the alarming allegations of student injuries and deaths prompted many parents to demand a ban on the use of the techniques in schools. In the continuing debate, school officials have protested that seclusion and restraint are important tools for teachers to protect their classrooms from out-of-control students. Torn between these two extreme positions, Congress has twice attempted — but failed — to pass federal legislation …

Put The Town On Notice: School District Liability And Lgbt Bullying Notification Laws, Yariv Pierce

University of Michigan Journal of Law Reform

Congress could mitigate the problem of lesbian, gay, bisexual, and transgender (LGBT) student bullying by requiring that teachers and school officials report all bullying incidents to their school district administrators. Many school districts are not aware of the prevalence of LGBT bullying and the extent to which each school protects, or fails to protect, its LGBT students compared to other harassed students. LGBT students often encounter difficulty demonstrating that their school district has a policy or custom of deliberate indifference toward their equal treatment when a school does not equally protect an LGBT student from peer-to-peer bullying because of the …

The Probate Definition Of Family: A Proposal For Guided Discretion In Intestacy, Susan N. Gary

University of Michigan Journal of Law Reform

Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more intestate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than …

Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli

University of Michigan Journal of Law Reform

This Article traces the evolution of the Uniform Probate Code's (UPC) broad equality framework for inheritance by nonmarital children in the context of the wider movement for legal equality for such children in society. It concludes that the UPC is to be lauded for its efforts to provide equal treatment to all nonmarital children. The UPC's commitment to such equality serves an expressive function for state legislatures and courts to follow its lead. The UPC has fulfilled its promise that all children regardless of marital status shall be equal for purposes of inheritance from or through parents, with one exception: …

Children Of Assisted Reproduction, Kristine S. Knaplund

University of Michigan Journal of Law Reform

More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is …

Un-Convicting The Innocent: The Case For Shaken Baby Syndrome Review Panels, Rachel Burg

University of Michigan Journal of Law Reform

This Note proposes that states should develop error-correction bodies to identify past errors that have resulted in wrongful convictions of people accused of shaking a child. These institutions, which I call SBS Review Panels, would be similar to the error-correction bodies and commissions that have recently been established throughout the world to deal with various sorts of wrongful convictions. An SBS-specific commission should be developed because of the high level of scientific expertise that is required to fully understand this diagnosis and the problems associated with using the triad of medical findings as evidence of the defendant's conduct. Part I …

The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon

University of Michigan Journal of Law Reform

Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice as …

Families For Tax Purposes: What About The Steps?, Wendy C. Gerzog

University of Michigan Journal of Law Reform

At least 4.4 million families in the United States are blended ones that include stepchildren and stepparents. For tax purposes, these "steps" receive preferential treatment as a result of their status because, on the one hand, they are treated as family members for many income tax benefit sections, but on the other hand, are excluded from the definition of family member for business entity attribution purposes and for gift and estate tax anti-abuse provisions. In the interests of fairness and uniformity, steps should be treated as family members for all tax purposes where they act like their biological or adoptive …

Looking Ahead: The Future Of Child Welfare Law, Donald N. Duquette

University of Michigan Journal of Law Reform

Introduction to a 2007 Symposium held to mark the Thirtieth Anniversary of the Child Advocacy Clinic.

Juvenile Justice: The Nathaniel Abraham Murder Case, Eugene Arthur Moore

University of Michigan Journal of Law Reform

Once in a while, a case will come along that has such an enormous impact on the law that it is certain to draw attention. One such case was the Nathaniel Abraham murder case----a case involving the sentencing of a young eleven-year-old child in a system designed for older juvenile offenders, which demonstrated some of the novel and important issues facing the juvenile courts today. With the onset of such issues, the Juvenile Justice System has developed into a complex field of vital importance. Investing in the Juvenile Justice System allows us to invest in our future. Although frequently viewed …

"I'Ll Try Anything Once": Using The Conceptual Framework Of Children's Human Rights Norms In The United States, Bernardine Dohrn

University of Michigan Journal of Law Reform

International human rights law provides norms, concepts, and standards of immediate and practical value to attorneys for court-involved children in the United States. The conceptual framework of the comprehensive rights of the child is broadly congruent with, or closely related to, the strongest aspects of US. constitutional law and practice. The expansive language of children's human rights offers an historic opportunity: new tools and a more comprehensive context in which to change how we think about young people in conflict with the law, children in state custody, and children in related legal settings. The challenge is to use these fresh …

Child Well-Being: A Beneficial Advocacy Framework For Improving The Child Welfare System?, Sarah H. Ramsey

University of Michigan Journal of Law Reform

This Article explores the advantages and disadvantages of child well-being as a child welfare system advocacy framework. It examines the use of the concept of child well-being as a social indicator and the importance of poverty rates to the child welfare system. It also examines the use of child well-being as an outcome measure for the child welfare system, in particular in Child and Family Service Reviews ("CFSRs") and court evaluations. The possible impact of the child wellbeing concept is considered in the context of several programs, including income supports and problem-solving courts. The Article concludes that, overall, well-being provides …

Kidsvoice: A Multidisciplinary Approach To Child Advocacy, Scott Hollander, Jonathan Budd

University of Michigan Journal of Law Reform

There is growing recognition that effective child advocacy requires a broad range of knowledge that often goes well beyond the legal needs of the child. This Essay details the multidisciplinary approach to child advocacy that KidsVoice, a Pittsburgh legal services organization representing almost 5000 dependent children each year, has implemented to better develop uniquely tailored recommendations regarding which placement and services might create better possibilities of success for each child and family.

