Shulamit Almog & Sharon Bassan, The Politics of Pro and Non-Reproduction Policies in Israel, 14 J. Health & Biomed. L. 27 (2018). Reviewed Israeli background and the political reality behind reproductive technologies and abortion. Focused on pro-natal and non-natal practices. Argued for a rights-based discourse.
Lucie Arvallo, The Impact of H.B. 214: A Critical Analysis of the Texas Rape Insurance Bill, 50 St. Mary’s L.J. 453 (2019). Examined Texas House Bill 214, which requires women to purchase an additional insurance policy to cover “elective abortion,” even in cases of rape or incest. Argued that the bill is subject to constitutional challenge under the undue burden standard.
Brendan T. Beery, Tiered Balancing and the Fate of Roe v. Wade: How the New Supreme Court Majority Could Turn the Undue-Burden Standard into a Deferential Pike Test, 28 Kan. J.L. & Pub. Pol’y 395 (2019). Discussed how the new Supreme Court could hollow out the core holdings of Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman’s Health v. Hellerstedt without expressly overruling existing precedent. Further examined how the Hellerstedt court allowed for a new conservative court to do just that and how the Court can remake the undue burden standard as something like the dormant-commerce Pike test because the government usually wins under such a test.
Teneille R. Brown, Crisis at the Pregnancy Center: Regulating Pseudo-clinics and Reclaiming Informed Consent, 30 Yale J.L. & Feminism 221 (2018). Suggested tort law as an avenue of regulating crisis pregnancy centers that engage in deceptive practices, such as adopting the look of medical facilities to deceive pregnant women into thinking they are being treated by licensed medical professionals.
Simone M. Caron, “We Won’t Go Back”: Abortion Before Roe v. Wade, 9 Wake Forest J.L. & Pol’y 167 (2019). Discussed the implications of women not having access to abortions in history, dating back to World War II, and how this is fatal to women. Analyzed the procedures women would use for illegal abortions and what made women make the decision.
Clare Chambers, Reasonable Disagreement and the Neutralist Dilemma: Abortion and Circumcision in Matthew Kramer’s Liberalism with Excellence, 63 Am. J. Juris. 9 (2018). Explained how Mathew Kramer’s argument that there is no neutral solution to the disagreement about abortion should be expanded into the argument against infant circumcision. Suggested that a neutralist dilemma occurs when of two policy options, one is unreasonable.
Erwin Chemerinsky & Michele Goodwin, Constitutional Gerrymandering Against Abortion Rights: NIFLA v. Becerra, 94 N.Y.U. L. Rev. 61 (2019). Argued that the Supreme Court erred in NIFLA v. Becerra when it ruled California law requiring certain reproductive health care disclosures was unconstitutional. Asserted that the Court is utilizing the law to further the Court’s hostility to abortion and discussed the implications of the Court’s conduct.
Thomas B. Colby, The Other Half of the Abortion Right, 20 U. Pa. J. Const. L. 1043 (2018). Provided a theoretical and doctrinal framework for applying the purpose prong of the undue burden test and sought to answer a series of fundamental questions about the purpose prong that are raised, but not resolved, by Casey.
Julia Dalzell, The Impact of Artificial Womb Technology on Abortion Jurisprudence, 25 Wm. & Mary J. Race, Gender & Soc. Just. 327 (2019). Focused on the implications of the artificial womb for abortion and viability standards and how it would redefine reproductive rights and state interests. Addressed why a woman’s right to an abortion extends beyond termination of pregnancy and incorporates the right to not be a mother and the right not to create a child.
Haley Hawkins, Clearly Unconvincing: How Heightened Evidentiary Standards in Judicial Bypass Hearings Create an Undue Burden under Whole Woman’s Health, 67 Am. U. L. Rev. 1911 (2018). Explored the evolution of the abortion rights of minors and the judicial bypass process. Argued that the clear and convincing evidence standard governing judicial bypass proceedings is unconstitutional because it creates an undue burden for minors seeking abortions. Suggested elements of a model judicial bypass statute.
Katherine Jones, Student article, On Account of Sex: How Massachusetts’s Equal Rights Amendment Can Protect Choice, 28 B.U. Pub. Int. L.J. 53 (2019). Addressed how Massachusetts’s Equal Rights Amendment can protect a woman’s right to choose if the federal Constitution does not.
Cecile Laborde, Abortion, Marriage and Cognate Problems, 63 Am. J. Juris. 33 (2018). Explained how controversies surrounding marriage, abortion, and religion raise challenges to liberal neutrality. Suggested that controversial topics, like abortion and marriage, depend on social ontologies.
Hayley E. Malcolm, Pregnancy Centers and the Limits of Mandated Disclosure, 119 Colum. L. Rev. 1133 (2019). Argued that disclosure requirements for pro-life pregnancy centers are not what pro-choice advocates would like them to be. Suggested that disclosure-type regulations, which business-like pro-life pregnancy centers must usually follow, may be ineffective.
Anna K. Martin, Making Pro-Abortion Laws Pro-Choice for Female Rape Victims, 33 Wis. J.L. Gender & Soc’y 63 (2018). Analyzed the inadequacy of laws in forty-nine states when it comes to rape victims’ rights. Explained changes that need to take place under current legislation using an Illinois statute as a model.
Barry P. McDonald, A Hellerstedt Tale: There and Back Again?, 85 U. Cin. L. Rev. 979 (2018). Explained how the dynamics of the Supreme Court have affected the Court’s decisions in abortion cases since Roe v. Wade. Reflected on how Hellerstedt fits into the framework of past Supreme Court decisions and what it means for how states should interpret it.
Thomas J. Molony, Can the State Proclaim Life After Death? Hellerstedt and Regulating the Disposition of Fetal Remains, 70 Fla. L. Rev. 1047 (2018). Discussed how Texas Department of Health and Human Services proposed regulations requiring the cremation of aborted and miscarried fetuses. Reviewed whether fetal remains are considered human or have constitutional rights and how that fits in with Texas’s DHHR regulations.
Alisha Patton, Harris and Whole Woman’s Health Collide: No Funding Provisions Unduly Burden Reproductive Freedom, 70 Hastings L.J. 297 (2018). Analyzed the pro-life campaigns to defund Planned Parenthood and exclude private insurance plans that cover abortions. Explored how pro-lifers state that the government has a legitimate interest in favoring live birth over abortion. Asserted that the No Taxpayer Funding for Abortion provisions should be deemed unconstitutional under the undue burden standard because they violate the unconstitutional conditions doctrine.
Rachel Rebouche, Report of a National Meeting: Parental Involvement Laws and the Judicial Bypass, 37 Law & Ineq. 21 (2019). Summarized themes from the National Judicial Bypass Convening held in April 2018. This Convening included a diverse panel working on issues related to young people’s access to abortion.
Kaytlin L. Roholt, Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence of Abortion Exceptionalism in Garza v. Hargan, 5 Tex. A&M L. Rev 505 (2018). Applied Garza v. Hargan to suggest that the Supreme Court’s holdings in abortion cases have infringed on third-party standing and the tiers of scrutiny.
Violet S. Rush, Religious Freedom and Self-Induced Abortion, 54 Tulsa L. Rev. 491 (2019). Examined self-induced abortions by caregivers and the use of Religious Freedom Restoration Acts (RFRAs) by caregivers as a defense if they are criminally charged for assisting with abortions. Examined an application of RFRAs as a defense in Burwell v. Hobby Lobby Stores.
Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America, 117 Mich. L. Rev. 1043 (2019). Examined the intersectional conversations that the book invites and how complex the decision to terminate a pregnancy is. Discussed the social and cultural context of nonmarital family life and how citizens view nonmarital families.
Swara Saraiya, Note, Conceiving Criminality: An Evaluation of Abortion Decriminalization Reform in New York and Great Britain, 47 Colum. J. Transnat’l L. 174 (2018). Discussed how abortion reform in New York and Great Britain have placed abortion laws in the public health code rather than in the penal code. Argued that the stigma surrounding abortion makes women feel like they have committed a crime even if abortion has been decriminalized.
David M. Smolin, Aborting Reason and Equality: A Religious Pro-Life Critique of Roe, Casey, and Abortion Rights Rhetoric, 8 U.C. Irvine L. Rev. 673 (2018). Argued that religious liberty, rather than abortion liberty, should define the constitutional issue because of the First Amendment’s explicit protection of religious freedom and the lack of any equivalent textual, structural, or historical support for the abortion liberty.
Ariana Bourdet Tobias, Reproductive Healthcare Discrimination Masked Behind Religious Freedom, 52 U.S.F. L. Rev. 331 (2018). Discussed the enactment of the federal Religious Freedom Restoration Act and how it has led to an expanded interpretation of the Free Exercise Clause. Argues a slippery slope now exists, with discrimination hiding behind religious principles leading to a steady diminishment of women’s’ health care rights, such as the contraceptive coverage mandate included under the Affordable Care Act.
Jonathan F. Will et al., Personhood Seeking New Life with Republican Control, 93 Ind. L.J. 499 (2018). Examined the lack of political correctness in the abortion debate and the personhood movement. Explained that abortion opponents may find an ally in President Trump and support in the recent decision of Whole Woman’s Health v. Hellerstedt. Explored the personhood movement and other anti-abortion strategies.
Laura E. Winterberger, Obstruction of Reproductive Justice: Office of Refugee Resettlement’s Unconstitutional Abortion Policy for Minors, 50 U. Pac. L. Rev. 489 (2019). Argued that minors in immigration detention facilities have the same constitutional rights to an abortion as others in the United States. Asserts that minors in detention facilities should have the same access to abortions as juveniles detained in federal prisons.
Laura Wolk, Irreconcilable Differences? Whole Woman’s Health, Gonzales, and Justice Kennedy’s Vision of American Abortion Jurisprudence, 41 Harv. J.L. & Pub. Pol’y 719 (2018). Examined Texas’s latest legislative attempts to explore the Court’s inconsistent treatment of state interests and the role of the courts in assessing legislative fact finding. Summarized the Supreme Court’s four main decisions since Roe v. Wade, described recent legislation in Texas, and explained the inherent conflict between Gonzales and Whole Woman’s Health. Argued challenges to laws, such as the Texas statute, provide the opportunity to reaffirm Gonzales and clarify the meaning of Whole Woman’s Health.
Nikolas Youngsmith, The Muddled Milieu of Pregnancy Exceptions and Abortion Restrictions, 49 Colum. Hum. Rts. L. Rev. 416 (2018). Examined various states’ pregnancy exceptions to advance medical directives that require incompetent pregnant women to be provided with life-prolonging medical treatment. Explored abortion restrictions in comparison to pregnancy exceptions. Argued that anti-abortion principles should not be applied to pregnancy exceptions.
Mary Ziegler, After Life: Governmental Interests and the New Antiabortion Incrementalism, 73 U. Miami L. Rev. 78 (2018). Discussed the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt. Presented a two-step approach to understanding governmental interests and how they fit in with abortion rights.
Mary Ziegler, Rethinking an Undue Burden: Whole Woman’s Health’s New Approach to Fundamental Rights, 85 Tenn. L. Rev. 461 (2018). Explained the undue burden standard and how the Supreme Court applied that standard in Whole Woman’s Health v. Hellerstedt. Argued that the undue burden standard can be used to analyze laws in contexts other than abortion, such as voting rights and gun control.
Eden Bubrig, Do the Adoption Services of Catholic Charities Really Operate in the Best Interest of the Children Needing Adoption, 20 Loy. J. Pub. Int. L. 85 (2018). Discussed the foster care and adoption system in Louisiana and the regulations that the system implements. Argued that the costs and screening standards of the adoption system are too costly and do not further the best interest of the children in the system.
Dorothy Franks, The Rumor on Adopting Children for their Organs: A Compelling Reason to Address a Thriving Organ Black Market and the Prevalence of Children Being Trafficked into Adoption, 14 J. Health & Biomed. L. 169 (2018). Suggested there are many reasons to change the organ transplant system, and the trafficking of children for money, including the adoption baby rumor and its impacts.
DeLeith Duke Gossett, The Client: How States Are Profiting from the Child’s Right to Protection, 48 U. Mem. L. Rev. 753 (2018). Examined child welfare and adoption laws. Suggested that family preservation should be the focus in the child welfare system. Argued that poverty should not be a justification for removing a child from the home.
Emma C. Martin, A (Re)adoption Story: What Is Driving Adoptive Parents to Rehome Their Children and What Can Texas Do About It?, 5 Tex. A&M L. Rev. 537 (2018). Explained why the rehoming of adopted children occurs and how states have responded. Suggested several additional policies that the state could implement to prevent rehoming from occurring.
Kimberly Saindon, Religious Freedom Legislation in Texas Takes Aim at Same-Sex Marriage, 23 Tex. J. C.L. & C.R. 165 (2018). Explored Texas’s Religious Freedom Restoration Act and how it has been used to provide protections for those who oppose same-sex marriage based on their religious beliefs. Examined Texas’s Adoption Bill, which protects child welfare and adoption agencies that decline to place a child or provide services based upon sincerely held religious beliefs.
Malinda L. Seymore, Adopting Civil Damages: Wrongful Family Separation in Adoption, 76 Wash. & Lee L. Rev. 895 (2019). Discussed what legal actions can be taken by biological parents of a child who was wrongfully separated from his or her birth parents and then placed for adoption. Explored causes of actions that can be taken by the birth parents of these wrongfully separated families with the long-term objective of changing adoption agency behavior.
Tracy Smith, Comment, Stretching the First Amendment: Religious Freedom and Its Constitutional Limits Within the Adoption Sector, 46 Pepp. L. Rev. 113 (2018). Explained that many states have introduced religious-freedom bills that allow faith-based adoption agencies to turn away parents who are deemed objectionable on religious grounds. Maintained that such laws discriminate against same-sex couples. Argued that the First Amendment is inadequate to shield these laws from constitutional challenges. Proposed that courts should utilize the best-interest-of-the-child standard in assessing such cases.
Allison M. Whelan, Denying Tax-Exempt Status to Discriminatory Private Adoption Agencies, 8 U.C. Irvine L. Rev. 711 (2018). Explored private adoption agencies’ policies against placing children into families where the parents are gay, lesbian, bisexual, or transgender. Asserted that the established public policy at issue here is the best interests of the child, which includes the importance of ensuring that children have safe, permanent homes. Argued that private adoption agencies that refuse to facilitate adoptions by same-sex parents, thereby narrowing the pool of qualified prospective parents and reducing the number of children who are adopted, act contrary to the established public policy of acting in the best interests of the child.
