People who lack guidance when they are young have an increased risk of committing crimes. The nurturing that many people receive during their formative years can play a key role in the development of appropriate values and behavior. Yet there is a reluctance to acknowledge the diminished culpability of offenders who have lacked appropriate guidance during their childhood because it is feared that doing so might be perceived as justifying criminal behavior and hence leading to more crime. The Federal Sentencing Guidelines expressly state that lack of guidance as a youth should not be a mitigating sentencing consideration. Despite this, approximately half of all federal judges believe that it should reduce the harshness of the penalty that is imposed on offenders. In this Article, we examine whether lack of guidance as a youth should serve to reduce the severity of criminal sanctions. In doing so, we also discuss the position in Australia where an offender’s neglected upbringing can mitigate his or her penalty. We conclude that a neglected youth should not of itself mitigate penalty because this would make sentencing law too obscure and uncertain. There is not even an approximate line that can be drawn to demarcate the boundaries between appropriate and inadequate guidance as a youth. However, experiences that are commonly associated with being neglected during childhood and often profoundly set back the mental and/or emotional state of children, namely being subjected to physical or sexual abuse, are more concrete in nature and should be a mitigating factor in sentencing. Empirical evidence demonstrates that people who are subjected to such trauma in their childhood years have an increased risk of subsequently engaging in harmful behavior, such as criminal activity. Further, relatively clear criteria can be established to demarcate the scope and application of these experiences during childhood for sentencing purposes. Reforming the law to make childhood sexual and physical abuse a mitigating consideration would improve the doctrinal coherency of the law and may have the incidental benefit of reducing sentences for female offenders generally and for offenders from socio-economically deprived backgrounds, including African Americans. This reform could be implemented in a manner that does not compromise community safety, provided that it is complemented by targeted, effective rehabilitative measures.
In most states, marrying couples are severely limited in their surname choices at the time of marriage. While recent scholarship has focused on men’s limited surname choices, other important problems with the marital surname process exist. For example, the increasingly popular decision to blend surnames — taking parts of both current surnames to create an entirely new surname — is generally not allowed. Four states explicitly allow for surname blending on the marriage license, and three more allow for any surname to be adopted. This article argues the remaining states should follow suit by allowing surname blending and other surname options. In addition to providing too few surname options, in most states the current system creates ambiguities and problems because marriage licenses fail to reflect the married surname of either spouse. This article argues that states should update marriage licenses to include the surname a marrying couple chooses to adopt as the marital name.
This essay argues that sports law can be more than just a fascinating and topical subject with great appeal to those who work or hope to work in the field. It can also be a valuable intellectual and pedagogical enterprise—even for those who do not or will not work in sports. In particular, sports law can be a useful and clarifying lens through which to study the law more broadly. This is because sports enterprises and issues tend to put unique and potentially illuminating pressures on the law. Ordinary or unexamined assumptions often break down or prove inadequate when confronted with the relatively unique world of sports. This in turn forces scholars, students, and courts to think more deeply about the law—and in the process facilitates that deeper thought. This essay first describes some of the things that make sports relatively unique and therefore challenging to the law. The bulk of this essay then addresses three specific areas of law: antitrust; trademark; and sex discrimination. These three contexts are used to highlight and illustrate the ways in which sports law can call upon us to rethink what we think we know—and thus can help deepen and clarify our thinking. This essay concludes by suggesting that teachers and scholars of sports law should try to tap the intellectual and pedagogical potential the subject offers.
Genetic technologies are being implemented in areas that extend beyond the field of medicine to address social and legal problems. An emerging example is the implementation of genetic testing in the family petitioning process in immigration policy. This use of genetic testing offers the potential benefits of reducing immigration fraud and making the process more efficient and accessible for immigrants, especially those without documentation. However, little is known about the positive or negative impacts of such testing on immigrant families and their communities. This study collected empirical data through family interviews to understand the experiences and attitudes of individuals who have taken a DNA test to prove a family relationship for immigration purposes. Based on study results, we present a set of recommendations to improve the processes with which DNA testing is applied to immigration cases. We argue that DNA testing might serve as a useful tool for families who lack documentary evidence of a family relationship. However, testing might also reveal sensitive information, such as misattributed parentage, that can damage relationships and cause serious harm to beneficiaries, especially children. Petitioners should be provided with adequate information to form an understanding of the DNA test and its implementation as well as the positive and negative consequences from using it, in order to carefully assess whether DNA testing will help their case. We recommend that additional protections be put in place to safeguard children from the potential impacts of misattributed parentage or disclosure of hidden social adoptions. This research provides empirical evidence to inform policy related to the use of genetic testing in immigration.
