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Full-Text Articles in Law
On The Duties And Rights Of Parents, Carl E. Schneider
On The Duties And Rights Of Parents, Carl E. Schneider
Articles
The law of the family is the law of the absurd. Law is a system of rules administered institutionally, and thus it must treat people categorically. When law regulates economic life, it finds people at arguably their most schematic, motivated-perhaps-by a relatively unitary conception of their interest pursued in relatively rational ways. But in family life, people are at their least schematic and at their most frustratingly human, various, idiosyncratic, irrational, and perverse, and the law's efforts to affect them are thus often quixotic. In Parents as Fiduciaries, 1 Professor Scott and Dean Scott strikingly and boldly deploy the …
A Child's Right To Protection From Transfer Trauma In A Contested Adoption Case, Suellyn Scarnecchia
A Child's Right To Protection From Transfer Trauma In A Contested Adoption Case, Suellyn Scarnecchia
Articles
On August 2, 1993, I arrived at the home of Jan, Robby, and Jessica DeBoer' a few hours before the transfer. At 2:00 P.M. I would carry Jessica out of her home and deliver her to the parents who had won the case,2 her biological mother and father. This task probably would have been easier had I not spent eight days in the trial court listening to the experts explain that this transfer from one set of parents to another would harm Jessica.3 It would have been easier had I not recently obtained affidavits from other experts to persuade the …
Imagining Children's Rights, Suellyn Scarnecchia
Imagining Children's Rights, Suellyn Scarnecchia
Articles
Today, I will tell you some stories about real, live children, whose futures have been determined by our legal system. To speak of children's rights hypothetically, raises images of children suing to go live with their rich uncle or suing to demand a Nintendo system from their parents. I hope that by bringing you stories of the legal system's treatment of real children, you will have a better understanding of what I mean by children's rights and why they must be recognized. Although children's rights have been recognized in limited ways in the areas of free speech, criminal law and …
The Channelling Function In Family Law, Carl E. Schneider
The Channelling Function In Family Law, Carl E. Schneider
Articles
On an occasion such as this, we are called to step back from our daily work to seek what Justice Holmes called a "liberal view" of our subject. Today, I propose to do so by exploring a function of family law that I believe is basic, that underlies much of family law, that resonates with the deepest purposes of culture but that is rarely addressed expressly-namely, what I call the "channelling function." As I will soon explain at length, in the channelling function the law recruits, builds, shapes, sustains; and promotes social institutions. My exploration of this topic will have …
Surrogate Motherhood From The Perspective Of Family Law, Carl E. Schneider
Surrogate Motherhood From The Perspective Of Family Law, Carl E. Schneider
Articles
One of the things that I find most puzzling about the question of surrogate motherhood is how easily many people answer it. One of the things that I have most admired about today's comments is their tone of constraint and their sense of complexity. I myself am sympathetic to the argument that the unhappiness of infertile couples is profound and that surrogacy contracts offer them the hope of an equally profound happiness. And I am prepared to believe that many surrogate mothers perform their part of the bargain without grief and even with gratification. Yet these benefits of surrogacy are …
Rights Discourse And Neonatal Euthanasia, Carl E. Schneider
Rights Discourse And Neonatal Euthanasia, Carl E. Schneider
Articles
Hard cases, they say, make bad law. Hard cases, we know, can also make revealing law. Hard cases identify the problems we have not found a way of solving. They reveal ways the law's goals conflict. They force us to articulate our assumptions and to examine our modes of discourse and reasoning. If there was ever a hard case for the law, it is the question of whether, how, and by whom it should be decided to allow newborn children who are severely retarded mentally or severely damaged physically to die. For many years, the law has not had to …
Rethinking The Substantive Rules For Custody Disputes In Divorce, David L. Chambers
Rethinking The Substantive Rules For Custody Disputes In Divorce, David L. Chambers
Articles
A few states, mostly in the West and South, still retain a preference in custody disputes for placing young children with their mothers. In most other states, legislatures or courts have replaced the maternal presumption with a rule directing courts to be guided solely by the child's "welfare" or "best interests." A few legislatures have created a new preference for joint custody, directing courts to consider favorably requests by a parent for such arrangements, even over the objection of the other parent. This Article argues that the trend away from the maternal presumption is sensible, but that the current best-interests …