Alternative Dispute Resolution
Joshua Aaron Jones, Florida Family Law Bounds of Advocacy: A Mandate for Collaborative Practice, 43 Nova L. Rev. 1 (2018). Discussed the purpose of the Florida Family Law Bounds of Advocacy (BoA). Noted that the BoA provides guidance for ethical dilemmas in family law. Explained that collaborative family law facilitates dispute resolution outside of the courtroom by utilizing interdisciplinary teams of professionals (such as attorneys, mental health professionals, financial professionals, and other professionals) whose expertise is relevant to the particular family dispute. Maintained that this collaborative approach functions properly when professionals uphold four main pillars: competency, confidentiality, good-faith negotiation, and informed consent. Emphasized that the only professionals who are not neutral in collaborative resolution are the parties’ respective attorneys. Suggested that collaborative dispute resolution should be the norm in family law practice because the adversarial approach is inadequate for resolving family law disputes.
Donna Erez Navot & Brian Farkas, First Impressions: Drafting Effective Mediation Statements, 22 Lewis & Clark L. Rev. 157 (2018). Proposed guidelines for litigators seeking to draft effective premediation statements that will be most helpful to mediators and their clients.
Assisted Reproductive Technologies
Gregory S. Alexander, Of Buildings, Statues, Art, and Sperm: The Right to Destroy and the Duty to Preserve, 27 Cornell J.L. & Pub. Pol’y 619 (2018). Explained that disposition of human reproductive material is one of the most contentious of disputes involving the right to destroy. Analyzed the right to destroy from the perspective of the human flourishing theory.
Adeline A. Allen, Surrogacy and Limitations to Freedom of Contract: Toward Being More Fully Human, 41 Harv. J.L. & Pub. Pol’y 753 (2018). Showed that surrogacy does not belong in freedom to contract, but in the limitation to freedom of contract. Concluded that surrogacy should be prohibited in the U.S. as against public policy orientated toward being more fully human.
Shannon S. Bassan, Different but the Same: A Call for Joint Pro-active Regulation of Cross-Border Egg and Surrogacy Markets, 28 Health Matrix 323 (2018). Analyzed the right to legitimize the markets for cross-border egg and surrogacy transactions and asserted that if it was regulated, the market would regulate the failures within its system.
Naomi Cahn, The New “ART” of Family: Connecting Assisted Reproductive Technologies and Identity Rights, 2018 U. Ill. L. Rev. 1443 (2018). Observed that technological strides in the reproductive-services industry increase donor offspring and children born through surrogacy. Explored the legal rights of donor offspring. Advocated for donor offspring to be able to know their donor’s identity.
Chelsea E. Caldwell, Baby Got Back? Enforcing Guardianship in International Surrogacy Agreements When Tragedy Strikes, 49 U. Mem. L. Rev. 847 (2019). Argued that countries should adopt an international surrogacy reform of comity that gives deference to the parties’ intent. Further argued that this adoption would eliminate the problem of stateless children. Discussed a hypothetical in which R.H. and M.H. have baby S, born by surrogacy, when the parents die, and the practices that will best alleviate the issue of a stateless child when the child is left in a country with persons not intended for them.
Andrew Cunningham, A Cleaner, CRISPR Constitution: Germline Editing and Fundamental Rights, 27 Wm. & Mary Bill Rts. J. 877 (2019). Explained the CRISPR/Cas9 process, the newest form of genetic engineering technology. Explored arguments for and against one’s constitutional right to privacy concerning the editing of an embryo. Evaluated whether or not an individual can have a right to access private entities for medical treatment and how the Supreme Court has historically handled issues like this.
Tessa R. Davis, Freezing the Future: Elective Egg Freezing and the Limits of the Medical Expense Deduction, 107 Ky. L.J. 373 (2018). Evaluated the IRS’s treatment of elective egg freezing. Argued that the IRS has not adopted a principal approach for this new emerging fertility technology, and it is unlikely to allow women to deduct the very expensive costs of elective egg freezing.
Michele Goodwin, Challenging the Rhetorical Gag and TRAP: Reproductive Capacities, Rights, and the Helms Amendment, 112 Nw. U. L. Rev. 1417 (2018). Examined TRAP laws and the Helms Amendment to demonstrate how they are being used to uphold the patriarchy and not keep women healthy as they claim. Suggested that U.S. policy on women’s reproduction in other countries diminishes the rights of women in developing countries.
Matthew D. Hebert, Opening a Can of Genetically-Modified Worms: Funding and Regulating CRISPR Technology, 52 Val. U. L. Rev. 505 (2018). Proposed new legislation that Congress could pass to help facilitate further research involving Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR), while also addressing many ethical concerns that have many people fearful for the future direction of biosciences.
Brianna R. Iannacci, Why New York Should Legalize Surrogacy: A Comparison of Surrogacy Legislation in Other States with Current Proposed Surrogacy Legislation in New York, 34 Touro L. Rev. 1239 (2018). This note begins by outlining the history of surrogacy, the importance of the Obergefell decision, and the different types of surrogacy. It goes on to describe the surrogacy laws in several jurisdictions. Lastly, it compares these laws to those of New York and discusses the constitutional implications of surrogacy and the arguments that accompany them.
Holly Jones, Contracts for Children: Constitutional Challenges to Surrogacy Contracts and Selective Reduction Clauses, 70 Hastings L.J. 595 (2019). Examined several constitutional challenges that can be raised in opposition to the enforcement of a surrogacy contract and concluded that the constitutional rights of the surrogate mother outweigh the contractual rights of the intended parent(s) to a surrogacy contact.
Sital Kalantry, Regulating Markets for Gestational Care: Comparative Perspectives on Surrogacy in the United States and India, 27 Cornell J.L. & Pub. Pol’y 685 (2018). Described the surrogacy laws in both India and the U.S and the disparate industry norms in the two countries. Argued disparate norms occur because the U.S. operates according to common law, particularly contract and tort law, whereas India does not change according to common law. Further argued the contract framework is an option for India to consider when formulating legislation to regulate gestational care markets.
Jean Denise Krebs, Any Man Can Be a Father, but Should a Dead Man Be a Dad?: An Approach to the Formal Legalization of Posthumous Sperm Retrieval and Posthumous Reproduction in the United States, 47 Hofstra L. Rev. 775 (2018). Proposed two possible legal solutions that allow posthumous sperm retrieval (PSR) and posthumous reproduction (PHR) to occur while respecting the deceased’s ability to be in charge of the fatherhood chapter, the scientific and legal background of PSR and PHR, and the legal and ethical dilemmas of PSR and PHR. The legal solutions include an amendment to the Uniform Anatomical Gift Act of 2006 and raising awareness to the problems of PHR and PSR and the need for express consent.
Pamela Laufer-Ukeles, The Disembodied Womb: Pregnancy, Informed Consent, and Surrogate Motherhood, 43 N.C. J. Int’l L. 96 (2018). Discussed pregnancy and the way it can compromise autonomy and individuality if not protected; the nature of informed consent and the way pregnancy undermines a pregnant woman’s autonomy when it comes to medical decision-making; the incompatibility of surrogate motherhood and informed consent; and, finally, what can be done to further autonomy for the surrogate mother. Concluded by describing how a more ethical system of surrogacy might function.
Jody Lyne Madeira, Uncommon Misconceptions: Holding Physicians Accountable for Insemination Fraud, 37 Law & Ineq. 45 (2019). Discussed how insemination fraud is a criminal and civil violation but how it is difficult to hold perpetrators accountable.
Kimberly M. Mutcherson, Things That Money Can Buy: Reproductive Justice and the International Market for Gestational Surrogacy, 43 N.C. J. Int’l L. 150 (2018). Described how the market has become a border-crossing phenomenon. Explained how the reproductive justice paradigm reveals concerns about the exploitation of women who act as surrogates in the global market. Further described the phenomenon of reproductive travel and how it creates concerns about surrogacy for the developing world. Contrasted claims of exploitation of women versus autonomy for women when it comes to the market for reproductive labor.
Devon Quinn, Her Belly, Their Baby: A Contract Solution for Surrogacy Agreements, 26 J.L. & Pol’y 805 (2018). Maintained that unclear, outdated, and inconsistent state laws impede surrogacy arrangements. Asserted that agreements between a surrogate mother and intended parents should be managed under the Choice Theory of Contracts.
Rebecca Rodriguez, Beyond Dr. Frankenstein’s Monster: Human Germline Editing and the Implications of Waiting to Regulate, 38 N. Ill. U. L. Rev. 585 (2018). Advocated for the adoption of the American Society of Human Genetics’ position statement addressing the lack of regulation and proposing of a set of guidelines for regulators to consider regarding genetically altered products.
Elizabeth J. Samuels, An Immodest Proposal for Birth Registration in Donor-Assisted Reproduction, in the Interest of Science and Human Rights, 48 N.M. L. Rev. 416 (2018). Explained the benefits of preserving identifying records for both recipients and donors used for donor-assisted reproduction. Suggested that preserving the documents for the descendants and donors would be socially beneficial.
Daniel Schwartz, Note, Gestational Surrogacy Contracts: Making a Case for the Adoption of the Uniform Parentage Act, 33 Wis. J.L. Gender & Soc’y 131 (2018). Asserted that commercial surrogacy contracts are controversial because of the commodification of babies and exploitation of women. Argued that socioeconomic differences between surrogates and intended parents allows the wealthier intended parents greater bargaining power over surrogates. Noted that states have adopted widely varying laws regarding gestational surrogacy. The Uniform Parentage Act (UPA) has updated its policy to include gestational surrogacy contracts, including rules that the surrogate must be at least 21, have given birth in the past, have a medical evaluation, relinquish parental rights to the intended parents, and be adequately compensated for the surrogacy. Proposed that all states should adopt the UPA because it protects both surrogates and intended parents.
David M. Smolin, The One Hundred Thousand Dollar Baby: The Ideological Roots of a New American Export, 49 Cumb. L. Rev. 1 (2018–2019). Discussed the development of and the issues associated with surrogacy and adoption in the United States. Proposed statutory changes to protect our society from a “black market” for babies.
Alexus Williams, State Regulatory Efforts in Protecting a Surrogate’s Bodily Autonomy, 49 Seton Hall L. Rev. 205 (2018). Discussed state regulation of surrogacy issues and how such regulation affects the bodily autonomy of the surrogates. Proposed solutions for the gaps in protection for surrogates, specifically regarding how rights should not be contracted away and how the courts can justify upholding these rights.
Timothy L. Arcaro, Think Fast: Post Judgment Considerations in Hague Child Abduction Cases, 23 Suffolk. J. Trial & App. Advoc. 237 (2018). Analyzed the expedited post-judgment process of the Hague Convention on the Civil Aspects of International Child Abduction. [International Law]
Angela Marie Caulley, Equal Isn’t Always Equitable: Reforming the Use of Joint Custody Presumptions in Judicial Child Custody Determinations, 27 B.U. Pub. Int. L.J. 403 (2018). Discussed the evolving history of child custody law. Discussed, analyzed, and critiqued current attempts to reform traditional best-interest decision-making, and the movement of states toward using joint custody presumptions. Acknowledged the troubles of joint custody presumptions and argued that the interests of children necessitate reforming the way courts employ joint custody presumptions.
Anastasia Doherty, Choosing to Raise a Child Conceived Through Rape: The Double-Injustice of Uneven State Protection, 39 Women’s Rts. L. Rep. 220 (2018). Discussed the lack of statutory protection across the states for women who choose to raise children conceived through rape and the difficulties these women encounter in matters of family law such as custody and support of the child conceived through rape.
Cassandra Erler, Far from Now-Settled: The Supreme Court’s Decision in Lozano v. Montoya Alvarez as a Violation of Substantive and Procedural Due Process Under the International Child Abduction Remedies Act, 26 Am. U. J. Gender & Soc. Pol’y & L. 793 (2018). Examined the International Child Abduction Remedies Act (ICARA). Critically analyzed the Supreme Court’s decision in Lozano v. Montoya Alvarez and suggested that the Court erred in its holding. Argued that equitable tolling should be applied in ICARA cases. [International Law]
Ryan Fortson & Troy C. Payne, Lawyering Up: The Effects of Legal Counsel on Outcomes of Custody Determinations, 22 U.C. Davis J. Juv. L. & Pol’y 1 (2018). Explained that having an attorney can increase the chances of a parent achieving his or her desired custody outcome, but only if that parent is represented and the other parent is unrepresented. Provided results that can have a substantial impact on those advocating for the increased availability of free or low-cost legal services in custody cases.
Shawn McCall, Bringing Specificity to Child Custody Provisions in California, 49 Golden Gate U. L. Rev. 141 (2019). Argued that defining the “best interest of the child” standard in California can be done empirically through social science. Explained that the best interest standard should be calculated by the minimum amount of time a child needs with each parent during a two-week period in order to have an optimal opportunity for successful development. Asserted this may provide more clarity in family law proceedings to parents, attorneys, and judges.
Bailey M. Schamel, Inadvertent Resurrection of the Equitable Parentage Doctrine in Missouri? An Evaluation of Motions for Third Party Custody and Defining a “Natural Father,” 83 Mo. L. Rev. 475 (2018). Discussed the Supreme Court of Missouri decision in Bowers v. Bowers that awarded full custody of a child to her stepfather. Analyzed the Missouri Uniform Parentage Act and the approaches that Missouri courts have taken when a child’s nonbiological parent seeks full custody. Explained the supreme court’s rationale in Bowers and why the court should have considered the stepparent the “natural father” instead of a third party.
Debra Pogrund Stark, Jessica M. Choplin & Sarah Elizabeth Wellard, Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-Based Analysis and Reform Proposal, 26 Mich. J. Gender & L. 1 (2019). Reviewed effects of domestic violence both in and outside of the courtroom. Addressed practices for domestic violence in child custody cases. Detailed the custody laws of all the states and found there are gaps between the best practices from the literature review and what is required by the states. Argued for reforming laws to account for domestic violence when determining custody disputes.