INTRODUCTION I. INCONSISTENT APPROACHES TO HARMFUL SPEECH IN SCHOOLS A. The Institutional View B. The Expanded Institutional View C. The Private View II. PROTECTIONISM IN AND OUT OF SCHOOL A. Protecting Minors from Harmful Speech B. Protecting Students from Other Students' Expression III. A PROTECTIONIST APPROACH TO HARMFUL SPEECH IN SCHOOLS A. Justifications for Protectionism Under Tinker B. Harmful Speech and Tinker's Rights of Others Prong IV. THE LIMITS OF PROTECTIONISM A. When Do Harmful Viewpoints Invade the of Others? 1. Speech in a Hostile Environment 2. Reasonable Forecast of Harm 3. Verbal Bullying B. When Do Harmful Viewpoints Not Invade the of Others? 1. Political Commentary in a Non-Hostile Environment 2. Voluntary Civil Discussions Among Mature Students CONCLUSION INTRODUCTION Over four decades ago, Tinker v. Des Moines Independent Community School District announced that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. (1) Ever since, courts have struggled to define the limits of those rights, especially when the speech of one student harms another. (2) Subsequent cases carved out doctrinal alternatives and exceptions to Tinker and thereby gave schools more discretion to restrict harmful speech. (3) But these decisions provided little guidance on how much, if at all, Tinker allows schools to restrict student speech in order to protect the physical and psychological well-being of other students. When harmful student speech is not vulgar and offensive, does not bear the imprimatur of the school, and does not advocate illegal drug use, how much can schools limit it? In recent years, this question has been particularly central to schools' attempts to restrict controversial student speech on race and sexuality. on the one hand, it is clear enough that schools can protect students from verbal bullying or targeted hate speech. (4) On the other hand, it is far less clear--and far more controversial--whether Tinker permits schools to protect students from harmful political, social, or religious speech. Accordingly, lower courts have reached wildly conflicting conclusions about the permissibility of restricting such student viewpoints. (5) Schools can ban religiously intolerant armbands, (6) for example, but not necessarily Confederate-flag clothing. (7) Pro-homosexual slogans (8) or pro-heterosexual student speech (9) are protected, but anti-gay speech is not, (10) unless it is simply too mild to be harmful. (11) Homosexuality is a sin (12) is permissible student speech, but Homosexuality is shameful goes too far. (13) Lower court disagreement has resulted from looking exclusively to Tinker and its progeny for guidance on restricting harmful viewpoints in schools. Tinker originally devised a two-prong test under which schools can restrict student speech only if it materially and substantially interfer[es] with the requirements of appropriate discipline in the operation of the or collid[es] with the rights of others. (14) But applying this framework to harmful student speech runs into immediate problems. Is such speech a substantial disruption or an invasion of others' rights? (15) How much speech is needed to trigger either Tinker prong? (16) Does the speech have to be individually targeted, or are broad political statements also proscribable? (17) If a court protects student speakers too much, it risks emotional harm to the student audience exposed to the speech; if the school protects the student audience too much, it risks impermissible viewpoint discrimination against the student speakers. Caught between this Scylla and Charybdis, courts have placed different limits on a school's ability to shield students from emotionally harmful speech by other students. Adopting the same methodology, scholars have only replicated these basic disagreements. …
INTRODUCTION It is no secret that the prisons have become the new institutions for the severely mentally ill in the aftermath of deinstitutionalization. The confinement of the mentally ill to prison (which, as explained below, can occur in Massachusetts even if the individual has not been convicted of a crime) is nothing short of a moral disgrace. Moreover, even if a person with mental illness is able to find treatment, or is involuntarily committed, the Supreme court only recently recognized that there was a corresponding obligation to provide care. In fact, it was not until 1982 that the Supreme Court, in Youngberg v. Romeo, (1) first acknowledged a mentally ill person's substantive civil rights under the Fourteenth Amendment to the Constitution. (2) Specifically, Youngberg held that civilly committed mental patients had the right to safe conditions of confinement, freedom from unreasonable bodily restraints, and such adequate training as reasonably may be required by these interests. (3) While the issues relating to the substantive civil rights due individuals suffering from mental illness are many, this Article focuses first on cases discussing the deference some courts have given to medical and professionals in exercising their so-called judgment when it comes to the of mentally ill patients and in particular their use (and overuse) of seclusion and restraint as a manner of treatment and, all too often, punishment. Thereafter, this Article will provide a brief analysis of the evolution of the emerging professional consensus that the use of prolonged seclusion and restraint on individuals with serious mental illness can never be justified as treatment and results in significant and sometimes permanent harm to a patient's mental health. Next, this Article will discuss how this emerging consensus of thought with respect to the use of prolonged seclusion and restraint should provide the catalyst through which the basic precepts of Youngberg can be reinvigorated for utilization to protect the most vulnerable of our society. Finally, this Article will discuss a pending action in the Superior Court of Massachusetts, where a judge has issued an