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Articles 1 - 30 of 81
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 …
The Most Dangerous Branch Of Science? Reining In Rogue Research And Reckless Experimentation In Social Services, James G. Dwyer
The Most Dangerous Branch Of Science? Reining In Rogue Research And Reckless Experimentation In Social Services, James G. Dwyer
Faculty Publications
Most people are unaware how much public policy is either lacking in any empirical-research support or driven by bad research. Political actors motivated by ideology or donor/constituent demands propose new government practices—in areas ranging from policing to funding of treatments for gender dysphoria in youth to welfare-qualification rules—that will greatly impact people’s lives, and if anyone asks what basis they have for thinking the impact will be good, they can readily find some study to support their case. Especially when powerless populations are put at risk, neither the legislative process nor peer review in the publication process provides a real …
A Q&A With Homeschooling Reform Advocates Elizabeth Bartholet And James Dwyer, Elizabeth Bartholet, James Dwyer
A Q&A With Homeschooling Reform Advocates Elizabeth Bartholet And James Dwyer, Elizabeth Bartholet, James Dwyer
Popular Media
Elizabeth Bartholet, Morris Wasserstein Public Interest Professor and Faculty Director of the Child Advocacy Program (CAP), and James Dwyer, the Arthur B. Hanson Professor of Law at William & Mary Law School, were interviewed by Harvard Law Today about their virtual conference titled, Homeschool Summit: Problems, Politics, and Prospects for Reform. The June event was attended by leaders in education and child welfare policy, legislators and legislative staff, academics and policy advocates, medical professionals, homeschooling alumni, and others, to discuss children’s rights in connection with homeschooling in the United States.
In Deciding Fulton V. Philadelphia, The Supreme Court Should Remember That Foster Care Is For The Children, James Dwyer
In Deciding Fulton V. Philadelphia, The Supreme Court Should Remember That Foster Care Is For The Children, James Dwyer
Popular Media
No abstract provided.
Verified Amended Complaint By Next Friend James Dwyer Against Defendants Norfolk Department Of Human Services (Ndhs), James G. Dwyer
Verified Amended Complaint By Next Friend James Dwyer Against Defendants Norfolk Department Of Human Services (Ndhs), James G. Dwyer
Faculty Publications
No abstract provided.
Homeschooling: A Response To Ahlberg, Howell, And Justice, James G. Dwyer, Shawn F. Peters
Homeschooling: A Response To Ahlberg, Howell, And Justice, James G. Dwyer, Shawn F. Peters
Faculty Publications
No abstract provided.
American Democratic Deficit In Assisted Reproductive Technology Innovation, Myrisha S. Lewis
American Democratic Deficit In Assisted Reproductive Technology Innovation, Myrisha S. Lewis
Faculty Publications
In many areas of innovation, the United States is a leader, but this characterization does not apply to the United States' position in assisted reproductive technology innovation and clinical use. This article uses a political science concept, the idea of the "democratic deficit" to examine the lack of American public discourse on innovations in ART. In doing so, the article focuses on America's missing public consultation in health care innovation. This missing discourse is significant, as political and ethical considerations may impact regulatory decisions. Thus, to the extent that these considerations are influencing the decisions of federal agency employees, namely …
Halted Innovation: The Expansion Of Federal Jurisdiction Over Medicine And The Human Body, Myrisha S. Lewis
Halted Innovation: The Expansion Of Federal Jurisdiction Over Medicine And The Human Body, Myrisha S. Lewis
Faculty Publications
Modern medical innovations are blurring the line between medical practice and medical devices and drugs. Historically, many techniques have been developed in medicine, without any interference from the federal government, as medical practice is (and has historically been) an area of state jurisdiction. Over the past two decades, however, the U.S. Food and Drug Administration (FDA) has been exerting jurisdiction over the human body and the practice of medicine by targeting new medical techniques for oversight and subjecting the continued use of those treatments to onerous and legally questionable regulatory requirements that hinder the use of those treatments in practice. …
Children’S Welfare And The State’S Fiduciary Responsibility, James G. Dwyer
Children’S Welfare And The State’S Fiduciary Responsibility, James G. Dwyer
Popular Media
No abstract provided.