Susan Frelich Appleton, Doing Better for Child Migrants, 17 Wash. U. Global Stud. L. Rev. 615 (2018). Analyzed whether the best interests of the child approach should be used in unaccompanied child migrant cases.
Mirko Bagric, Gabrielle Wolf & Peter Isham, Trauma and Sentencing: The Case for Mitigating Penalty for Childhood Physical and Sexual Abuse, 30 Stan. L. & Pol’y Rev. 1 (2019). Examined whether lack of guidance as a youth should serve to reduce the severity of criminal sanctions. Suggested that 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 generally reducing sentences for female offenders and for offenders from socioeconomically deprived backgrounds.
Kathryn P. Banks, The Trickle up Effect: Incorporating an Understanding of Immigration Law and Policies into Best Interest Analysis in State Child Welfare Proceedings, 17 Wash. U. Global Stud. L. Rev. 627 (2018). Examined how an understanding of federal immigration law can improve state child welfare law and vice versa.
Teri Dobbins Baxter, Child Marriage as Constitutional Violation, 19 Nev. L.J. 39 (2018). Argued that child marriages violate minors’ rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Specifically, allowing adults to marry young girls deprives the girls of the protection of statutory rape laws and lack of maturity deprives children of their fundamental right to choose whether and who they will marry.
Uri Blasbalg, Irit Hershkowitz & Yael Karni-Visel, Support, Reluctance, and Production in Child Abuse Investigative Interviews, 24 Psychol. Pub. Pol’y & L. 518 (2018). Child abuse victims are required to participate in stressful investigations but often fail to fully report details about their victimization. Shed light on the underlying mechanisms of support, suggesting both direct and indirect effects on children’s informativeness.
Kathryn Webb Bradley, Surrogacy and Sovereignty: Safeguarding the Interests of Both the Child and the State, 43 N.C. J. Int’l L. 1 (2018). Described the rights and responsibilities related to surrogacy of the intended state of residence, the intended parents, and the child. Examined selected cases in which cross-border surrogacy led to questions concerning the child’s citizenship or parentage, and the extent to which the state was able to protect the interests of the child. Explained how a state can ensure respect for its laws while also protecting the interests of a child born through surrogacy.
Kyndra C. Cleveland & Jodi A. Quas, Parents’ Understanding of the Juvenile Dependency System, 24 Psychol. Pub. Pol’y & L. 459 (2018). Discussed practical implications and recommendations for family dependency policy, including the need for a standard assessment of parent understanding and programs to improve knowledge after interviewing 105 parents involved in ongoing juvenile dependency cases.
Sarah Deer & Mary Kathryn Nagle, Return to Worcester: Dollar General and the Restoration of Tribal Jurisdiction to Protect Native Women and Children, 41 Harv. J.L. & Gender 179 (2018). Analyzed the Supreme Court’s decision in Dollar General Corp. v. Mississippi Band of Choctaw Indians. Argued that tribal courts should have exclusive jurisdiction over non-Indian-perpetrated violence against Native women and children.
Christianna Dougherty-Cunningham, Family Preservation and Prevention, Engagement, and Access to Services in Virginia, 31 Regent U. L. Rev. 235 (2018–2019). Discussed how prevention services should be the norm, and Virginia families should feel supported and heard. Focused on an approach that allows families to feel less resistant to participate in voluntary services.
Joseph G. DuChane, In Defense of Hearth and [Foster] Home: Determining the Constitutionality of State Regulation of Firearm Storage in Foster Homes, 75 Wash. & Lee L. Rev. 1639 (2018). Discussed the state laws that prevent foster parents from owning a firearm in their home, and whether the prohibition of the firearms directly goes against the Supreme Court ruling of District of Columbia v. Heller.
Jordan Enciso, Leaving Home: How Running Away Impacts the Lives of Juveniles and Society as a Whole, 19 Fla. Coastal L. Rev. 143 (2018). Discussed the issues associated with running away. Specifically, looked into the following: why children run away, whether running away is a crime, and the long-term effects running away can have on the juvenile who chooses to run away.
Ann Laquer Estin, Child Migrants and Child Welfare: Toward a Best Interests Approach, 17 Wash. U. Global Stud. L. Rev. 589 (2018). Examined statutes and procedures governing the treatment of unaccompanied migrant children. Argued that the United States should improve protections provided to unaccompanied migrant children.
Parker C. Eudy, “On Behalf of Each Child”: Section 1983 Enforcement of the Right to Foster Care Maintenance Payments Under the Child Welfare Act, 85 U. Chi. L. Rev. 1719 (2018). Stated that the Child Welfare Act creates an enforceable right to foster care maintenance payments under § 1983. Additionally, argued that by ensuring that these foster care maintenance payments are given to foster caregivers, the CWA would help reduce the likelihood that a foster child is shuffled between foster homes.
Kara R. Finck, Medical Legal Partnerships and Child Welfare: An Opportunity for Intervention and Reform, 28 Widener Commw. L. Rev. 23 (2019). Discussed the growing movement for medical legal partnerships (MLP) and how helpful they can be in the child welfare system. Examined the unmet legal needs for children in the child welfare system, and how delivering MLP to the child welfare system can drastically improve their life.
Matthew L. M. Fletcher, On Indian Children and the Fifth Amendment, 80 Mont. L. Rev. 99 (2019). Examined the Fifth Amendment of the U.S. Constitution and its application to tribal affairs. Detailed cases concerning this issue. Proposed a new method of interpreting the Fifth Amendment concerning Indian affairs considering “the political origins of the amendment” instead of the modern take of individual rights approach that courts often apply.
Liat Franco, Minorgraphy—Minors Creating Pornography—A New Digital Practice Demands a Reframing of Children’s Rights, 57 Washburn L.J. 481 (2018). Addressed the issues of child rights in the digital age. Discussed the applicability of existing global constitutional frameworks that addressed children’s rights and the United Nations Convention on the Rights of the Child (CRC), particularly in regard to cyberbullying. Further addressed the applicability of existing law to a specific form of cyberbullying. Created the term “minorgraphy” when dealing with the practice of transferring and distributing digital images of minors, produced, consumed, and distributed by minors themselves.
Hon. Carrie E. Garrow, Changing Family Courts to Help Heal and Build Resilient Families, 2018 BYU Rev. 1277 (2018). Judge in Healing and Wellness Courts examined how the courts can better help families come back together after tough times. Explored how indigenous cultures rely on the idea of collaboration and community to help raise children and build a strong home.
Stephanie K. Glaberson, Coding over the Cracks: Predictive Analytics and Child Protection, 46 Fordham Urb. L.J. 307 (2019). Explained the risks and benefits of using predictive analytics to assist child welfare agencies and argued for systematic improvements to the child welfare system; warned of the dangers of using predictive analytics as a temporary fix for a broken child welfare system.
Samantha Jacobson, The Impact of Parental Narcissistic Personality Disorder on Children and Why Legal Intervention Is Warranted, 24 Cardozo J. Equal Rts. & Soc. Just. 315 (2018). Discussed parental narcissism and how it can negatively affect children. Narcissistic personality disorder and other mental health issues can be invisible, and state and federal laws are inadequate at addressing the issue. Lastly, proposed approaches to broadening the court’s understanding of psychological abuse were presented and analyzed.
Samuel Vincent Jones, Police, Heroes, and Child Trafficking: Who Cries When Her Attacker Wears Blue?, 18 Nev. L.J. 1007 (2018). Asserted police involved in child sex trafficking and child sex offenses represent a continuous threat to child safety. Examined the dichotomy between dedicated police officers protecting children to police exploiting members of a highly vulnerable group, children.
Mary Kate Kearney et al., Children in the Courts: A Developed or Developing System?, 28 Widener Commw. L. Rev. 1 (2019). Discussed abuses that children experience when going through the court system, and how the Adoption and Safe Families Act is traumatic in the way that it removes children from their home and places them in the court system.
Laura King, Damned if You Do: The Rational Parents Quandary Under Criminal Failure-to-Protect Statutes, 13 Liberty U. L. Rev. 121 (2018). Used case studies to show the possible problems in the execution of “failure-to-protect” statutes, including accountability and battered woman syndrome.
Alicia LeVezu, Alone and Ignored: Children Without Advocacy in Child Abuse and Neglect Courts, 14 Stan. J. C.R. & C.L. 125 (2018). Assumed that children are being represented inadequately by adult advocates in the courtroom. Examined a court observation study from Washington State that concluded there is noncompliance with federal law and complete lack of advocacy for children, resulting in children having no advocate, causing their needs to be completely ignored in court cases.
Amanda McNelly, Truancy, Secure Detention and the Right to Liberty, 24 Suffolk J. Trial & App. Advoc. 112 (2018–2019). Examined data regarding the detrimental effects on the mental health of youths placed in secure detention and discussed the strict scrutiny analysis of the states’ interest weighted against the means by which these interests are being achieved. Also examined the history of the compulsory education laws and the role of the justice system in relation to truancy. Finally, surveyed the states currently implementing secure detention for violating a court order in relation to truancy and proposed a more mentally beneficial and legally constitutional means of achieving the state interest of reducing truancy.
Cindy Miller-Perrin & Ryan Rush, Attitudes, Knowledge, Practices, and Ethical Beliefs of Psychologists Related to Spanking: A Survey of American Psychological Association Division Members, 24 Psychol. Pub. Pol’y & L. 405 (2018). Examined attitudes, ethical beliefs, and professional practices related to spanking in a sample of American Psychological Association division members and representing a replication and extension of a similar survey conducted eighteen years ago.
Cara O’Connor, A Guiding Hand or a Slap on the Wrist: Can Drug Courts Be the Solution to Maternal Opioid Use?, 109 J. Crim. L. & Criminology 103 (2019). Compared three states that have attempted to deal with babies born with Neonatal Abstinence Syndrome (NAS) by criminalizing maternal drug use with a recently established drug court in Buffalo, New York. Recommended certain reforms that are necessary to effectively adjudicate cases involving pregnant women struggling with opioid addiction.
Kasey D. Ogle, Why Try to Change Me Now? The Basis for the 2016 Indian Child Welfare Act, 96 Neb. L. Rev. 1007 (2018). The Indian Child Welfare Act was passed as a response to systemic failures that resulted in Indian children being displaced from their families and communities at “significantly higher rates than non-Indian children.” Some changes to the Act were made in 2016, and some claim these changes violate the Administrative Procedure Act, the Equal Protection Clause of the Fifth Amendment, the Tenth Amendment, and Article I of the Constitution.
Daniel Oquendo, Failing the Most Vulnerable Among Us: The Lack of Redress for Children with Disabilities, 63 N.Y.L. Sch. L. Rev. 61 (2018–2019). Contended that the current landscape diminishes the possibility of redress for children with disabilities who are victims of sexual abuse at school. Noted that lower courts bound by precedent fail to take this rigid standard into account when they block vital testimony from being admitted at trial, and strict adherence to evidentiary rules in cases involving vulnerable children with disabilities frustrates the ability of sexual abuse claims to survive motions for summary judgment. Outlined potential solutions for remedying this outcome.
Diane Whitmore Schanzenbach, Early Life Impacts on Later Life Health and Economic Outcomes, 57 Wash. U. J.L. & Pol’y 103 (2018). Explored how access to Supplemental Nutrition Assistance Program (SNAP) not only contributes to better health outcomes for children, but also better health and economic outcomes later in life. Explained how early childhood investment has a more significant, long-term economic impact than is currently understood and that policy makers should look at intervention programs as economic investments that are not solely charity.
Ryan C. F. Shellady, Martinis, Manhattans, and Maltreatment Investigations: When Safety Plans Are a False Choice and What Procedural Protections Parents Are Due, 104 Iowa L. Rev. 1613 (2019). Focused on a safety plan, its flaws, benefits, and constitutional implications. Encouraged a change in safety plan legislation to afford the least restrictive solution available, extend procedural rights to parents, and encourage data collection quantifying annual use of safety plans around the country while discouraging safety plan ultimatums.
Catherine E. Smith, State Action That Penalizes Children as Evidence of a Desire to Harm Politically Unpopular Parents, 51 Suffolk. U. L. Rev. 439 (2018). Examined the animus doctrine that was established under equal protection law. Suggested that the animus doctrine can be used to chill government action that unfairly denies children basic rights and benefits based on anti-parent animus.
Matthew M. Stevenson et al., Associations Between Parental Relocation Following Separation in Childhood and Maladjustment in Adolescence and Young Adulthood, 24 Psych. Pub. Pol. & L. 365 (2018). Explored the adverse effects of parental relocation on children after a divorce or legal separation.
Jordan Blair Woods, Religious Exemptions and LGBTQ Child Welfare, 103 Minn. L. Rev. 2343 (2019). Discussed the LGBTQ religious exemptions of Mississippi House Bill 1523, which permits religious organizations to deny services to the LGBTQ community. Explored theories of sexual deviance and explained how religious exemptions, like HB 1523, contribute to harming LGBTQ children in the child care system. Argued that eliminating LGBTQ inequality in the child welfare system is crucial.
Yeoeun Yoon, Building Broken Children in the Name of Protecting Them: Examining the Effects of a Lower Evidentiary Standard in Temporary Removal Cases, 19 U. Ill. L. Rev. 743 (2019). Argued for higher evidentiary standards when courts decide temporary child removal cases. Argued for providing more resources and alternatives for families that experience removal in the early stages of low-risk cases in order to provide protection for children from unnecessary separations.
Helen M. Alvare, Is This Any Way to Make Civil Rights Law: Judicial Extension of Marital Status Nondiscrimination to Protect Cohabitants, 17 Geo. J.L. & Pub. Pol’y 247 (2019). Argued that in order to protect cohabiting couple who are unmarried under the “marital status,” it should be accomplished through the legislation process. Suggested that cohabitation should not fall under the “marital status.”
Margaret Ryznar & Anna Stepien-Sporek, Cohabitation Worldwide Today, 35 Ga. St. L. Rev. 299 (2019). Focused on issues of cohabitation—such as parenting decisions and property divisions—when unmarried cohabitants part ways. Argued that as rates of cohabitation increase, so too must judicial means of divying up property and resolving issues of parental rights.
Disability Law and Families
Joshua B. Kay, Advocating for Children with Disabilities in Child Protection Cases, 35 Touro L. Rev. 345 (2019). Defined “disability,” discussed the prevalence of disabilities in children involved in child protection proceedings, and advocated for improved services and statutory protection for such children.