injunction to prevent prolonged seclusion in line with the rationale supporting the Youngberg decision. ultimately, the authors of this Article believe that the medical and professionals enlisted to provide their services to the mentally ill should not be given any deference in their so-called clinical decisions when it comes to unjustified prolonged seclusion and restraint. Simply put, deference given to decisions should not amount to complete abdication of jurisprudential responsibility for ensuring equal protection of the laws to those who need the protections of our Constitution the most. In Youngberg, the Supreme Court acknowledged that those suffering from mental illness, and who have been involuntarily institutionalized, not only are entitled to confinement in safe conditions, but also that they are entitled to freedom from undue bodily restraint and to a right to minimally adequate habilitation. (4) The Court further opined that if mentally stable criminals were entitled to such liberties under the Constitution, those (through no fault of their own) suffering from mental illness should be entitled to those same liberties and freedoms. (5) In fact, the Court further noted that [p]ersons who have been involuntarily committed are entitled to more considerate and conditions of confinement than criminals whose conditions of confinement are designed to punish. (6) Ironically, most of the recent case law centers on the use of solitary confinement in prisoners' rights cases, as opposed to the rights of those subject to excessive undue restraint as civilly committed patients in state mental hospitals. (7) The discussion and ultimate holdings rendered in Youngberg provide a relatively heightened level of substantive civil rights to involuntarily institutionalized individuals and are, no doubt, an important stride in equalizing the rights afforded to the mentally ill. …
The admission of hearsay qualifying as excited utterances, present sense impressions, and statements about mental and bodily conditions are exceptions to the general rule of inadmissibility for hearsay statements. Evidence scholars explain them as being presumably reliable statements as they are generally contemporaneous with an event at issue such that faults with memory and time to lie are remedied. These three exceptions have been particularly depended upon in cases of interpersonal violence in which victims are considered to honestly complain during the occurrence of the assault and in its immediate aftermath. Nonetheless, much recent research in interdisciplinary circles highlights that the impact of trauma has varied consequences upon subjects’ abilities to accurately and fully articulate what just transpired to them. Concurrent neurophysiological reactions to traumatic stress can mediate, alter, or entirely thwart one’s capacity to conceptualize internally, and to clearly verbalize externally, the violent attack. Thus, unlike the hearsay exceptions’ presumption of accuracy, a surfeit of scientific knowledge now shows that violence victims may — or may not — issue in the near term holistic and reliable reports. On the other hand, empirical studies reject the notion that it takes more than a blink of an eye to fabricate a story.Evidence law is often intransigent in its reliance upon folk psychological assumptions about human behavior. Yet with legal scholars and practitioners increasingly embracing the benefits that scientific knowledge can bring to the law, the time may be ripe to reconsider these three hearsay exceptions. In light of recent studies drawing from neurology, physiology, and psychology principles and research designs in trauma studies, the goal of evidence law in terms of preventing unreliable testimony can only benefit thereby.
INTRODUCTION I. Oddities II. The Mentally Ill in Incarceration III. The Mental Effects of Double Incarceration or Isolation IV. Legal Interventions V. Beyond Legal Interventions Introduction On August 13, 2014, in one in a series of articles about the state of conditions at Rikers Island, New York City's main jail complex, the New York Times revealed: The portrait that emerged from the report on Rikers Island by the United States attorney's office in Manhattan last week was of a place with almost medieval levels of violence, meted out with startling ferocity by guards and their superiors. The two-and-a-half-year investigation, which focused on the abuse of teenage inmates by correction staff, was exhaustive in cataloging the brutality. But a critical question that went unaddressed is how conditions were allowed to get to this point. Rikers has been a place of violent excess for decades. And the growing ranks of inmates with mental illnesses, reaching nearly 40 percent of the jail population today, have added to the challenges for correction officials. (1) The U.S. Attorney's Office report (2) and the Times investigative series were only the most recent salvos in a series of breaking news stories that have placed the experience of being a mentally ill inmate into the public discourse. Others have included legal rulings, such as the approval by Judge Lawrence Karlton of California's Eastern District of a plan to reduce mentally ill inmates in isolation in California prisons. Burgeoning commentaries in popular culture and conversation comprise only the surface of a growing civic movement. (3) For many readers of those reports, the contents were shocking and new; however, there is a significant medical and legal literature that has long documented these facts. From the mental health practitioner's perspective, this Article will explain that literature; how imprisonment affects those with and without mental illness, especially through solitary confinement (a condition that befalls those who are mentally ill especially frequently); and what to do about it. I. ODDITIES Prisons are odd places for the psychiatrist to be practicing mental healthcare, yet they are our de facto mental institution. The above