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Full-Text Articles in Law
Turner In The Trenches: A Study Of How Turner V. Rogers Affected Child Support Contempt Proceedings, Elizabeth Patterson
Turner In The Trenches: A Study Of How Turner V. Rogers Affected Child Support Contempt Proceedings, Elizabeth Patterson
Faculty Publications
In its 2011 ruling in Turner v. Rogers, the Supreme Court held that a nonpaying child support obligor may not be incarcerated in a civil contempt proceeding if he did not have the ability to pay the ordered support or the purge necessary to regain his freedom. The Turner case arose in South Carolina, a state in which civil contempt proceedings are a routine part of the child support enforcement process. The author observed child support contempt proceedings in South Carolina both before and after the Turner decision to assess the extent to which indigent obligors were being held in …
Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle
Journal Articles
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …
Adoption Law In The United States: A Pathfinder, Glen-Peter Ahlers Sr.
Adoption Law In The United States: A Pathfinder, Glen-Peter Ahlers Sr.
Faculty Scholarship
No abstract provided.
Marriage Rights And The Good Life: A Sociological Theory Of Marriage And Constitutional Law, Ari Ezra Waldman
Marriage Rights And The Good Life: A Sociological Theory Of Marriage And Constitutional Law, Ari Ezra Waldman
Articles & Chapters
This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a …
Introduction: Jessica Lenahan (Gonzales) V. United States: Implementation, Litigation, And Mobilization Strategies, Caroline Bettinger-López
Introduction: Jessica Lenahan (Gonzales) V. United States: Implementation, Litigation, And Mobilization Strategies, Caroline Bettinger-López
Articles
No abstract provided.
Equal Access And The Right To Marry, Nelson Tebbe, Deborah A. Widiss
Equal Access And The Right To Marry, Nelson Tebbe, Deborah A. Widiss
Cornell Law Faculty Publications
How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …
Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan
Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan
Faculty Publications
No abstract provided.
Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe
Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe
Articles by Maurer Faculty
How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Articles
Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …
Who Is A Parent?, Michelle M. Botek, Dorothy R. Fait, Jillian L. Dilaura
Who Is A Parent?, Michelle M. Botek, Dorothy R. Fait, Jillian L. Dilaura
Articles by Maurer Faculty
No abstract provided.
What's Love Got To Do With It?: The Corporations Model Of Marriage In The Same-Sex Marriage Debate, Jeremiah A. Ho
What's Love Got To Do With It?: The Corporations Model Of Marriage In The Same-Sex Marriage Debate, Jeremiah A. Ho
Faculty Publications
The time may come, far in the future, when contracts and arrangements between persons of the same sex who abide together will be recognized and enforced under state law. When that time comes, property rights and perhaps even mutual obligations of support may well be held to flow from such relationships. But in my opinion, even such a substantial change in the prevailing mores would not reach the point where such relationships would be characterized as "marriages". At most, they would become personal relationships having some, but not all, of the legal attributes of marriage. And even when and if …
Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander
Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander
Articles
Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …
Removing Violent Parents From The Home: A Test Case For The Public Health Approach, Robin Fretwell Wilson
Removing Violent Parents From The Home: A Test Case For The Public Health Approach, Robin Fretwell Wilson
Faculty Scholarship
Child services caseworkers adhere to the belief that, in the absence of prosecution, the only remedy for protecting a child harmed by a parent is to remove the child from her home. The effect of this often is to leave the alleged perpetrator in the household with the victim's siblings. Using sexual violence as an example, this Comment contends the evidence of potential risk for the remaining children is so overwhelming that, as a matter of policy, an adult who violates one child should be removed from the household. Parents who commit incest rarely stop with one child. Ignoring such …
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 …
Procedural Due Process Rights Of Incarcerated Parents In Termination Of Parental Rights Proceedings: A Fifty State Analysis, Philip Genty
Procedural Due Process Rights Of Incarcerated Parents In Termination Of Parental Rights Proceedings: A Fifty State Analysis, Philip Genty
Faculty Scholarship
Disruption of families through incarceration of parents has become an increasingly serious problem over the past decade. The prison population has grown dramatically, and for women prisoners the increases in the population are particularly striking. From 1980 through 1990, the number of women incarcerated in state and federal prisons increased from 13,420 to 43,845, an increase of 227 percent. In a single year, from 1988 to 1989, the number of incarcerated women increased by 24.4 percent. In 1990 there were an additional 37,844 women in local jails. For men the prison population increased by 130 percent from 316,401 to 727,398 …
The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West
The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West
Georgetown Law Faculty Publications and Other Works
What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H. v. Gerald D. Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action. Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions. I will sometimes call this the "traditionalist" interpretation of liberty. Justice Brennan, …
How Are You Going To Keep Them Down On The (Collective) Farm After They’Ve Seen Chicago?: A Minor’S Right To Political Asylum Against His Parents’ Wishes, Michael G. Hillinger
How Are You Going To Keep Them Down On The (Collective) Farm After They’Ve Seen Chicago?: A Minor’S Right To Political Asylum Against His Parents’ Wishes, Michael G. Hillinger
Faculty Publications
“Children’s rights” is a nebulous phrase subsuming two very different issues: the extent to which children can assert the same rights against the state as adults, and the extent to which the state can limit a parent’s power over his child. In cases involving the issue of children’s rights , the Supreme Court has defined those rights in a relatively restrictive fashion. On the one hand, the Supreme Court has recognized that children have constitutional rights independent of those enjoyed by their parents. On the other hand, it has frequently held those rights to be either less than those afforded …
State Marital Property Laws And Federally Created Benefits: A Conflict Of Laws Analysis, Louise Everett Graham
State Marital Property Laws And Federally Created Benefits: A Conflict Of Laws Analysis, Louise Everett Graham
Law Faculty Scholarly Articles
The laws of individual states have historically controlled familial relationships and the rights and responsibilities derived from them. The injection of federal rights into the domestic relations area has generally been confined to resolution of claims that the application of particular state laws violated either due process or equal protection rights of particular persons. In a limited number of cases concerning marital property, however, one party has relied upon a federal law creating a benefit or right that conflicts with the state-created rule apportioning marital property or establishing a support obligation. Such a conflict of laws problem arose in McCarty …
Protecting Individual Liberties In The Context Of Screening For Child Abuse, Donald N. Duquette
Protecting Individual Liberties In The Context Of Screening For Child Abuse, Donald N. Duquette
Book Chapters
A central role of the law in our society is to act as buffer between individual citizens and society at large. When personal freedom or liberty is at stake, the law acts as arbiter between individuals and government and allows liberty to be abrogated only after "due process of law." Due process is an attempt to insure fair treatment of all concerned-a quest for fairness. In what follows due process will be discussed further together with some examples of the due process model as applied to the child protection system. Certain risks to personal freedom are inherent in child protection. …