Joshua B. Kay, The Americans with Disabilities Act: Legal and Practical Applications in Child Protection Proceedings, 46 Cap. U. L. Rev. 783 (2018). Discussed the interplay of disability rights and child protection cases and the various challenges faced by parents with disabilities that increase their risk of involvement in child protection cases. Described biases about parents with disabilities often held by various players in the system, including case workers and judges. Discussed research showing that the reality of child welfare for parents with disabilities belies commonly held biases, and explored different approaches that legal advocates should adopt when representing parents with disabilities.
Katherine Lease, A Reasonable Solution for Working Parents: Expanding Reasonable Accommodation Under the Americans with Disabilities Act to Parents of Children with Disabilities, 25 Wm. & Mary J. Race Gender & Soc. Just. 709 (2019). Discussed the discrimination many parents of children with disabilities experience in the workplace. Detailed why these caretakers are most often women and suggested ways to accommodate the parents of disabled children. Explored the implications that expanding these accommodations to the caretakers of elderly people could possibly have.
Nicole Buonocore Porter, Mothers with Disabilities, 33 Berkeley J. Gender L. & Just. 75 (2018). Focused on mothers with disabilities and how they are entitled to their legal rights, in particular, custody rights over their children. Noted that there is bias for women and women with disabilities in both of these sections of the law (e.g., mothers with disabilities are often pressured to stay in abusive relationships because they are not able to financially support themselves or their children). Explored the American with Disabilities Act, the “Maternal Wall,” and the National Council on Disability impacts on mothers.
Sofia Yakren, “Wrongful Birth” Claims and the Paradox of Parenting a Child with a Disability, 87 Fordham L. Rev. 583 (2018). Proposed three legal reforms to wrongful birth claims: (1) broadening the analysis of emotional distress to reflect and legitimize mothers’ paradoxical feelings about their children; (2) reframing the harm to mothers as loss of reproductive choice rather than as the birth of a flawed child and, accordingly, expanding available economic damages to include plaintiff-mothers’ unexpected child care responsibilities; and (3) educating plaintiffs’ attorneys to empathize with the emotional aspects of mothers’ litigation experiences and to counsel mothers accordingly.
Katelyn Brunson, The Terms and Conditions of “iDo”: How iCloud Will Affect the Distribution of Marital Assets in South Carolina, 12 Charleston L. Rev. 153 (2018). Analyzed the history of marriage and divorce and the effects of modern technology.
Michelle Kariyeva, Chained Against Her Will: What a Get Means for Women Under Jewish Law, 34 Touro L. Rev. 757 (2018). Described how Jewish culture is highly critical of women who divorce their husbands. Explained that obtaining a divorce entails proceedings under both civil and religious law. Described the process of obtaining a get (religious divorce) and the consequences thereof. Explores whether a get constitutes a halachically valid divorce agreement.
Ayelet Hoffmann Libson, Not My Fault: Morality and Divorce Law in the Liberal State, 93 Tul. L. Rev. 599 (2019). Discussed the critiques of the no-fault divorce revolution and the argument that moral evaluations can and should be placed back into family law through a hybrid fault divorce system. Specifically covered two issues: (1) the problems with relegating marital misconduct to tort law and (2) the justification for incorporating the evaluation of marital misconduct into the divorce proceedings.
Margaret Ryznar & Angélique Devaux, Voilà! Taking the Judge out of Divorce, 42 Seattle U. L. Rev. 161 (2018). Examined the way the French have reformed the way their citizens obtain a divorce. Noted that France recently adopted a form of divorce in which there is no judicial intervention; rather, the individuals contract the divorce themselves. Illustrated how this concept would look if adopted here in the United States and whether the U.S. would ever adopt it.
Margaret Scharle, Recent Developments: Al-Juffali v. Estrada: Battle Royale: A Fight for Alimony, 26 Tul. J. Int’l & Comp. L. 459 (2018). Explained how diplomatic immunity was applied in Al-Juffali v. Estrada and how the political nature of diplomatic immunity creates difficulties in maintaining peaceful relations between countries.
Andrew Schepard, Marsha Kline Pruett & Hon. Rebecca Love Kourlis, If We Build It, They Might Come: Bridging the Implementation Gap Between ADR Services and Separating and Divorcing Families, 24 Harv. Negotiation L. Rev. 25 (2018). Discussed that available ADR services are not being utilized by separating and divorcing families to their highest benefit and offered practical methods for long-term legal and cultural change to maximize utilization of available ADR resources for families experiencing divorce or separation.
Jennifer Bennett Shinall, Settling in the Shadow of Sex: Gender Bias in Marital Asset Division, 40 Cardozo L. Rev. 1857 (2019). Discussed gender bias in divorce settlements. Outlined ways to minimize the effects of gender bias for divorce settlements.
Nathan Wadlinger et al., Domestic Asset Tracing and Recovery of Hidden Assets and the Spoils of Financial Crime, 49 St. Mary’s L.J. 609 (2018). Defined the first two steps of the domestic asset recovery process, outlined the factors to consider when deciding whether to pursue asset recovery, detailed the parties to whom to trace assets, discussed information-gathering techniques, explained places where assets may be hidden, and outlined the means to freeze assets once they are located.
Karla M. Doe, Let’s Not Throw out the Baby with the Bathwater: A Uniform Approach to the Domestic Relations Exception, 67 Emory L.J. 1077 (2018). Explained the domestic relations exception and the effect that the on-point Supreme Court case Ankenbrandt v. Richards has had on shaping the exception. Critiqued the current approach used by courts and suggested using a three-step approach to the issues surrounding the domestic relations exception.
Giselle Guro, Extending the Barriers of Family: How the Concept of “Nuclear Family” Affects Asian-Americans in Poverty, 52 U.S.F. L. Rev. 429 (2018). Discussed the history of Asian-American families’ struggles to achieve the “nuclear family” ideal in the WWII era, and how that developed the Asian-American’s culture of multigenerational households.
Barry B. McGough, Elinor H. Hitt & Abby M. Herrmann, Domestic Relations, 70 Mercer L. Rev. 81 (2018). Addressed case law that arose from June 1, 2017, to May 31, 2018, in Georgia. Discussed equitable division, child support, child custody, and enforcement of support by analyzing cases such as Flesch v. Flesch, Noble v. Noble, and Hardin v. Hardin.
Laura Ann Raymond, Sibling Consortium: Recognizing the Right to Recovery in Connecticut, 17 Conn. Pub. Int. L.J. 337 (2018). Analyzed the origins of sibling consortium and the arguments for and against recognition of sibling consortium, and ultimately concluded that Connecticut should allow recovery for mourning brothers and sisters.
Rena Seidler & Margaret Ryznar, Recent Developments in Indiana Family Law: October 2016 to September 2017, 54 Ind. L. Rev. 1085 (2018). Discussed changes in the appellate courts concerning family law in the state of Indiana. The changes include property division, parenting time and visitation, child custody, child support, paternity and adoption, the termination of parental rights, and jurisdiction and procedure. Presented cases that show the significant legal theories behind the changes made by the courts.
Emily J. Stolzenberg, The New Family Freedom, 59 B.C. L. Rev. 1983 (2018). Described an emergent, libertarian vision of autonomy as property rights that also demands freedom from other family members.
Allison Anna Tait, Family Law, 53 U. Rich. L. Rev. 81 (2018). Examines Virginia’s family law matters, including some antiquated laws in the realms of same-sex marriage, bifurcation in divorce, and equitable distribution.
Rishita Apsani, Note, Are Women’s Spaces Transgender Spaces? Single-Sex Domestic Violence Shelters, Transgender Inclusion, and the Equal Protection Clause, 106 Cal. L. Rev. 1689 (2018). Asserted that when transgender women are victims of intimate partner violence, they are harshly discriminated against when seeking help. Discussed how the ways transgender women are prevented from going to women’s shelters could raise an equal protection claim in federal court and succeed. Outlined three ways that the judiciary might analyze such claim.
Ashley M. Blas, The Danger of Silence: How the Political Activities Prohibition Negatively Affects Nonprofit Domestic Violence Organizations, 49 U. Tol. L. Rev. 715 (2018). Discussed how the IRS’s ban on tax exemptions for political campaign advocacy by 501(c)(3) organizations hinders support for issues such as domestic violence. Argued that it negatively affects how such companies support an issue and how the Violence Against Women Act could affect this.
Aaron Edward Brown, This Time I’ll Be Bulletproof: Using ex parte Firearm Prohibitions to Combat Intimate-Partner Violence, 50 Colum. Hum. Rts. L. Rev. 159 (2019). Explained the correlation between gun violence and domestic violence and suggested a methodology for preventing gun violence using ex parte firearm prohibitions in conjunction with protective orders in domestic violence situations.
Andrew C. Budzinski, Reforming Service of Process: An Access to Justice Framework, 90 U. Colo. L. Rev. 267 (2019). Explained that service of process rules often serve as a hindrance for indigent and pro se parties. Utilized an access-to-justice framework to argue that legislatures should update service of process rules to better serve pro se and indigent clients. Explained that serving a party is particularly difficult in domestic violence cases where one party does not know the other’s location.
Nick Butto, Note, The Front and Back Ends of Domestic Violence Murder: An Exploration of the Avenues for Change and an Introduction of the Domestic Violence-Murder Doctrine, 107 Geo. L.J. 457 (2019). Raised concerns with only charging abusers in domestic violence situations with second-degree murder instead of first-degree murder. Explained that charging abusers with first-degree murder requires proof of premeditation. Noted that Britny’s Law in North Carolina addressed these concerns by giving prosecutors the power to charge defendants with first-degree murder when there has been a pattern of domestic abuse.
A. Rachel Camp, Pursuing Accountability for Perpetrators of Intimate Partner Violence: The Peril (and Utility?) of Shame, 98 B.U. L. Rev. 1677 (2018). Discussed the concepts of “shaming” perpetrators of intimate partner violence and how it has become accepted by some in society as a way to ensure accountability. Noted that the shame of a perpetrator may be expressed through further violence, may have extreme social and economic repercussions, and may make some feel like shaming is acceptable for other crimes or perceived wrongs.
David Ernesto Chavez, From Equitable to Equal, and Then More Equal: How Nevada Divorce Law Can Help Domestic Violence Survivors, 19 Nev. L.J. 293 (2018). Advocated for a new Nevada bill that provides a more direct path to compensation for survivors of domestic violence that are seeking a divorce. Specifically, the bill created a rebuttable presumption that a domestic violence survivor in a divorce action is entitled to economic and noneconomic damages resulting from the domestic violence. Additionally, the bill would authorize district courts to compensate survivors directly for a married couple’s marital property.
Hannah Clayshulte, Comment, How Payday Loans Affect Domestic Violence Survivors and What the New CFPB Regulations Will Mean for Survivors in Wisconsin, 33 Wis. J.L. Gender & Soc’y 149 (2018). Explained that domestic violence survivors often depend on payday lenders to establish financial independence from their abusers. Noted that survivors are often still establishing financial independence when lenders come to collect. Discussed how the Consumer Federal Protection Bureau made it a requirement for lenders to ensure survivors are able to pay back the loan. Argued that further legislation is necessary to protect survivors adequately—such as laws that set interest-rate caps or extend repayment periods.
Courtney Cross, Criminalizing Battered Mothers, 2018 Utah L. Rev. 259 (2018). Argued large-scale systematic change is necessary to enhance the independence of domestic violence survivors. In particular, parental kidnapping laws need to be amended because survivors are caught in a bind in which states pressure survivors to leave abusive relationships, but also punish them for the manner in which they do.
Monette M. Davis, The Repugnant Effect of Reckless Conduct and Domestic Violence: Voisine v. United States and the Restriction of Firearms, 45 S.U. L. Rev. 331 (2018). Applied Voisine v. United States to conclude that a person who acts with reckless conduct in a domestic violence crime should be given the same consequences as someone who acts intentionally.
Deborah Epstein & Lisa A. Goodman, Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences, 167 U. Pa. L. Rev. 399 (2019). Argued that women need to come forward in massive numbers to tell their stories and the ways in which their experiences have been dismissed in order for society to be forced to see this distinct form of gender-based harm. Concludes that once this is done, we can enact a body of institutional remedies for women, ensuring that they need not fear the legal system.
Kristen L. Grossman, Note, What Will It Take? Examining the Use of Preliminary Hearing Testimony Where Victims Are Unavailable Due to Mental Illness Stemming from Domestic Violence and Sexual Assault, 39 N. Ill. U. L. Rev. 140 (2018). Addressed the question of whether victims of domestic violence and sexual assault can be “unavailable” to testify at trial owing to mental health issues (such as post-traumatic stress disorder). Contended that courts should hear the victim’s testimony preliminarily. Noted that some states recognize unavailability of the victim, but others find that it violates the Sixth Amendment right to face an accuser. Argued that unavailability does not violate the Sixth Amendment if the use of a preliminary hearing testimony has indicia of reliability.
Ashley Hahn, Toward a Uniform Domestic Violence Civil Protection Order Law, 48 Seton Hall L. Rev. 897 (2018). Examined the need for state enactment of a uniform Domestic Violence Civil Protection Order law across the U.S.
Reagan Hinton, Domestic Violence: How Ghana and Uganda Can Become Leaders in Africa, 4 J. Global Just. & Pub. Pol’y 105 (2018). Compared the tactics taken in Uganda and Ghana against domestic violence and recommends Uganda improve its approach in order to defeat domestic violence.
John T. Holden & Joanna Wall Tweedie, The National Football League: Action versus Activism, 97 Or. L. Rev. 397 (2019). Compared the NFL’s activism versus action against domestic violence abusers. With the NFL’s “no more” campaign, the NFL claimed to create a system where first-time domestic abusers receive a six-game suspension and second-time offenders receive a one-year expulsion. However, after an investigation, there is little evidence to show that the NFL has followed through with the “no more” campaign. On the contrary, the NFL has taken few actions to eliminate domestic abusers from its player ranks.
Colin P. Holloway & Richard L. Wiener, Abuse History and Culpability Judgments: Implications for Battered Spouse Syndrome, 24 Psych. Pub. Pol. & L. 279 (2018). Explored battered spouse syndrome and its use as a defense in the criminal justice system.