reports reiterated what the senior author4 of this Article saw in her daily work as a staff psychiatrist at Rikers Island. There, she treated hundreds of inmates with mental illness next door to the facility's emergency medical clinic, which received a daily flow of inmates beaten to the point of losing consciousness. Treating the damage seemed paradoxical in a setting where injuries were so often the deliberate product of other inmates or, as documented in the Rikers report above, the guards themselves. Less visible but equally present were the psychological injuries. Thirty minutes of therapeutic intervention per month would be counteracted by 731.5 hours of punitive, degrading, and wounding treatment. Medication often did not get delivered by staff, who might find it inconvenient to wake a patient at four-thirty in the morning, even if the patient, desperate to receive it, had been awake much of the night trying not to miss it (inmates are usually not allowed to hold psychiatric medications themselves). And what happens to the severely ill? Since a loss of insight, and the accompanying refusal to admit that one is ill and needs help, are hallmarks of many mental illnesses, those who need care the most are the least likely to receive it. In fact, many severely ill individuals did not even get to the psychiatrist's office for an evaluation. Once, when asked to screen an inmate being taken into punitive segregation for not following orders, the senior author found him to be floridly psychotic--yet he was miscategorized as someone without any mental health problems because he was withdrawn, quiet, and in denial of his illness. …
INTRODUCTION: A CONSTITUTIONAL FAITH I. THE FOUR SONS AND THE INTERGENERATIONAL FESTIVAL OF PASSOVER II. THE WISE SON A. Keepers of Intergenerational Faith B. Problem of Formalism C. Detachment of Elite III. THE SIMPLE SON A. Constitution as Symbol B. People's Constitution IV. THE WICKED SON C. Problem of Exclusion D. Problem of Doubt V. THE SON WHO DOES NOT KNOW HOW TO ASK A. Educational Imperative B. Precipice of Silence VI. BROWN AS PEDAGOGICAL MOMENT CONCLUSION INTRODUCTION: A CONSTITUTIONAL FAITH (1) At same time as it bans establishment of religion, (2) America's Constitution brings a new into being--a in Constitution itself. Constitution is not merely a charter of government, ratified by an elite minority in 1700s and amended at various intervals across nation's history. Constitution has come to symbolize something much greater: it has become sacred text of an American community of faith. (3) Veneration of Constitution has become a central, even if sometimes challenged, aspect of American political tradition.... The flag, Declaration, Constitution--these... constitute holy trinity of what Tocqueville called American 'civil religion.' These formal symbols--and historical experiences they condense--evoke, for some, what late Alexander Bickel once termed the secular religion of American republic, in which we find our visions of good and evil. (4) Constitution is accurately called Higher Law (5)--and not only out of respect for Supremacy Clause. (6) It is source to which Americans turn when their countrymen fail them; it is promise of redemption in a currently imperfect political system. (7) It is a document that binds a pluralistic and often internally incompatible population into a unified people. (8) While some scholars would prefer to characterize this faith in fallible, man-made Constitution and its accoutrements as a form of idolatry, (9) I pass no judgment on this front. For my purposes, I only note that devotion inherent in both forms of worship is similar. An idolater's god may be false, but he reveres it nonetheless. In characterizing American Constitution as an article of faith, I mean only to capture its deep appeal to emotion--rather than its surface reliance upon rationality; I mean to emphasize its core, constitutive role in Americans' self-understanding--rather than its detached existence as formal law. American constitutional is an intergenerational enterprise--as it must be, in order to sustain itself over time. Constitution's invocation by a timeless We People has invited intergenerational slippage in authorship and ownership, (10) and retained document's symbolic potency even as founding moment recedes into distant history. This endurance of American across generations is, at some level, surprising. Like all faith-based communities, America faces challenge of maintaining vitality and viability of its collective over time--not through blunt violence, (11) but through a pedagogy that is responsive to multiplicity of viewpoints, individual experiences, and ways of understanding reflected in community. Indeed, America faces added challenges of tremendous demographic diversity and substantial inequality. Under such conditions of disunity, how is constitutional sustained both vertically--across generations--and horizontally--across contemporaneous populations with vastly different lived experiences of Constitution's promise? In hopes of beginning to answer this question, I draw a comparison to another faith-based legal system: Judaism. I pick Judaism as my point of comparison not only because it is with which I am most familiar, but also because of special relationship between law and in Judaism that makes it well-suited to constitutional comparison. …
During the last three decades, proponents of public school voucher programs on and off the bench have turned to original meanings discourse to argue that spending public dollars for religious education is consistent with the original meaning of the first amendment, as incorporated by the fourteenth. The following account argues that these arguments are wrong. Whether one weighs the narrow historical claims of formalist interpretations on their own terms, or whether one looks beyond them to a more historically comprehensive view of past meanings and intentions, or both, the originalist case is against vouchers.