Which Side Are You On?, James G. Dwyer
How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis
How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis
Faculty Publications
Most scholars believe assisted reproductive technology is subject only to minimal regulation, especially by the federal government. This belief, I contend, is wrong. In this Article, I examine agency documents, statements by officials, and letters that the U.S. Food and Drug Administration (FDA) has sent to physicians and researchers over the past fifteen years to reveal an overlooked regulatory program. The FDA has been targeting new forms of assisted reproductive technology that involve small genetic modifications (advanced assisted reproductive technologies or AARTs) through regulatory actions that receive little public, media, or scholarly attention. I term this method of regulation “subterranean …
Biology, Genetics, Nurture, And The Law: The Expansion Of The Legal Definition Of Family To Include Three Or More Legal Parents, Myrisha S. Lewis
Biology, Genetics, Nurture, And The Law: The Expansion Of The Legal Definition Of Family To Include Three Or More Legal Parents, Myrisha S. Lewis
Faculty Publications
No abstract provided.
A Child-Centered View Of Foster Parenting By Same-Sex Couples, James G. Dwyer
A Child-Centered View Of Foster Parenting By Same-Sex Couples, James G. Dwyer
Popular Media
No abstract provided.
Victory By Litigation Would Be Hollow: Front Burner, James G. Dwyer
Victory By Litigation Would Be Hollow: Front Burner, James G. Dwyer
Popular Media
No abstract provided.
Book Review Of The Child Cases: How America's Religious Exemption Laws Harm Children, James G. Dwyer
Book Review Of The Child Cases: How America's Religious Exemption Laws Harm Children, James G. Dwyer
Faculty Publications
No abstract provided.
Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer
Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer
Faculty Publications
No abstract provided.
The Ever-Shrinking Case For A Constitutional Right To Same-Sex Marriage, James G. Dwyer
The Ever-Shrinking Case For A Constitutional Right To Same-Sex Marriage, James G. Dwyer
Popular Media
No abstract provided.
Jailing Black Babies, James G. Dwyer
Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer
Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer
Faculty Publications
No abstract provided.
Adopted Couple V. Baby Girl: Erasing The Last Vestigates Of Human Property, James G. Dwyer
Adopted Couple V. Baby Girl: Erasing The Last Vestigates Of Human Property, James G. Dwyer
Faculty Publications
No abstract provided.
Whatever Your Thoughts On Marriage, Gay Divorce Is A Concern, Nathan B. Oman
Whatever Your Thoughts On Marriage, Gay Divorce Is A Concern, Nathan B. Oman
Popular Media
No abstract provided.
Why We Should Raise The Marriage Age, Vivian E. Hamilton
Why We Should Raise The Marriage Age, Vivian E. Hamilton
Popular Media
No abstract provided.
Equality Between Adults And Children: Its Meaning, Implications, And Opposition, James G. Dwyer
Equality Between Adults And Children: Its Meaning, Implications, And Opposition, James G. Dwyer
Faculty Publications
Family law scholars have devoted much attention to equality among groups of adults and some attention to equality between groups of children. There has been little exploration, however, of the notion of equality between adults and children. In this Article, I first explain what it means at a basic, theoretical level to speak of such equality. I then identify some practical implications. Finally, I consider why there is great resistance to many practical implications of children's equality, even among those who would consider themselves advocates for child welfare.
Sex And Statutory Uniformity: Harmonizing The Legal Treatment Of Semen, Myrisha S. Lewis
Sex And Statutory Uniformity: Harmonizing The Legal Treatment Of Semen, Myrisha S. Lewis
Faculty Publications
No abstract provided.
Misused Concepts And Misguided Questions: Fundamental Confusions In Family Law Debates, James G. Dwyer
Misused Concepts And Misguided Questions: Fundamental Confusions In Family Law Debates, James G. Dwyer
Faculty Publications
No abstract provided.
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Popular Media
No abstract provided.
The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton
The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton
Faculty Publications
Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover – and one in ten U.S. women do – experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who …
Making Sex The Same: Ending The Unfair Treatment Of Males In Family Law, Myrisha S. Lewis
Making Sex The Same: Ending The Unfair Treatment Of Males In Family Law, Myrisha S. Lewis
Faculty Publications
No abstract provided.
Parents' Self-Determination And Children's Custody: A New Analytical Framework For State Structuring Of Children's Family Life, James G. Dwyer
Parents' Self-Determination And Children's Custody: A New Analytical Framework For State Structuring Of Children's Family Life, James G. Dwyer
Faculty Publications
No abstract provided.