Claire Houston, The Trouble with Feminist Advocacy Around Child Victims of Domestic Violence, 39 Women’s Rts. L. Rep. 85 (2018). Discussed the differing legal responses to child maltreatment and domestic violence and the feminist response. Discussed the initial feminist roles of advocacy in child domestic violence situations and how that role shifted as a result of statistics showing that women maltreated children more than men did. Argued that this approach essentializes battered women as “good,” or more deserving of help than children.
Faith Kjelstrup, The Use of the Medical Diagnosis or Treatment Exception to Hearsay in Domestic Violence Cases: The Admissibility of Testimony from Medical Providers About Statements Regarding the Identity of an Alleged Perpetrator Under Nebraska Rule of Evidence 803(3), 51 Creighton L. Rev. 603 (2018). Examined how the state uses the medical diagnosis and treatment exception to hearsay to prove a victim is guilty even if the victim refuses to testify. Explained that recent Nebraska case law has split on whether the identity of a perpetrator should be admitted under Rule 803(3) and provided support as to why it should be admissible. Suggested that the Nebraska Supreme Court adopt this line of reasoning so to further protect victims in domestic violence situations.
Alyssa Lott, Illegal Contact: Tackling Domestic Violence in the NFL, 25 Widener L. Rev. 115 (2019). Addressed the prevalence of domestic violence issues involving NFL players. Specifically, discussed the amendment of the league’s Personal Conduct Policy following the arrest of Baltimore Ravens football player Ray Rice, the league’s establishment of its Conduct Committee, and the indictment of Washington Redskins running back Adrian Peterson for allegedly hitting his son.
Michael D. Moberly, The Workplace Injunction: An Emerging But Imperfect Weapon in the Fight Against Domestic Violence, 26 Am. U. J. Gender Soc. Pol’y & L. 831 (2018). Discussed the rise in workplace domestic violence. Explored several potential remedies and prevention strategies. Encouraged states to enact workplace-injunction statutes to incentivize employers to proactively deter workplace domestic violence.
Dayna Olson, Protecting Native Women from Violence: Fostering State-Tribal Relations and the Shortcomings of the Violence Against Women Act of 2013, 46 Hastings Const. L.Q. 821 (2019). Examined the various levels of violence that native women face on tribal reservations. Discussed the need for further legislation for the protection of native women and described how the Violence Against Women Act of 2013 provided a Special Criminal Jurisdiction for tribes when crimes concern domestic violence. Argued for enhancing tribal laws concerning domestic crimes.
Danielle Panizzi, A Victim of Domestic Violence a “Nuisance” to Society?: How Chronic Nuisance Ordinances in Municipalities Impact Victims of Domestic Violence, 39 Women’s Rts. L. Rep. 146 (2018). Discussed nuisance ordinances and their effect on those suffering from habitual domestic violence; federal guidelines under the Fair Housing Act that will add exceptions for domestic violence and why they may not be sufficient to solve the problem; and spending cuts proposed by the Trump administration and how they will jeopardize the minimal protections that already exist.
Jodie G. Roure, Immigrant Women, Domestic Violence, and Hurricanes Irma and Maria in Puerto Rico: Compounding the Violence for the Most Vulnerable, 20 Geo. J. Gender & L. 631 (2019). Discussed danger to women at home and issues impacting immigrant women and girls subjected to domestic violence. Concludes that Hurricane Maria severely damaged PR and leaves few resources for women to address the gender-based violence happening.
Kyle Semroc, “PFA” Record Expungement as a Tool for Settlement: Due Process and the Pennsylvania Protection from Abuse Act, 122 Dick. L. Rev. 939 (2018). Explained the procedure for filing for a protection order and the due process protections within each step. Discussed criminal versus civil expungement and case law relevant to expungement of civil records in regard to PFAs. Analyzed whether a PFA with no admission of abuse can be expunged from a defendant’s civil record.
Shivanjali A. Sewak, “Everyone Gets Their First DV Free”: Proposition 57’s Neglect of Domestic Violence, 123 Penn St. L. Rev. 277 (2018). Discussed California’s Proposition 57 and how it does not classify domestic violence as a “violent felony.” Examined how this will affect survivors of domestic violence due to early paroles of offenders and how it provides insufficient protection for those survivors.
Jane K. Stoever, Access to Safety and Justice: Service of Process in Domestic Violence Cases, 94 Wash. L. Rev. 333 (2019). Discussed how abused individuals must be able to access court protection in order to receive justice. Focused on achieving the legislative purpose of civil protection orders by making them available to abuse survivors who ask the courts for help. Argued service options must be expanded to help address differential treatment of domestic violence remedies.
Phillip Sylvester, Arming America’s Most Dangerous Abusers: How Domestic Violence Laws Have Failed the LGBTQIA Community, 11 Drexel L. Rev. 783 (2019). Examined North Carolina’s domestic violence statutes in the context of same-sex marriages. Argued that North Carolina’s domestic violence statutes do not award the same protection to same-sex couples as opposite-sex couples. Argued to make equally accessible resources to same-sex couples that experience domestic violence.
Theresa A. Vogel, Critiquing Matter of A-B-: An Uncertain Future in Asylum Proceedings for Women Fleeing Intimate Partner Violence, 52 U. Mich. J.L. Reform 343 (2019). Discussed the Matter of A-B-, which falls into the misconception that intimate partner violence is a personal matter outside the scope of asylum protections. Further argued that a central part of fixing the intimate partner violence in the United States is to reform the way the United States handles women who seek asylum involving intimate partner violence.
Mac Walton, Bail Reform and Intimate Partner Violence in Maine, 71 Me. L. Rev. 139 (2018). Discussed bail-reform movements that aim to reduce pretrial detention rates. Explained that Maine has not enacted such policies, but courts utilize a risk assessment when making bail decisions in cases of intimate-partner violence. Maintained that the risk-assessment practices of Kentucky and New Jersey should inform Maine’s current bail system and provide models for bail reform.
Jennifer Wriggins, Domestic Violence and Gender Equality: Recognition, Remedy, and (Possible) Retrenchment, 49 U. Tol. L. Rev. 617 (2018). Discussed the Violence Against Women Act and how it has transformed the way that domestic violence was seen and treated. Explained, however, that the Act seems to protect African American women less than other women, and how women of color often feel less comfortable reporting domestic violence crimes because of some of these laws in place.
Eric Chung, The Child Welfare and Education Gap, 36 Yale L. & Pol’y Rev. 365 (2018). Asserted that child welfare laws and education laws do not work in tandem, are embodied in separate statutes, and are administered by different agencies. Proposed a reconceptualization and unification of child welfare and education laws and policies to better serve socioeconomically disadvantaged children and their families.
Richard D. Marsico, From Rowley to Endrew F.: The Evolution of a Free Appropriate Public Education for Children with Disabilities, 63 N.Y.L. Sch. L. Rev. 29 (2018–2019). Discussed Endrew F.’s impact by tracing the evolution of free appropriate public education (FAPE) standards in the courts and answers three questions: Endrew F.’s FAPE standard replaced with Rowley; it strengthened the FAPE standard in a majority of circuits; and it opens the door for courts to construe the Individuals with Disabilities Education Act (IDEA) as requiring educational opportunity.
Judith A. Reisman & Mary E. McAlister, Materials Deemed Harmful to Minors Are Welcomed into Classrooms and Libraries via Educational “Obscenity Exemptions”, 12 Liberty U. L. Rev. 517 (2018). Explored questions regarding the sexual exploitation of children by pointing to the root of the sexual rights agenda plaguing our society and our children.
Ryan Class, You Can Go Home Again: Achieving the Goals of HUD’s Reverse Mortgage Program While Protecting Non-borrower Spouses and Other Heirs, 37 Rev. Banking & Fin. L. 413 (2017-2018). Discussed reverse mortgages and how the Home Equity Conversion Mortgages became a problem for nonborrower surviving spouses. Discussed the Trigger Inapplicability Decision (TID) and the Mortgagee Optional Election (MOE) that were designed to reverse the mortgage crisis.
Betsy J. Grey, Aging in the 21st Century: Using Neuroscience to Assess Competency in Guardianships, 4 Wis. L. Rev. 735 (2018). Discussed how biomarkers that are used to show the susceptibility of Alzheimer’s Disease could possibly help determine a person’s competency for guardianship. Examined the process and its promise but acknowledged the procedural hurdles that have to be dealt with before it can be used in court.
Nina A. Kohn, For Love and Affection: Elder Care and the Law’s Denial of Intra-family Contracts, 54 Harv. C.R.-C.L. L. Rev. 211 (2019). Assessed how courts and other legal actors treat intra-family member agreements to compensate family members for caring for their elderly members of the family. Argued that the legal system has long ignored the monetary value of family members caring for the elderly, which is in contrast with the high cost of elder care that can be bought on the open market.
Eliana J. Theodorou, Supported Decision-Making in the Lone-Star State, 93 N.Y.U. L. Rev. 973 (2018). Discussed how supported decision-making has gained traction in states such as Texas, where support from the “Texas Self-Determination State Policy Team” helped move the program forward.
Estates and Trusts
Victoria J. Haneman, Everybody Dies. Or, a Consideration of Simultaneous Death Statutes and the Struggles of the Self Represented, 32 Notre Dame J.L. Ethics & Pub. Pol’y 221 (2018). Explored the idea of revising probate statutes in order to protect the self-represented from obvious pitfalls. Focused on an obvious flaw that exists in states that allow holographic wills and protection of laypersons from simultaneous or closely proximate death scenarios.
Allison Strube Learned, Illegitimate Succession: Vestigial Discrimination in Wyoming’s Rules of Intestate Descent, 19 Wyo. L. Rev. 119 (2019). Examined how most state legislatures have responded to U.S. Supreme Court decisions by eliminating statutory distinctions between marital and nonmarital children, including the stigmatizing classification of “illegitimacy,” and argued that Wyoming should repeal § 2-4-102, which continues to label nonmarital children as “illegitimate.”
Gregg Strock, Comment, A Bastard by Any Other Name: A Requiem for the End of Disproportionate Treatment Toward Out of Wedlock Children in Florida’s Probate System, 13 FIU L. Rev. 127 (2018). Discussed the history of paternity adjudications in Florida probate court. Considered the historical discriminatory effects of legitimacy statutes and considered what effect technological advances in DNA testing should have on legitimacy policy. Analyzed the Third District’s holding in Rose v. Sonson. Analyzed the rules of construction regarding retroactivity of statutes in Florida. Compared the holding and statutes to other states’ policies on time limits to adjudicating paternity. Suggested ways to make the rules less restrictive and more equitable.
Phyllis C. Taite, Freedom of Disposition v. Duty of Support: What’s a Child Worth, 2019 Wis. L. Rev. 325 (2019). Discussed the clash between a deceased person’s Last Will and Testament and the deceased person’s duty to financially support a child or children. Argued that a child’s financial needs should trump the testamentary wishes of the deceased. Examined the historical information about civil and common law systems as well as a parent’s financial duty to support his or her minor children during their lifetime. Suggested ways to balance the freedom of disposition with the duty of support and the conclusion that follows.
Family Law Practice
Maria Cristina González, Family Law: Above and Beyond the Call of Duty, 14 Intercultural Hum. Rts. L. Rev. 263 (2019). Examined the spiritual health of family law practitioners. Argued for family law practitioners to incorporate spiritual and mindful tactics into their daily practice in order to heighten awareness and promote “success and rewards” for clients, while also nurturing the spiritual health of legal practitioners.
Kelsey Marie Pittman, The Divergence of Binary Sex and the Transgender, 12 Liberty U. L. Rev. 761 (2018). Discussed the legal definition of sex and argues that the dissenting opinion of Judge Niemeyer in Grimm v. Gloucester was correct in reasoning that the definition of sex should remain the physiological distinction between males and females.
Noya Rimalt, The Maternal Dilemma, 103 Cornell L. Rev. 977 (2018). Analyzed modern parental policies that undermine the gendered division of carework. While families are striving toward gender-neutral parenting reform, many of the duties are still falling on the mother. Suggested a reevaluation of current policy solutions that focus primarily on recruiting men to engage in caretaking at home.
Hila Shamir, Tsilly Dagan & Ayelet Carmeli, Questioning Market Aversion in Gender Equality Strategies: Designing Legal Mechanisms for the Promotion of Gender Equality in the Family and the Market, 27 Cornell J.L. & Pub. Pol’y 717 (2018). Focused on designing welfare and tax mechanisms for the promotion of women in the family and the market.
Michele N. Struffolino, The Devil You Don’t Know: Implicit Bias Keeps Women in Their Place, 38 Pace L. Rev. 260 (2018). Focused on the impact of implicit bias in actions between women and men in family court. Explored the existence of gender bias against women and the justifications as to why it is still present. Used existing explicit and implicit bias against women research to create techniques to eliminate the barrier bias creates for women in family matters.
Breanna R. Wexler, Let’s Call It What It Is: Sexual Orientation Discrimination Is Sex Discrimination Under Title VII, 63 St. Louis U. L.J. 133 (2018). Discussed discrepancies in the court’s decision on whether sexual orientation discrimination should be afforded the same protections under Title VII. Argued that the Supreme Court should eventually intervene and rule that all sexual orientation discrimination is protected under Title VII in order to ensure fairness for employees across the country.
Karen S. Baker, Is the United States Safely Repatriating Unaccompanied Children: Law, Policy, and Return to Guatemala, 73 U. Miami L. Rev. 781 (2019). Examined U.S. law and policy governing the repatriation of unaccompanied children. Evaluated whether known procedures and policies comport with applicable law. Discussed the fate that children being returned to Guatemala will face once they are returned there and proposes to bring current practice into conformity with laws and today’s social norms.
Lenni B. Benson, Finding the Forum That Fits: Child Immigrants and Fair Process, 23 Roger Williams U. L. Rev. 419 (2018). Argued the legal system must incorporate a forum designed for immigration cases, specifically for the youth. Explained the process fails to follow practices that are routine in child custody or juvenile cases within the U.S. For example, children must complete deportation adjudication without appointed counsel, and with burdens blocking access to fundamental protections.
Kristina M. Campbell, Dreamers Deferred: The Broken Promise of Immigration Reform in the Obama Years, 25 Tex. Hispanic J.L. & Pol’y 1 (2018). Discussed the downfalls of Obama’s decision to enact DACA via executive action. Examined the Obama administration’s aggressive immigration enforcement that gave way to what we know as the family detention program.