2. The Real Impact of the Verdict Now that we understand how the court of public opinion treated the Ovitz affair prior to the verdict, we can turn to analyze what difference the verdict really made. Rereading the decision along with the media coverage of it generates one immediate conclusion: the conventional view that sees the verdict as a reputational deathblow to everyone involved is misguided. Granted, Chancellor Chandler's version contains some quotable caustic comments. But it also provides more nuanced and contextual explanations for the Ovitz debacle. Unlike the prevalent preexisting interpretations of what went wrong in Disney, the verdict attributes the bad outcome to rare external conditions rather than to deep-rooted disregard for market norms. And the Chancellor reserves his strongest criticisms for individuals who were already ousted from Disney, thus implicitly creating a separation between bad (ousted) individuals and a good company. As a result, to the extent that the verdict changed stakeholders' beliefs, it probably pushed stakeholders into thinking more positively about the company and its incumbent management. a. Emphasizing the Context The Chancellor opens his version with an explanation of the hiring: why Disney's board rushed to hire someone with no experience in running a large public company, and then on top of that, signed an outrageous severance package provision. Here the verdict's version differs from preexisting versions by putting more emphasis on the context. The Chancellor highlights from the outset (and then reiterates constantly) (99) the perfect storm that pushed Disney into the Ovitz affair: Disney's previous president died in a helicopter crash; Disney's CEO (Eisner) suffered from a heart condition; and the company was in the midst of major expansions. Due to these unusual circumstances, the company desperately needed a new president to take the burden off the ailing Eisner in the immediate term and to provide an insurance and succession plan for the long run. Targeting Ovitz as the quick-fix made sense at the time, since he was considered Hollywood's number one power broker. (100) And promising Ovitz a hefty severance package was necessary in order to lure him from his previous lucrative position and away from Disney's competitors who were courting him. (101) By making the context more salient, (102) the verdict helps stakeholders overcome biases that plague their reputational assessments. Most notably, the Chancellor opens his decision by explicitly warning the readers from hindsight bias: do not ask yourself whether the board's decisions make sense to you now, he tells the reader; ask whether they made sense at the time they were taken. (103) The Chancellor then provides the readers with tools to mitigate their hindsight bias: he extends the timeframe by spotlighting the events that preceded Ovitz's hiring and reminds the reader not to evaluate Disney's management integrity according to twenty-first century best practices (which were not relevant when the Ovitz affair occurred). (104) Most notably, the Chancellor emphasizes that Disney's stock prices jumped through the roof when Ovitz's hiring was announced. (105) Amazingly enough, this important fact was largely missing from the preexisting accounts of the Ovitz affair in the media. Emphasizing the context also mitigates the readers' tendency to adopt causal explanations. Remember that the pre-verdict narratives were predominantly causal: if Disney hired an incompetent president only to cushion his way out after a year with $140 million of shareholders' money, then Disney's decision-makers must lack any regard for shareholders' interests, right? (106) Wrong, says the Chancellor. No one in Disney set out to hurt shareholders. (107) In fact, Disney decision-makers--along with the rest of the world, as the stock price reaction indicates--thought that they were creating shareholder value by hiring Ovitz. …
Introduction I. The Catholic Justices in Contemporary Commentary II. The Bishops' Conference and the Catholic Justices on the Rehnquist and Early Roberts Courts A. The Rehnquist Court B. The Roberts Court Through October Term 2013 III. The Complexity of Catholic Influence Conclusion INTRODUCTION Catholics have commanded a majority on the Supreme Court since early 2006 when Justice Alito joined the Court as its fifth sitting Catholic Justice. (1) The Court's Catholic ranks swelled to a supermajority in August 2009 when Justice Sotomayor ascended to the Court. (2) These developments have resulted in plenty of commentary over the past several years linking the religious identity of the Catholic Justices with their votes and opinions. This commentary will continue as long as there are enough Catholics on the Supreme Court to make a difference in how cases turn out. There are three principal problems with much of this commentary. First, it pops up--and will continue to pop up--in the same way that the Supreme Court decides cases: one case at a time. As a result, commentary on Catholic Justices voting for the outcome supported by the Catholics bishops in an abortion case, for example, is not linked to commentary on Catholic Justices voting against the outcome supported by the Catholic bishops in a death penalty case. And the commentary on Catholic Justices voting for the outcome supported by the Catholic bishops in the contraceptives mandate cases will not be linked to commentary on Catholic Justices voting against the outcome supported by the Catholic bishops in deciding on a constitutional right to same-sex marriage. Second, there is a curious asymmetry in causal attributions. It is not deemed news- or noteworthy that Catholic Justices sometimes vote against outcomes advocated by Catholic bishops. And yet commentators somehow think it plausible to assert that when these Justices vote