Law Commons^™

The Right Family, Noa Ben-Asher, Margot J. Pollans

Faculty Publications

The family plays a starring role in American law. Families, the law tells us, are special. They merit many state and federal benefits, including tax deductions, testimonial privileges, untaxed inheritance, and parental presumptions. Over the course of the twentieth century, the Supreme Court expanded individual rights stemming from familial relationships. In this Article, we argue that the concept of family in American law matters just as much when it is ignored as when it is featured. We contrast policies in which the family is the key unit of analysis with others in which it is not. Looking at four seemingly …

Tips For Safety Planning For Children Of Undocumented Parents, Jennifer Baum

Faculty Publications

(Excerpt)

In 2013, more than 5 million children in the United States (over 7 percent of the total U.S. child population) were living with at least one undocumented parent, according to the Migration Policy Institute. The overwhelming majority of these children (80 percent) were U.S. citizens. The Washington Post reported that more than half a million of these children's parents have in fact been deported since 2009. That's a lot of U.S. children living day to day with the sudden loss, or risk of sudden loss, of a parent through deportation.

Collaboration And Intention: Making The Collaborative Family Law Process Safe(R), Margaret Drew

Faculty Publications

Since the beginning of the collaborative family law movement, commentators from various professions have discouraged collaborative lawyers from accepting cases involving intimate partner abuse. The collaborative process, with its face to face meetings and emphasis on transparency and good faith, carries with it many risks for the partner who has been abused and who is attempting to end the relationship with the abusive partner. There may be occasions, however, when the at-risk partner believes that the collaborative process will enhance her safety or at least provide her with less exposure to future harm than other resolution processes. This article will …

The Political Economy And Legal Regulation Of Transnational Commercial Surrogate, Cyra Akila Choudhury

Faculty Publications

This Article breaks new ground by closely reading the emerging ethnographic accounts of surrogacy to establish that current feminist frames are incomplete. It incorporates the political economy of surrogacy, the economic relationship of surrogacy to the Indian state, and the political economy of surrogates’ families, which have all been missing from the current dialogue. The Article concludes that the benefits of surrogate labor outweigh its disadvantages and develops a new framework — of surrogacy as labor — that will, for the first time, protect the surrogate as worker.Surrogacy, as a fairly open regulatory field, provides feminists with a unique opportunity …

Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande

Faculty Publications

This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …

Paradoxes Of Health And Equality: When A Boy Becomes A Girl, Noa Ben-Asher

Faculty Publications

(Excerpt)

In the fall of 2000, six-year-old male Zachary from a small town in Ohio, claimed that s/he was a girl and requested, from now on, to be called Aurora. When the child's parents honored this unusual wish and made efforts to make official the child's feminine identity, the case turned into a custody battle between the parents and the state of Ohio. Although the child was occasionally treated as a girl at home from the age of two, the attempt to register the child in public school as a girl motivated the state dissolution of this family. At the …

Crime Or Punishment: The Parental Corporal Punishment Defense - Reasonable And Necessary, Or Excused Abuse, Kandice Johnson

Faculty Publications

The parental right to use physical force to discipline and restrain children is a privilege firmly rooted in the American system of jurisprudence. This privilege is often asserted as a defense when parents are charged with a crime of aggression against their child. While the privilege to use disciplinary force is universally recognized as a defense in criminal actions, it is equally acknowledged that child abuse is a pervasive reality of American life. This article postulates that current laws, addressing assertion of the parental privilege defense in criminal actions, fail either to provide adequate guidance to parents or to sufficiently …

Children's Rights In Intercountry Adoption: Towards A New Goal, S. I. Strong

Faculty Publications

Each year, hundreds of thousands of children languish in foster or institutional care worldwide, while at the same time, thousands of adults, married and unmarried alike, are denied children because of “shortages.” How did this tragedy occur, and why does it continue to be repeated daily in countries around the world? The unfortunate truth is that many of the legal and societal norms now in place effectively prohibit needy children from finding suitable homes. While potential parents in Western countries cry out for babies of their own, millions of children live in physical and psychological poverty in underfunded orphanages around …

Rethinking Wrongful Life: Bridging The Boundary Between Tort And Family Law, Philip G. Peters Jr.

Faculty Publications

Traditional tort law embraces an unduly narrow notion of corrective justice that fails to resolve wrongful life disputes satisfactorily. The unique circumstances associated with the creation of a new life bring into play another, broader paradigm of responsibility: one that resembles family law more than tort. From this perspective, children whose birth can be attributed to tortious conduct have a strong moral claim for supplemental child support whenever a tortfeasor's interference with the pro- creative rights of the parents foreseeably results in the birth of a child and that child's parents cannot provide adequate support. In such an instance, the …

The State's Interest In The Preservation Of Life: From Quinlan To Cruzan, Philip G. Peters Jr.

Faculty Publications

This article considers the kinds of limits on withholding that each of these policies might plausibly support, compares these limits to the judicial approaches taken in the refusal of treatment cases, and explores how apparent conflicts between these state goals and the interests of the patients might be resolved. Because this article focuses exclusively on the state's interests, however, it necessarily isolates and considers only one portion of a complex problem involving the interests of patients, families, providers, and others. No comprehensive examination of the nature and weight of the patient's interests or those of other involved parties is attempted. …