Aleksandar Cuic, The Trump Administration and Immigration Judges: Decreased Judicial Independence or Increased Efficiency?, 51 Case W. Res. J. Int’l L. 155 (2019). Discussed how the Trump administration has changed asylum and immigration policies, and how these affect judicial independence.
Sarah J. Diaz, Failing the Refugee Child: Gaps in the Refugee Convention Relating to Children, 20 Geo. J. Gender & L. 605 (2019). Examined how the Refugee Convention failed to properly define the word “refugee,” and that the substantial law for that definition creates problems in applying “refugee” to children. This gap does not protect children from adverse government policies on refugees and immigration.
Lorena Espino-Piepp, The Violence Against Women Act, Implicit Bias, and Judicial Training, 24 Cardozo J. Equal Rts. & Soc. Just. 347 (2018). Argued that the Violence Against Women Act, while laudable, does not offer the same strength of protection to immigrant women, specifically Latina immigrant women; that implicit bias in the court systems can influence the relief offered for battered immigrant women and the protections offered by the court; and that cultural competencies and trainings are integral to address these inconsistencies and provide better and more consistent relief for immigrant battered women.
Samantha Gallardo, How Strong Is Your American Blood?, 23 Suffolk. J. Trial & App. Advoc. 265 (2018). Examined the Immigration and Nationality Act. Explored the Act’s distinction between children born abroad to married couples and unmarried couples when determining birthright citizenship. Suggested that all children seeking birthright citizenship should be treated the same, regardless of the marital status of their parents or the sex of the parent who is a U.S. citizen.
Amanda Glenz, Bringas-Rodriguez v. Sessions: The Ninth Circuit Brings Sense Back to Evidentiary Requirements of Asylum Applications for Gay Children, 28 Tul. J.L. Sexuality 89 (2019). Discussed the United States’ standardized approach to refugee and asylum law and its implications with Bringas-Rodriguez v. Sessions. Discussed the Ninth Circuit’s decision that gay children do not have a heightened evidentiary standard to prove that their government was unable or unwilling to protect them, overruling prior precedent.
Deborah S. Gonzalez, Sky Is the Limit: Protecting Unaccompanied Minors by Not Subjecting Them to Numerical Limitations, 49 St. Mary’s L.J. 555 (2018). Discussed the two forms of relief for child immigrants and differentiated Special Immigrant Juvenile Status (SIJS) from employment-based visa applicants.
Andrew Leon Hanna, A Constitutional Right to Appointed Counsel for the Children of America’s Refugee Crisis, 54 Harv. C.R.-C.L. L. Rev. 257 (2019). Discussed the immigrant children who have traveled into the United States and who have not been appointed a lawyer to defend them in their deportation hearings. Argued this violates these children’s due process right to a fair trial.
Lindsay M. Harris, Contemporary Family Detention and Legal Advocacy, 21 Harv. Latinx L. Rev. 135 (2018). Explained how legal representation is needed at every level to aid women and children detained as a result of the new laws put in place by the Trump administration. Concluded by encouraging attorneys and nonattorneys alike to help with the crisis at the border.
Lindsay M. Harris, Learning in “Baby Jail”: Lessons from Law Student Engagement in Family Detention Centers, 25 Clinical L. Rev. 155 (2018). Outlined tips for future law students who wish to engage and help in immigrant detention centers. Provides lessons on crisis lawyering on a broader level.
Holland L. Hauenstein, Unwitting and Unwelcome in Their Own Homes: Remedying the Coverage Gap in the Child Citizenship Act of 2000, 104 Iowa L. Rev. 2123 (2019). Discussed how the Child Citizenship Act of 2000 leaves many children who were adopted from outside of the United States of America with far less rights than children born in the United States. Highlighted the issue that tens of thousands of adopted children are now considered deportable noncitizens. Argued that the Child Citizenship Act cannot withstand equal protection scrutiny.
Kelly McGee, What’s So Exceptional About Immigration and Family Law Exceptionalism? An Analysis of Canonical Family and Immigration Law as Reflective of American Nationalism, 20 Geo. J. Gender & L. 699 (2019). Examined how Homeland Security, ICE, and Child Protective Services are connected and interwoven through a story about a woman being separated from her infant child, whom she gave birth to in the United States.
Laurie A. Minter, Victimization or Deportation? Addressing the Unsettling Consequences of the U Visa Requirements on Domestic Violence Victims, 41 T. Jefferson L. Rev. 61 (2018). Analyzed the consequences of the U visa requirements for domestic violence victims in the United States. Discussed the case of an undocumented immigrant who suffered more than a decade of abuse perpetrated by her boyfriend. Urged Congress to amend the U visa requirements to exempt domestic violence victims in receiving law enforcement certification.
Natalie Nanasi, The U Visa’s Failed Promise for Survivors of Domestic Violence, 29 Yale J.L. & Feminism 273 (2018). Explained that marginalization of immigrant victims’ interests should have been foreseen. Argued that the U visa is damaging for immigrant domestic violence survivors due to language barriers, complicated relationships with police, familial ties, and economic constraints. Proposed solutions to the U visa certification requirements to stop ineffective assistance for survivors of domestic violence.
Christina L. Pollard, Here Come Many More Mail-Order Brides: Why IMBRA Fails Women Escaping the Russian Federation, 46 Cap. U. L. Rev. 609 (2018). Explained that Russian mail-order brides seek an opportunity for a better life in the United States and a new adventure. Noted that members of Congress have pushed for reform on human-trafficking grounds. Discussed the resulting International Marriage Broker Regulation Act (IMBRA), which amends restrictions on family-based and marriage-based immigration. Argued that if gender conditions in Russia and other supply countries are not addressed, IMBRA will continue to fall short of protecting and informing women in the international marriage-broker industry.
Stephanie Rock, Comment, One Step Forward and Two Steps Back: The Victory and Setback Issued by the Supreme Court of the United States in Morales-Santana, 33 Wis. J.L. Gender & Soc’y 177 (2018). In Sessions v. Morales-Santana, the Supreme Court found that there is an equal protection violation in eliminating the gender-based distinction of 8 U.S.C. §§ 1401 and 1409 (naturalization and nationalization). Explained that the Court eliminated a shorter waiting period for mothers and extended the time requirement for fathers. Maintained that eliminating the exception represents a step backwards and poses further implications that may arise later.
Richard F. Storrow, Unaccompanied Minors at the U.S.-Mexico Border: The Shifting Sands of Special Immigrant Juvenile Status, 33 Geo. Immigr. L.J. 1 (2018). Explained the history and legislative intent of Special Immigrant Juvenile Status (SIJS) for undocumented minors abandoned or neglected by their parents; warned of the unstable future of the classification due to administrative and judicial resistance to this pathway to citizenship.
Rick Su, Making Room for Children: A Response to Professor Estin on Immigration and Child Welfare, 17 Wash. U. Global Stud. L. Rev. 633 (2018). Suggested that immigration law reform requires a change in the societal perception of immigration.
John Thomas & Dorothy E. Stubbe, Psychiatric, Epigenetic, Legal, and Public Health Challenges Facing Refugee Children: An Integrated Approach, 36 Quinnipiac L. Rev. 635 (2018). Explained the legal challenges facing refugee children in the world. Compared international, European, and U.S. refugee laws, specifically discussing the U.S. travel bans and the Supreme Court’s rulings on it. Discussed the mental health and legal challenges that refugee children face as a result of legal response to the refugee crisis.
Indian Child Welfare Act
Elizabeth MacLachlan, Note, Tensions Underlying the Indian Child Welfare Act: Tribal Jurisdiction over Traditional State Court Family Law Matters, 2018 BYU L. Rev. 455 (2018). Examined the lack of state acceptance of the Indian Child Welfare Act. Argued that this lack of acceptance stems primarily from states seeking to maintain control over child-custody matters that have traditionally been left to state courts to decide.
Neoshia R. Roemer, Finding Harmony or Swimming in the Void: The Unavoidable Conflict Between the Interstate Compact on the Placement of Children and the Indian Child Welfare Act, 94 N.D. L. Rev. 149 (2019). Surveyed the Interstate Compact on the Placement of Children’s provisions and discussed the friction that exists between it and the Indian Child Welfare Act. Argued that because the Interstate Compact on the Placement of Children is a state administrative procedure that may alter the status of child welfare proceedings, the Indian Child Welfare Act should preempt the Compact where it is applicable.
Carlie Smith, Establishing Paternity Under the Indian Child Welfare Act, 2018 BYU L. Rev. 1451 (2018). Discussed the Utah Supreme Court decision in In re Adoption of B.B. and how it established a federal reasonableness standard for establishing paternity. Argued the new standard contrasts with state-law approach and can cause future issues with court decisions down the line.
Jenna Breslin, Iraqi Women as Legally Vulnerable Subjects: Applying Gender-Mainstreaming and Vulnerability Theory in the Post-Conflict Iraqi State, 33 Emory Int’l L. Rev. 259 (2019). Discussed U.N. Security Council Resolution 1325, which aimed to incorporate more women into policy, government, and police forces. Asserted that, however, women did not experience the expected gender equality that was the aim of Resolution 1325. Noted that this resolution actually left Iraqi women more vulnerable to gender-based violence. Concluded by proposing an alternative to Resolution 1325.
Paulina Garcia-Del Moral & Pamela Neumann, The Making and Unmaking of Feminicidio/Femicidio Laws in Mexico and Nicaragua, 53 Law & Soc’y Rev. 452 (2019). Discussed the law-making related to the killing of women, which resulted in the criminalization of feminicide in Mexico and Nicaragua. Demonstrated that states’ decisions to enact legislation against gender-based violence doesn’t occur just because they are invested in international legitimacy.
Mackenzie Glaze, Historical Determinism and Women’s Rights in Sharia Law, 50 Case W. Res. J. Int’l L. 349 (2018). Traced three countries’ histories in order to explore what led each country to develop very different beliefs on the rights of women under Sharia law.
Courtney Hillebrecht, Alexandra Huneeus & Sandra Borda, The Judicialization of Peace, 59 Harv. Int’l L.J. 279 (2018). Spoke directly to those voicing concern over the increased involvement of international courts in national politics in general, and in peace and reconciliation. Explained how international law comes to influence domestic politics, and how domestic politics shapes international law.
Lynne Marie Kohm & Ashley Michelle Williams, The Tragic Tapestry of Father Absence and National Strength, 53 Law & Soc’y Rev. 588 (2019). Examined whether the lack of fathers in a home can affect generations, and ultimately affect the nation as a whole. Compared the United States to the European nation of Belarus, a country that saw the mass execution of 200,000 to 1.5 million men.
Diego Lopez, The Time Is Now to Ratify the Convention on the Rights of a Child, 52 U.S.F. L. Rev. 477 (2018). Discussed important provisions of the convention as well as differences between the laws of the U.S and the Convention, specifically abortion and juvenile justice.
Emily R. Nyren, Inadequate Protections and New Risks for LGBT Victims of Intimate Partner Violence Seeking Asylum in the United States, 33 Temp. Int’l & Comp. L.J. 49 (2019). Examined the history of asylum law, with a deeper examination of LGBT asylum seekers. Outlined potential remedies that could be implemented to provide better protections for those LGBT individuals seeking asylum from intimate partner violence.
Jeffrey Schoenblum, U.S. Conflict of Laws Involving International Estates and Marital Property: A Critical Analysis of Estate of Charania v. Shulman, 103 Iowa L. Rev. 2119 (2018). Discussed cross-border marital-property rights and succession in the United States, then discussed the mutability between foreign countries. Explored the decision of the U.S. Court of Appeals for the First Circuit in Estate of Charania v. Shulman, which addressed several international marital property choice-of-law issues.
Kristen Stilt, Salma Waheedi & Swathi Gandhavadi Griffin, The Ambitions of Muslim Family Law Reform, 41 Harv. J.L. & Gender 301 (2018). Evaluated family law reform in the Muslim world and the accompanying arguments in the time since 1917. Analyzed the changes in marital norms, including things like polygamy and access for divorce among Muslim women, through the lens of the successes and developments in the field of family law in the Muslim community.
Jeremy M. Tsuchitani-Watson, Living Illegal: Being LGBT in Russia, 2 Int’l Comp., Pol’y & Ethics L. Rev. 713 (2019). Exposed the gross human rights violations committed in Russia against people who identify as LGBTQ including government-sponsored propaganda, concentration camps for gay men in Chechnya, and other widespread oppression; proposed a new way forward.
Shritha Vasudevan, A Gendered Refutation of Epiphenomenal Norms Through the Median Voter: A Case Study of India’s CEDAW Compliance, 33 Emory Int’l L. Rev. 223 (2019). Discussed the reasoning behind India’s Declaration to CEDAW and examined traditional, cultural attitudes as being responsible for gender-based violence.
Shelby L. Wade, “Living Together” or Living Apart from Religious Freedoms? The European Court of Human Right’s Concept of “Living Together” and Its Impact on Religious Freedom, 50 Case W. Res. J. Int’l L. 411 (2018). Discussed the past precedential balancing test the European Court of Human Rights followed prior to S.A.S. v. France, and why it is favored against the new “living together” justification. Examined the potential impacts on personal freedoms the new test may cause, particularly in reference to new face-covering garment cases that may appear before the European Court of Human Rights.
Elizabeth J. Baia, Note, Akin to Madmen: A Queer Critique of the Gay Rights Cases, 104 Va. L. Rev. 1021 (2018). Asserted that recent LGBTQ legal victories stemmed from emphasizing common values with straight people by assimilationist advocates. Argued that the reliance on these values to justify extending rights to LGBTQ people runs the risk of making it more difficult to extend protection in areas where these values are absent.
Carlos A. Ball, Against LGBT Exceptionalism in Religious Exemptions from Antidiscrimination Obligations, 31 J. Civ. Rts. & Econ. Dev. 233 (2018). Argued for the rejection of LGBT rights exceptionalism, including that which is applicable to marriage. Stated when it comes to religious exemptions from antidiscrimination laws, the burden should be on proponents to establish why exceptionalism is required.