for an outcome supported by the Catholic bishops, they do so because they are Catholics. For example, if Justice Kennedy votes to uphold a ban on partial-birth abortion, he does so because he is a Catholic; but if he votes to find a constitutional right to same-sex marriage, he does so despite being a Catholic. This asymmetry was on display most recently when some commentary used Justice Sotomayor's Catholic background to explain her grant of an injunction to protect the Little Sisters of the Poor from the contraceptives mandate, while coverage of her dissent from a different injunction regarding the same mandate focused on her gender rather than her religious background. (2) Third, this commentary tends to ignore the legal and ideological coherence of the particular Justices' votes considered apart from their identity as Catholics. Justice Scalia's votes in abortion and death-penalty cases are explained by similar jurisprudential commitments that align him with the Bishops' Conference's position in one set of cases and against their position in the other. The same may be said of Justice Kennedy's votes in death-penalty and same-sex-marriage cases, to pick another example. Academic attitudinalists, who view Justices' votes as a function of the Justices' attitudes, attribute little significance to religion as an ideological variable. Y et armchair attitudinalists nevertheless insist on ecclesial affiliation as explanatory. This Article addresses these problems in a new way. It assesses the relationship between the religious identity of the Catholic Justices and their votes in Catholic-salient cases by drawing on an overlooked resource setting forth an institutional Catholic position in a wide range of cases--the Supreme Court filings of the United States Conference of Catholic Bishops. The Bishops' Conference is a corporate body that includes all the Catholic bishops in the United States and speaks on matters of public importance, such as the relationship between morality and law. …
INTRODUCTION I. THE PROBLEM OF TPR IN PARENTS WITH MENTAL DISABILITIES A. The Nature of Mental Disabilities Faced by Many Parents B. The Effect of Mental Disabilities on Parenting Ability 1. More Often Neglect Than Abuse 2. Research Reveals the Potential Progress of Mentally Disabled Parents II. REVIEWING THE RATIONALE FOR SALVAGING BIOLOGICAL FAMILIES: APPLYING FAMILY SYSTEMS THEORY TO EMPLOY A HOLISTIC FAMILY WELLBEING STANDARD A. Insights from Vulnerability Theory B. The Harm Caused by TPR III. ADDRESSING THE GAPS IN FEDERAL AND STATE LAW ON FAMILY REUNIFICATION SERVICES A. States Presenting Particular Problems 1. The Devil Is in the Details 2. Unjust and Unworkable Bypasses, Timelines, and Funding Priorities B. Constitutional Issues C. No Private Right of Action to Remedy Insufficient Services IV. ADDRESSING THE GAPS IN SCHOLARSHIP V. APPLYING A NEW THEORETICAL FRAMEWORK AND IMPLEMENTING SUCCESSFUL REUINIFACTION SERVICES A. Services Tailored to Each Family's Needs B. Culturally Competent Programs C. Comprehensive and Effective Visitation Programs D. Extended Timelines E. Consistent Aftercare F. Addressing the Critics of Improved Services G. Recommendations for Statutory Reform 1. More specific statutes Are Needed, Legislators should utilize Model Guidelines 2. Legislators Need to Shift Funding Incentives 3. A Rebuttable Presumption in Favor of May Be Necessary 4. Cross-Agency Collaboration and Information Sharing Are Required H. Improving the Deliberative Processes Utilized Within Systems 1. Promoting Family Group Decision-Making 2. Promoting Other Forms of Alternative Dispute Resolution 3. Further Promoting the Agency of All Family Members 4. Finding Funding for Effective Programming 5. Improving the Role of Nonlegal Actors--A Need for Enhanced Training CONCLUSION INTRODUCTION Scholars writing about family reunification for parents with mental disabilities facing termination of parental rights (TPR) proceedings have made several missteps. The matter remains conundrum for scholars, legislators, courts, practitioners, and families alike. There is need for new approach to this issue. TPR is the process whereby courts force biological parents to sever their legal ties with their children in favor of upholding the best interests by imbuing other, allegedly more well-suited individuals with those parental rights. At the point when court is considering TPR, child would have been removed from his parents' home for many months, and possibly even several years, due to charges of neglect or abuse. Reunification services are offered during the period between child's removal from his biological home and the social service agency's filing for TPR, to try to help the biological family reunite and remedy the maltreatment. Termination proceedings are more formal than other family-court proceedings, and they are typically required before adoption can occur. A termination order requires higher standard of proof than that required for foster care placement: clear and convincing evidence in termination proceedings compared to a preponderance of the evidence in foster care placements. (1) Although the federal Adoption and Safe Families Act (ASFA) of 1997 requires that state child welfare agencies and courts make reasonable efforts toward family reunification before TPR can take place, (2) federal statutes and case law provide little guidance to states about what reasonable efforts means. States have been left to interpret the concept of reasonable efforts toward reunification individually--too often to the detriment of families. There are numerous ways that parents with mental disabilities can treat and manage their illnesses, improve their parenting skills, function successfully in society, and create safe and loving homes in which to regain and raise their children. …