Why Children Still Need A Lawyer, Marcia Robinson Lowry, Sara Bartosz

University of Michigan Journal of Law Reform

Every day approximately 500,000 children across the United States wake up in foster care, most in foster family homes, though many others in group homes and institutions. These children entered the state foster care system as innocent victims of abuse or neglect occurring in their birth homes. As wards of the state, they depend completely on the government to provide for their essential safety and wellbeing and to reconnect them with a permanent family, hopefully their own.

Though state child welfare agencies possess fundamental legal obligations under the United States Constitution and federal and state statutes to provide adequate care …

Advancing The Future Of Family Violence Law Pedagogy: The Founding Of A Law School Clinic, Melissa Breger, Theresa Hughes

University of Michigan Journal of Law Reform

This Article advocates for law schools to integrate family violence law further into their curricula and proffers reasons why family violence training is critical in preparing students to practice law. The authors posit that although live-client specialty clinics are the most in-depth way to teach family violence law, the topic should also be offered through doctrinal courses, externships, or general subject matter clinics. The Article then describes the authors' own experiences in cofounding a child advocacy clinic in New York City, outlining the steps taken to transform a vision into the actual formation of a clinic. Finally, the authors conclude …

Reflections On The Future Of Child Advocacy, Bobbe J. Bridge

University of Michigan Journal of Law Reform

This Essay emphasizes the foster child's rights to well-being and permanency, as well as safety. Noting an ongoing parent-centered approach, this Essay advocates a new paradigm, moving away from a focus on adults and toward a focus on the child. This Essay concludes by reviewing recent advances that promote a child-centered approach.

Troubled Children And Children In Trouble: Redefining The Role Of The Juvenile Court In The Lives Of Children, Ann Reyes Robbins

University of Michigan Journal of Law Reform

This Essay considers the emerging research in the area of dual-jurisdiction children, often referred to as "crossover kids "-those currently or previously involved in maltreatment proceedings who have also committed delinquent acts. Part I describes the development of the juvenile courts in the early twentieth century. Part II of this Essay questions the need to "track" children along one legal path or another and points to the pitfalls of providing services to some children through a criminal justice paradigm instead of treating all children through a social work paradigm. Finally, Part III advocates a redesign of the juvenile court- a …

The Eighteenth Birthday Of The Convention Of Rights Of The Child: Achievements And Challenges, Jaap E. Doek

University of Michigan Journal of Law Reform

Although the U.N. Convention on the Rights of the Child has produced positive results in many countries, the United States remains one of the few nations that has not signed on to this treaty. This Essay will begin by describing the content of the treaty. This Essay will discuss the achievements, challenges, and solutions resulting from the treaty in the areas of child poverty, violence against children, and child labour. Given the positive results produced in other countries, this Essay will conclude with an invitation to the United States to join the Convention on the Rights of the Child.

The Multiethnic Placement Act: Threat To Foster Child Safety And Well-Being?, David J. Herring

University of Michigan Journal of Law Reform

Despite the efforts of public officials to reduce the time children spend in foster care, many children live in foster homes for a substantial portion of their childhoods. In fact, a child placed in a foster home may remain in that home for an extended period, with a significant possibility of remaining there permanently. In light of this situation, the decision to place a child in a particular foster home is extremely important.

The federal Multiethnic Placement Act ("MEPA ") significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child's …

Measuring The Next 30 Years, Beth Locker, Andrew Barclay

University of Michigan Journal of Law Reform

The last thirty years have seen many changes in the field of child protection, as child welfare law and policy have been undergoing nearly constant change. Those changes, however, have rarely been supported by data or scientific research; rather, they seem to have been largely driven by individual perception of events and gut instincts resulting in what has become essentially a folklore-based system. By focusing on data and scientific research, we hope for better outcomes, but short of that, we at least hope to know whether, and why, outcomes change. The move towards data collection and analysis has begun, but …

Neither Dyad Nor Triad: Children's Relationship Interests Within Kinship Caregiving Families, Sacha M. Coupet

University of Michigan Journal of Law Reform

Utilizing a research design lens as a platform for exploring children's relationship rights, this Essay examines first, the limitations of a rights-based framework and second, insufficient participation by children in decision-making regarding their access to and interest in relationships with significant others. This Essay posits that neither the dyadic rights-based framework in domestic relations nor the, ostensibly, triadic one in child welfare serve the interests of children, since children's rights are invariably subordinated to those of adults and the state. In place of a rights-based approach, this Essay endorses an interests-based model more attuned to the holistic aim of child …