Robert C. Blitt, The Organization of Islamic Cooperation’s (OIC) Response to Sexual Orientation and Gender Identity Rights: A Challenge to Equality and Nondiscrimination Under International Law, 28 Transnat’l L. & Contemp. Probs. 89 (2018). Explored the Organization of Islamic Cooperation’s (OIC) peculiar understanding of international nondiscrimination and equality norms by considering how it engages with sexual orientation and gender identity (SOGI) rights. Considered how other core components of the OIC’s human rights platform and accompanying rationales manifest hostility even to the slightest hint of SOGI rights recognition.
Michael V. Caracappa, Title VII and the Etiologies of Homosexual Attraction: How the Distinction Between Sex and Sexual Orientation Discrimination Vanished, 42 Seton Hall Legis. J. 337 (2018). Discussed the history and past applications of the Civil Rights Act’s term “sex” to demonstrate both the growing impracticability and speciousness of maintaining the exclusion of claims based on sexual orientation.
Chris Chung, Baking a Cake: How to Draw the Line Between Protected Expressive Conduct and Something You Do, 32 Notre Dame J.L. Ethics & Pub. Pol’y 377 (2018). Evaluated the two tests used to determine expressive conduct, and how the tests’ inconsistent application has led to an underdeveloped threshold in the law.
Connor Cory, The LGBTQ Asylum Seeker: Particular Social Groups and Authentic Queer Identities, 20 Geo. J. Gender & L. 577 (2019). Argued that immigration practitioners who ascribe to a queer worldview will be better equipped to offer their LGBTQ clients control over their identity and narrative.
Christiana Desrosiers, The Consideration of Male Victims of Sexual Violence as a Subset of the Particular Social Group “Homosexual” in Adjudicating Asylum Claims, 30 Pace Int’l L. Rev. 279 (2018). Analyzed difficulties that African male victims of sexual violence experience when seeking asylum and the lack of attention they receive. Recommended male victims be able to seek asylum because of lack of medical care in their countries on account of homosexual status.
David Fontana & Naomi Schoenbaum, Unsexing Pregnancy, 119 Colum. L. Rev. 309 (2019). Argued that the nine months of pregnancy encompass responsibilities that have nothing to do with the physicality of being pregnant, which many expectant fathers may be affected by. However, the laws surrounding pregnancy assume that pregnancy is exclusively for women. Asserted that sex equality should be the goal of pregnancy laws, which will pave the way for pregnancy equality for lesbian, gay, and transgender parents.
Jose Gabilondo, Holy Gender! Promoting Free Exercise of Gender by Discernment Without Establishing Binary Sex or Compulsory Fluidity, 16 Seattle J. for Soc. Just. 659 (2018). Discussed transgender rights, such as using the proper pronouns and ending the bathroom wars.
Leslie C. Griffin, Religious Freedom, Human Rights, and Peaceful Coexistence, 50 Loy. U. Chi. L.J. 77 (2018). Described the ministerial exception, which gives religious organizations the right to dismiss many employment discrimination lawsuits brought against them. Studied women’s right to contraceptive access, which has long been opposed by the Catholic hierarchy, and where employers have earned a legal right not to offer women contraceptive insurance. Discussed LGBTQ rights to marriage, which has received constant opposition from the church, even after the Supreme Court legalized it.
P. J. Henry & Russell Steiger, U.S. Cities with Greater Gender Equality Have More Progressive Sexual Orientation Laws and Services, 25 Psych. Pub. Pol’y & L. 15 (2019). Discussed findings from a survey of 386 cities in the United States correlating gender equality with progressiveness of sexual orientation laws and programs. Examined the relationship between sex discrimination and sexual orientation discrimination.
Raelynn J. Hillhouse, Reframing the Argument: Sexual Orientation Discrimination as Sex Discrimination Under Equal Protection, 20 Geo. J. Gender & L. 49 (2018). Provided insight to how courts are treating sexual orientation; challenged scholarly notions of how LGBTQ social justice litigation should be approached; and offered a solution to the ambiguity in how sexual orientation should be treated under the Equal Protection Clause.
Samone Ijoma, False Promises of Protection: Black Women, Trans People, & the Struggle for Visibility as Victims of Intimate Partner and Gendered Violence, 18 U. Md. L.J. Race, Religion, Gender & Class 255 (2018). Explores how black women and trans people of color who use deadly force against their abusers may face severe repercussions because certain gun laws provide them with false hope within the system. Concluded that there needs to be more representation of black women and trans people of color in law enforcement and there is a need to hold white people accountable when perpetuating stereotypes and racist acts.
Emily Maxim Lamm & Michael Greenberg, Bye, Bye, Binary: Updating Birth Certificates to Transcend the Binary of Sex, 28 Tul. J.L. & Sexuality 1 (2019). Discussed the importance of the birth certificate and its implications with the binary sex ideal—preferably its removal. Discussed how states go about sex change laws. Discussed the “Gender Rights Movement” and sought to facilitate the improvement of gender dynamics within the United States. Discussed “Gender X” as the universal gender marker until the individual exercises their right to choose a gender identity for themselves.
Jamie Langowski et al., Transcending Prejudice: Gender Identity and Expression-Based Discrimination in the Metro Boston Rental Housing Market, 29 Yale J.L. & Feminism 321 (2018). Described the history of the treatment of gender identity under civil rights laws, the statistical parameters of a study, and the results of that study, which showed that there is significant evidence of discrimination against transgender and gender-nonconforming people in the rental market in Boston. Argued policy makers should add gender identity as a protected class under antidiscrimination laws.
Jennifer L. Levi & Kevin M. Barry, Transgender Tropes & Constitutional Review, 37 Yale L. & Pol’y Rev. 589 (2019). Discussed how the Trump administration is rolling back policies that protect people who are transgender and the history of government discrimination against transgender people in excluding them from the U.S. military. Also discussed transgender people’s efforts to secure their rights under the Fourteenth Amendment.
Linda C. McClain, Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects, 67 Emory L.J. 1175 (2018). Reflected on Professor Fineman’s generative scholarship, observing shifts from dependency to vulnerability and from a gender lens to a skepticism about a focus on identities.
Linda C. McClain, “‘Male Chauvinism’ Is Under Attack from All Sides at Present”: Roberts v. United States Jaycees, Sex Discrimination, and the First Amendment, 87 Fordham L. Rev. 2385 (2019). Discussed the relationship between gender equality and the freedom of association, and the role of Jaycees in drawing the analogy between the harms of gender discrimination and sexual-orientation discrimination and on the limits of freedom of association in both of those contexts.
Laura Portuondo, The Overdue Case Against Sex-Segregated Bathrooms, 29 Yale J.L. & Feminism 465 (2018). Discussed tensions between transgender bathroom access and women’s rights by examining the historical, legal, and normative case against sex-segregated bathrooms.
Skailer R. Qvistgaard, Testosterone and Transgender Men: The Discriminatory Impact of Testosterone’s Schedule III Designation on Transgender Men Seeking Medical Care, 13 J. Health & Biomed. L. 289 (2018). Compared the social and legal benefits to the schedulization of testosterone to the discriminatory impact on transgender men. Discussed the cost and benefits of keeping testosterone as a Schedule III drug despite the discriminatory impact. Made policy suggestions based on other regulated controlled substances.
Alex Reed, Associational Discrimination Theory and Sexual Orientation-Based Employment Bias, 20 U. Pa. J. Bus. L. 731 (2018). Examined two routes to contest sexual orientation discrimination, associational sex discrimination challenges, and but-for and gender-stereotyping routes, and argued that the EEOC and private litigants should rely exclusively on the but-for and gender-stereotyping routes to prove that anti-LGB bias constitutes actional sex discrimination.
Katrina C. Rose, Reflections at the Silver Anniversary of the First Trans-inclusive Gay Rights Statute: Ruminations on the Law and Its History—and Why Both Should Be Defended in an Era of Anti-trans “Bathroom Bills,” 14 U. Mass. L. Rev. 70 (2019). Explored how Minnesota was the first state to enact a sexual orientation civil rights statute that also provides protections for transgender people. Argued that trans people all over the United States still suffer from the omissions of those who had claimed to advocate for trans rights but really advocated for trans absence.
Anton Sorkin, Make Law, Not War: Solving the Faith/Equality Crisis, 12 Liberty U. L. Rev. 663 (2018). Argued that the “non-distinction approach” is really a legal fiction that advances the interest of the court in using antidiscrimination laws for the sake of socially engineering an atmosphere that protects the LGBT community from dignitary harm.
Sarah Steadman, It’s Still Me: Safeguarding Vulnerable Transgender Elders, 30 Yale J.L. & Fem. 371 (2018). Discussed the current generation of transgender elders through demographic data, health status, and health care concerns; identified preventative legal measures that should be taken while a transgender person has capacity; and provided an overview of a typical guardianship proceeding for adults alleged to be incapacitated. Concluded that transgender elders are more vulnerable than the general elderly population because they are more likely to be disabled and face discrimination.
Nathan Wadlinger et al., Domestic Asset Tracing and Recovery of Hidden Assets and the Spoils of Financial Crime, 49 St. Mary’s L.J. 609 (2018). Defined the first two steps of the domestic asset recovery process, outlined the factors to consider when deciding whether to pursue asset recovery, detailed the parties to whom to trace assets, discussed information-gathering techniques, explained places where assets may be hidden, and outlined the means to freeze assets once they are located.
Christopher L. Williams, Injured Victims and Robbed Spouses: Reconciling Tort Awards with the Community Property System, 61 Ariz. L. Rev. 403 (2019). Analyzed a new rule that gives a tort victim access to a tortfeasor’s separate property and half of the community property, and explained how states have tried to characterize torts into a community or separate property obligation.
Katelyn Adams, Playing Favorites: Challenging Denials of U.S. Citizenship to Children Born Abroad to U.S. Same-Sex Parents, 107 Geo. L.J. 747 (2019). Argued that the State Department incorrectly interpreted the Immigration and Nationality Act (INA) in denying one twin his rightful citizenship because he was not biologically related to either of his same-sex parents, who were U.S. citizens. This was in part because the INA does not include same-sex married couples under the definition of “wedlock.” The background, definitions, governmental interests of this interpretation, and other families who have been affected are also discussed. Concluded that there is no legitimate basis for denying these children their rightful citizenship by birth simply because their parents are the same sex. Thus, the State Department’s interpretation of the INA should be amended to include same-sex married coupled under the definition of “wedlock.”
Albertina Antognini, Against Nonmarital Exceptionalism, 51 U.C. Davis L. Rev. (2018). Discussed how the law interacts with unmarried couples and distributing property when their relationship ends. Argued for caution against a full embrace of the law of nonmarriage by discussing how courts address the end of a nonmarital relationship between same-sex couples compared to different-sex couples, as well as alimony.
Sonu Bedi, An Illiberal Union, 26 Wm. & Mary Bill Rts. J. 1081 (2018). Explained how the institution of marriage is illiberal by using the philosophical theory of liberal neutrality. Examined how the seminal cases legalizing gay marriage illustrate the issues of why the state should not be involved in our intimate lives by stigmatizing those who don’t marry, threatening the separation of church and state, and permitting the criminalization of some sexual activity.
Alicia F. Blanchard, Comment, Going to the Clerk’s Office and We’re Not Going to Get Married, 13 U. Mass. L. Rev. 100 (2018). Noted that after Obergefell’s recognition of same-sex marriage, tension arose between freedom of religion and federally recognized rights. Explored the bounds of freedom of religion and analyzed the rights and protections associated with marriage. Suggested a balancing test for determining when government officials may exempt themselves from issuing marriage licenses based on their religious tenets.
Rachel Collier, Tightening the Knot: Relational Contracting for a Better Future, 56 Hous. L. Rev. 1113 (2019). Discussed prenuptial agreements. Focused on highlighting the benefit of prenuptial agreements and explained how they can be used in various ways to improve the longevity of a marriage.
Ashley D. Craythorne, Same-Sex Equality in Immigration Law: The Case for Birthright Citizenship for Foreign-Born Children of U.S. Citizens in Same-Sex Binational Unions, 97 Tex. L. Rev. 645 (2019). Argued that foreign-born children of U.S. citizens in a same-sex binational marriage are entitled to birthright citizenship, even if there is no biological relationship between the child and the U.S.-citizen parent.
Patrick F. Fagan & William L. Saunders, The Universal, Inalienable Right of the Child to the Marriage of His Biological Parents, 32 BYU J. Pub. L. 219 (2018). Argued that every child should have an inalienable right to the marriage of his or her biological parents and to the weekly worship of God.
Daniel J. Galvin Jr., There’s Nothing Rational About It: Heightened Scrutiny for Sexual Orientation Is Long Overdue, 25 Wm. & Mary J. Race, Gender, & Soc. Just. 405 (2019). Argued that sexual orientation meets the burden established by Supreme Court jurisprudence for suspect classification and should receive heightened scrutiny under Fourteenth Amendment equal protection analysis. Explained at length the history of gay rights and the history of equal protection laws.
Jonathan Grosso, Modus Vivendi: A Doctrinal Analysis of the Same-Sex Marriage vs. Religious Freedom Problem, 27 J. Transnat’l L. & Pol’y 173 (2017–2018). Discussed the debate of same-sex marriage versus religious freedom under international law and comparative theory. Proposed a legal solution that the judicial branch should use a check on the legislative branch to ensure that there are protections for religious freedom as well as the LGBT community.
Jason Harn, De Novo: Reviewing Tax Court Redressability Incongruities in Innocent Spouse Relief Sections 66(c) and 6015(f), 41 Seattle U. L. Rev. 1189 (2018). Explored the “Innocent Spouse” statutes that relieve an individual from joint or several liability for his or her spouse’s federal tax obligation. Analyzed the inconsistent standards of review the Tax Court applies to the two statutes.
Michael J. Higdon, Biological Citizenship and the Children of Same-Sex Marriage, 87 Geo. Wash. L. Rev. 124 (2019). Argued that the State Department’s policy of requiring a child born to a same-sex couple be both the legal and biological child of one of the American parents in order to be granted citizenship is unconstitutional. Argued the policy is discriminatory to both parents living abroad and same-sex couples and has further implications following the Obergefell decision.
Ivana Isailovic, Same Sex but Not the Same: Same-Sex Marriage in the United States and France and the Universalist Narrative, 66 Am. J. Comp. L. 267 (2018). Examined and compared the United States’ and France’s legalization of same-sex marriage.