INTRODUCTION: PUBLIC MENTAL HEALTH POLICY I. THE COMMUNITY MENTAL HEALTH MODEL II. ALTERNATIVES TO INCARCERATION III. THE COMMUNITY MENTAL HEALTH MODEL IN CORRECTIONS A. A Definition of Mental Health in Corrections B. Requisite Components of Mental Health in Corrections C. Intermediate Care: A Crucial Component of Mental Health Services D. Suicide and Self-Harm E. A Note About Trauma IV. SOME ISSUES UNIQUE TO CORRECTIONAL SETTINGS A. Isolative Confinement and Supermax Security B. Medications and Medication-over-Objection C. Disturbed/Disruptive Prisoner D. Use of Force E. Therapeutic Cubicles F. Malingering V. SOME GUIDING PRINCIPLES CONCLUSION INTRODUCTION: PUBLIC MENTAL HEALTH POLICY Some social policies are carefully designed, vigorously debated, and then put into practice through legislation. Medicare is an example; the federal law culminates public debate and establishes a strong social policy regarding medical care for seniors. Other policies are not as clearly formulated and ultimately prove foolhardy, but they are similarly effected through legislation. imprisonment binge of the past several decades is an example. Legislation, presumably mirroring public opinion, shapes ever longer prison sentences for a growing number of charges. designers of that social policy, however, failed to see the long range costs in higher recidivism rates, decimation of inner city communities, and mandated medical care for a huge population of older prisoners. Then there are social policies that are never actually articulated, are not guided by specific legislation, and seem to have no champions. incarceration of people with serious mental illness is like that, and even though unplanned, it has been accelerating for decades. There really are no advocates for incarcerating people with serious mental illness. Sheriffs and wardens universally complain that it should not be their job to take care of people with mental illness, and they certainly were not trained for the task. There are a number of historic events that combined to send so many people with serious mental illness to jail and prison, including deinstitutionalizaton, The on Drugs, and changes in the criteria for a psychiatric defense. De-institutionalization involves the downsizing and closing of state and Veterans Affairs mental hospitals with the expectation that former patients (or, today, individuals who would have been candidates for state hospitals until the 1960s) would receive quality mental health care in the community. (4) But community mental health care, after an infusion of federal funds with President Kennedy's 1963 Community Mental Health Centers Act, would experience successive budget cuts and eventually, by the 1990s, prove vastly inadequate for the task of providing public mental health services. (5) In the same period, there was the War on with attendant sentencing guidelines that sent an unprecedented number of low-level drug offenders to prison for longer terms. Of course, since dual diagnosis, that is, psychiatric disorder plus substance abuse, is very prevalent, the on Drugs landed a huge number of individuals with serious mental illness in our jails and prisons. Meanwhile, the criteria for determining that a defendant is insane have changed. third prong of many states' statutes on insanity, the criterion whereby a defendant, on account of a mental illness or defect, is unable to control himself and refrain from the criminal act, was taken off the books. (6) This change made it more difficult to prove a defendant is not guilty by reason of insanity (NGRI), resulting in more individuals with mental illness going to prison. growing proportion of prisoners with serious mental illness created a huge over-subscription for correctional mental health services and a glaring crisis in correctional mental health care today. …
CHARACTER: AN INTRODUCTION I. TEACHING CHARACTER AND CHARTER EDUCATION: THE LEGAL FRAMEWORK A. Practice, Don't Preach: First Amendment Challenges B. The Risks of Inclusive Education: Statutory Challenges 1. Gun-Free School Zones 2. Expanding Zero Tolerance II. PLAYING THE LOTTERY: CHARTER SCHOOLS' UNIQUE IMMUNITY A. Ancillary Benefits of Results-Driven Decision-Making and Parental Inclusion B. Systemic Barriers to Suit III. DISCIPLINE & PUNISH: LIABILITIES OF INCLUSION A. Protect Our Children?: Barriers to Constitutional Claims Against Schools B. Compensating Grievous Harm: Tort Claims Against Schools CONCLUSION CHARACTER: AN INTRODUCTION looks like not giving up when you try to sound out a word! That's right, Camilla! (1) Persistence means stretching out that word long, like a piece of bubble gum from your mouth, till you figure out all the sounds! Persistence means never, ever giving up. What else does persistence look like? The students share some more ideas. Each time a student speaks the word he pounds one fist into the palm of his other hand, like a hammer steadily pounding a nail. During my recent school visit to Los Suenos Academy, one of nine schools in the Rocketship Charter Network, kindergarten teacher Chelsea Graff's dedicated lesson on character proved but one of many means of teaching the school's core values of persistence, respect, responsibility, empathy, and environmental stewardship. Teachers refer to these character traits when disciplining students and mention the school's character values in students' report cards. (2) Posters detailing the school's core values line the hallways. Baskets of plush animals sit in the corners of each classroom. These are Kimochis, an Australian brand of educational toys that employ seven different stuffed animal characters to teach emotional intelligence and self-awareness, both important components of empathy. Each stuffed toy comes with a distinct description and representations of its most frequently experienced emotions in a pocket in its belly. Throughout the day, students are encouraged to go to the Kimochi corner to hold Bug--if feeling afraid--or Huggtopus--if feeling excluded. (4) A student self-identifying with Huggtopus has a big, friendly personality that at times may overwhelm others. (5) If the student is feeling her usual exuberant self, she may select Huggtopus' happy emotion. (6) If she is feeling ignored by students annoyed by her loud personality, she may select Huggtopus' frustrated emotion. (7) At KIPP Washington Heights Middle School in Manhattan, character is taught even more overtly. In addition to dedicated bi-weekly character lessons, teachers provide students with regular character growth cards. (8) Modeled on traditional grades-focused report cards, these track student progress along each of seven character strengths: grit, zest, self-control, optimism, gratitude, social-intelligence, and curiosity. (9) Students work from their character report cards to develop goals. For instance, bring in pencils every day to demonstrate self-control, raise my hand three times in class to show zest. (10) Students celebrate one another for exhibiting the school's character values and ponder over their implementation during weekly small group meetings called trust circles. (11) Teachers also incorporate character strengths while teaching traditional subject areas; for instance, during a discussion in social studies of the Vietnam War, teachers ask why optimism might be at once a valuable and risky quality in a leader. (12) KIPP Washington Heights also incorporates character discussion into student discipline. Sixth grader Lilliana (13) used to sulk and talk back every time she was reprimanded in class, so Dean Ian Willey began bringing her to his office to discuss her behavior. (14) I had her go through the character strengths that are on my wall and helped her to figure out what she needs to work on. …
INTRODUCTION I. THE MORAL JUSTIFICATIONS DEBATE SINCE LAWRENCE A. Implications of Lawrence for Justifications B. Implications of Windsor for Justifications C. A Word on Obergefell D. What Is Moral Argumentation, and When Is It Permissible? II. POLYGAMY PROHIBITIONS: THEN AND NOW A. Early Anti-Polygamy Impulses B. Introducing and Policing the Polygamy Ban in Immigration Law C. Current Grounds for Exclusion of Polygamous Immigrants 1. State Public Policy Exception 2. Inadmissibility Grounds Under INA Section 212(a)(10)(A) III. CONTEXT FOR A CHALLENGE TO THE POLYGAMOUS IMMIGRANT BANS A. Legal Grounds for a Challenge B. Level of Scrutiny IV. CONTESTING THE POLYGAMY BANS AT THE SUPREME COURT A. State Public Policy Exception B. Inadmissibility Grounds Under INA Section 212(a)(10)(A) CONCLUSION [W]hat can be done to minimize the risk that moral justifications will be abused while still allowing moral judgments to remain a part of the law? (1) [U.S. Citizenship and Immigration Services] has an established practice of not recognizing polygamous marriages .... This practice is consistent with [Board of Immigration Appeals] precedent and not contrary to the law. (2) INTRODUCTION The U.S. Supreme Court decision in United States v. Windsor (3) reignites a long-running debate about the extent to which legislatures may justify laws on moral bases. Ten years beforehand in Lawrence v. Texas, (4) the Court made its most recent major contribution to this debate, finding that moral reasons were insufficient to sustain a law criminalizing same-sex sodomy, and striking that law as a violation of substantive due process. (5) Yet, the Lawrence majority did not define what constitutes a moral argument; the Court merely illustrated by reference to an apparently impermissible example. (6) Lawrence created several specific ambiguities with respect to moral justifications. For example, did the Court oppose legislated morality in general, or only as it pertains to sexual freedoms or discrete minorities? Would moral justification remain permissible when accompanied by a non-moral rationale, or, in fact, should courts tolerate no moral justifications whatsoever? Alternatively, did the Court simply oppose statutes whose legislative history overtly references the Judeo-Christian roots of American morality, as commonly understood? Without greater clarity, the next legislator would risk invoking unacceptable moral arguments to pass a law, and the government would risk relying on such inappropriate moral justifications to defend it. The Windsor Court only reinforced the salience of these ambiguities when it criticized the reasons motivating Congress to pass the Defense of Marriage Act (DOMA) and held section 3 of that law unconstitutional. (7) The uncertain status of moral justifications may have greatest relevance for sexual issues, which frequently spark morally charged legislative battles and judicial aftermath. Lawrence and Windsor suggest that a particular grouping of sexual practices--those historically proscribed under Judeo-Christian morality--would be most likely to require the Court to clarify its jurisprudence on legislated morality. Recognizing that these decisions explicitly expand the category of parties who may lawfully engage in sexual activity and marriage, Justice Scalia and others have argued that Lawrence and Windsor open the door to polygamy, incest, and other sexual practices traditionally viewed as deviant; the justification for each such prohibition rests primarily on moral reasoning, which this recent precedent declares impermissible. (8) Other commentators have decried Justice Scalia's logic as a slippery slope that will not come to fruition. (9) Notwithstanding such criticism, it is at least plausible that the Supreme Court's recent statements on morals-based justifications for legislation affect the legal basis for bans on traditionally deviant practices, regardless of whether the Court would in fact follow its reasoning to its natural conclusion. …