Olivia Kinnear, Legal Relationships, Illegal Marriage: Examining Plural Marriage and a Legal Inconsistency, 28 Tul. J.L. & Sexuality 59 (2019). Discussed the history of plural marriage in the United States, starting in the nineteenth century with the Church of Jesus Christ of Latter-Day Saints (LDS Church). Discussed the modern resurgence of plural relationships of various kinds. Covered plural marriage as a foil for same-sex marriage and why this logic is inconsistent. Discussed the constitutional case for plural marriages and why its legalization is the logical extension of existing law. Concluded with discussion of the next legal steps.
Jessica Knouse, Rhetoric versus Reality: The Pro-marriage Supreme Court and the Decline of Marriage, 49 U. Tol. L. Rev. 605 (2018). Discussed the disparity in how our courts uphold the “sacred” and “noble” idealization of marriage, and how it does not match up to the societal take on marriage today. Discussed the drastic decline of marriage rates and how it is no longer the deeply rooted tradition that the Supreme Court believed it was in cases such as Loving v. Virginia, Obergefell v. Hodges, and Zablocki v. Redhail.
Anthony Michael Kreis, Stages of Constitutional Grief: Democratic Constitutionalism and the Marriage Revolution, 20 U. Pa. J. Const. L. 871 (2018). Addressed the competing visions of judicial capacity for social change in the context of the struggle for marriage equality. Considered the extent to which courts were responsible for Americans considering LGBT rights and coming to new understandings of family, examining court rulings, polling data, interviews with federal and state judges, legislative histories, and media accounts.
Julian N. Larry, The Transgender Marriage Dilemma, 33 Wis. J.L. Gender & Soc’y 23 (2018). Discussed precedent demonstrating that altering the legal-sex axis, even when complemented by Obergefell, which allows same-sex couples to marry, still does not compel the validation of marriages of trans people that were married before Obergefell.
Bradley Lohsl, Where Is the Hoosier Hospitality: The Ever-Evolving Child-Parent Relationship and Indiana’s Need for Gender-Neutrality, 52 Ind. L. Rev. 135 (2019). Discussed the issues married same-sex female couples face by being prohibited to list both spouses on their child’s birth certificate. Examined the issues the transgender community faces as they fight for equality. Advocated that the Indiana General Assembly and Indiana State Department of Health change the language in their statutes to be more inclusive and gender-neutral.
Eliza Grace Lynch, Note, A Change in Military Pension Division: The End of Court-Adjudicated Indemnification—Howell v. Howell, 44 Mitchell Hamline L. Rev. 1064 (2018). Asserted that Howell v. Howell, which held that the Uniformed Services Former Spouses’ Protection Act preempts a state court from ordering a retired service member to indemnify a former spouse for a reduction in their share of the retiree’s military pension when the retiree elects to receive disability compensation from the Department of Veterans Affairs, has an extremely narrow holding: Federal law prevents a state court from adjudicating indemnification.
John Makdisi & June Mary Zekan Makdisi, The Transformation of Marriage as a State Institution, 14 Intercultural Hum. Rts. L. Rev. 371 (2019). Discussed the institution of marriage, focusing on the promotion of procreation of children between a man and a woman. Explained that for “the good of children,” marriage is required. Evaluated the Obergefell decision to argue that the state’s involvement with marriage is detrimental to individual privacy. Argued that the “importance of morals to law” is essential and significant for marriages.
Lisa V. Martin, Restraining Forced Marriage, 18 Nev. L.J. 919 (2018). Detailed viability of civil protection orders to prevent redress from forced marriage. Argued that states create new forced marriage protection orders like the United Kingdom.
Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191 (2018). Highlighted the ways incapacitation is used to regulate the bodies and reproductive capacities of marginalized women. Argued for a legal framework that is informed by reproductive justice to be more protective of reproductive capacities of incarcerated women.
Justin O’Neill, The Queer Case of the LGBT Movement, 41 U. Haw. L. Rev. 27 (2018). Explored the history of marriage equality, the factors that played a part in rapid success of equality, and the effect of Supreme Court Justice Anthony Kennedy’s retirement on marriage equality. Argued that four factors are relevant: (1) the role individual litigants, disconnected from the central movement, played in moving the central movement forward; (2) the privileged nature of marriage litigants and the claims they were making; (3) the particularity legal nature of the social relationship of marriage; and (4) the existence of Anthony Kennedy on the Supreme Court during the period in which LGBT rights litigation occurred.
Nausica Palazzo, The Strange Pairing: Building Alliances Between Queer Activists and Conservative Groups to Recognize New Families, 25 Mich. J. Gender & L. 161 (2018). Explored some of the legal initiatives and reforms that were pushed forward by opponents of same-sex marriage in Canada and the United States. Common theme is that new families should build alliances with conservative fringe groups and capitalize on their common interest in alternatives to marriage.
Charles W. Rhodes, Loving Retroactivity, 45 Fla. St. U. L. Rev. 383 (2018). Demonstrated how the remedial and procedural doctrines such as judgment scope, declaratory breadth, limitations periods, and judgment finality, in conjunction with the Court’s prior incrementalism on same-sex marriage, can secure and settle expectations without sacrificing the promise of marriage equality.
Nicole M. Riel, The Other Mother: Protecting Non-Biological Mothers in Same-Sex Marriages, 31 Quinnipiac Prob. L.J. 387 (2018). Explained how nonbiological mothers that raise children with her same-sex partner do not have protections in Connecticut to maintain parentage if she divorces her wife. Suggested that the Connecticut Supreme Court reverse past holdings to the contrary and adopt an equitable parent doctrine of an intent-based test. Suggested, in the alternative, that the legislature create a presumption of parentage by statute through an intent-based test.
Russell K. Robinson & David M. Frost, “Playing It Safe” with Empirical Evidence: Selective Use of Social Science Evidence in Supreme Court Cases About Racial Justice and Marriage Equality, 112 Nw. U. L. Rev. 1565 (2018). Analyzed Supreme Court cases concerning race and sexuality that applied social sciences to conclude that the Court does not uniformly apply social sciences so as not to disrupt the social hierarchy.
Dave Rodkey, Note, Making Sense of Obergefell: A Suggested Uniform Substantive Due Process Standard, 79 U. Pitt. L. Rev. 753 (2018). Argued that Obergefell’s rejection of a rigid legal framework opens the door for the Supreme Court to craft a test that cures the notable ills of previous methodologies while still providing an objective judicial analysis that is firmly grounded in precedent.
Ashleigh C. Rousseau, Transgender Beneficiaries: In Becoming Who You Are, Do You Lose the Benefits Attached to Who You Were?, 47 Hofstra L. Rev. 813 (2018). Focused on the implications of a name change and gender change of a beneficiary named in a will that contains their birth name or gender. Concluded that there are legal obstacles that a transgender person may have to face in accepting their bequest under a will.
Margaret Ryznar, Robot Love, 49 Seton Hall L. Rev. 353 (2019). Considered how family law will change as robots will eventually become viable love interests for humans and may wish to marry.
Steve Sanders, Dignity and Social Meaning: Obergefell, Windsor, and Lawrence as Constitutional Dialogue, 87 Fordham L. Rev. 2069 (2019). Used landmark cases regarding gay and lesbian dignity to explain the nexus between social meaning, constitutional interpretation, and judicial decisions.
Tobin Sparling, Clay Pigeon or Trojan Horse: Pigeon v. Turner and the Intersection of Gay Rights and Judicial Ethics in Texas, 17 Conn. Pub. Int. L.J. 255 (2018). Described the City of Houston’s decision to extend spousal benefits to employees who entered into legally performed same-sex marriages. Explained the first stage of Pidgeon v. Turner, challenging Houston’s action. Discussed the U.S. Supreme Court’s intervening decision in Obergefell v. Hodges, which established same-sex marriage as a fundamental right under the Constitution. Recounts Pidgeon v. Turner and its implications alongside Obergefell v. Hodges.
Mark Strasser, Masterpiece of Misdirection, 76 Wash. & Lee L. Rev. 963 (2019). Discussed Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where a baker refused to bake a wedding cake for a same-sex marriage ceremony. Explained the background of the case as well as the implications its decision had. Explored the possible implications the decision of that case will have in the future and the doors it may have opened for continued discrimination against same-sex couples.
Gregg Strauss, What’s Wrong with Obergefell, 40 Cardozo L. Rev. 631 (2018). Explained that progressives critical of Obergefell raise objections based on three arguments: (1) It glorifies marriage and deprives nonmarital families of the dignity given to marital families; (2) it shames nonmarital families; and (3) it causes unnecessary controversy by using substantive due process instead of equal protection. Described how states have always held it to be in the best interest of public policy for couples to marry and remain married. Emphasized Obegerfell’s sin of treating nonmarital couples as “second-class citizens.” Argued that the Court should have only relied on public reasons in the decision, such as protection of intimate autonomy, child welfare, and equal access to a basic institution. Maintained that the Court’s reliance on the private rationale of encouraging marriage idealizes marital relationships at the expense of nonmarital ones.
Jeffrey M. Surprenant, Acurio v. Acurio: Parens Patriae in Marital Regimes, 64 Loy. L. Rev. 257 (2018). Claimed the court in Acurio v. Acurio was led to uphold an unfavorable premarital agreement. Explained why the court’s opinion was incorrect and will result in negative policy implications for future marital contracts.
Carl Tobias, Marriage Equality Comes to the Fourth Circuit, 75 Wash. & Lee L. Rev. 2005 (2018). Discussed Eastern District of Virginia Judge Arenda Wright Allen’s holding that Virginia’s bans were unconstitutional in regard to same-sex marriage. The U.S. Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia district judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents significant legal questions that profoundly affect numbers of individuals, the road to equality in the Circuit’s states is discussed.
Lee-Ford Tritt, The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell, 2019 Wis. L. Rev. 373 (2019). Analogized the legal changes courts made in regards to adoption to the now-changing social and legal circumstances post Obergefell v. Hodges. Examined the approaches the courts took when evolving to include adoptive children to be considered the same as biological children to suggest that the courts can adopt the same approaches to adapt to legalized same-sex marriage.
Allan W. Vestal, Vindication: Varnum v. Brien at Ten Years, 67 Drake L. Rev. 463 (2019). Discussed Varnum v. Brien, which legalized same-sex marriage in Iowa. Detailed the implications that case had for Iowa in the past ten years since its marriage-equality decision.
Monica Hof Wallace, A Primer on Marriage in Louisiana, 64 Loy. L. Rev. 557 (2018). Examined Louisiana marriage law, including the history, prerequisites, validity, and various incidents of marriage.
John Joseph Wamwara, A Case for Legalizing Polygamy in Western Societies: Lessons from the Global South, 37 Law & Ineq. 75 (2019). Focused on the arguments for and against polygamy, including the historical practices of polygamy in African societies and the religious implications. Argued a position that there is room for both monogamy and polygamy in Western society.
Lynn D. Wardle, The Intertwined Existence of Families and Religion, 32 BYU J. Pub. L. 229 (2018). Examined the connection between families and religion. Suggested that laws should be reformed to promote marriage.
L. Darnell Weeden, A Functional Free Exercise Clause Analysis Requires a State to Prove a Compelling Interest Before Interfering with an Individual’s Faith-Based Same-Sex Marriage Participation Objections, 18 Appalachian J.L. 113 (2018). Discussed legal rights and multiple court cases regarding people who refuse some type of service to a same-sex marriage couple, such as a baker refusing to bake a cake for a same-sex marriage ceremony.
Deborah Zalesne & Adam Dexter, From Marriage to Households: Towards Equal Treatment of Intimate Forms of Life, 66 Buff. L. Rev. 909 (2018). Proposed a shift from “marriage” as a status, with membership based on state approval, to the broader notion of “household” as a contract, with the parties themselves determining the members. Maintained that “households” should supplant marriages as the atomistic factor in policymaking and societal thinking.
Emily Barry, Babies Having Babies: Advocating for a Different Standard for Minor Parents in Abuse and Neglect Cases, 39 Cardozo L. Rev. 2329 (2018). Drew parallels to other court systems and argued that New York should codify an option to allow the age of a parent to be considered in abuse and neglect proceedings.
Clay Calvert, The First Amendment, Compelled Speech Minors: Jettisoning the FCC Mandate for Children’s Television Programming, 107 Ky. L.J. 35 (2018–2019). Examined whether the Federal Communications Commission should abandon its mandate that broadcasters air three hours per week of regularly scheduled television content serving the needs of minors. Explored into the First Amendment’s general animosity toward compelled-speech regulation, the FCC’s ability to impose compelled-speech directives on over-the-air broadcasters, and the Administrative Procedure Act’s requirements for abolishing the three-hour rule. Concluded that while pubic pressure to retain the rule will be immense in the name of helping children, its demise is both warranted and inevitable.
Christina Carone, The Minor Donor-Sibling Dilemma: Are Bone Marrow Donation Decisions up to the Parent or the Child?, 34 Touro L. Rev. 1109 (2018). Discussed the medical and legal implications of minor siblings as donors for transplants in situations involving cancers and other medical procedures. Outlined the process of donation as well as the selection process. Discussed the legal arguments presented for minors who refuse to be tested or donate and the constitutional protections they enjoy. Lastly discussed the statutes and laws concerning this procedure in varying jurisdictions, including foreign practices.
Michael Hayes, The Mature Minor Doctrine: Can Minors Unilaterally Refuse Medical Treatment?, 66 U. Kan. L. Rev. 685 (2018). Analyzed how allowing minors to refuse lifesaving medical treatment is not protected by the U.S. constitution or Kansas law. Compared the logic of minor’s rights advocates to conclude that giving minors this right would go against public policy upholding traditional parental rights.
Matthew R. Johnson, Minors Will Be “F*CT” by Scandalous or Immoral Trademarks: Trademark Censorship to the Rescue!, 41 T. Jefferson L. Rev. 31 (2018). Discussed how to present exposure to immoral and scandalous trademarks in the United States. Highlighted an amendment to the Lanham Act that would reduce inconsistent trademark registration approval by the U.S. Patent and Trademark Office (USPTO). Focused on In re Brunetti, which deals with Erik Brunetti’s patent application for the mark “FUCT” used for children and infant apparel. The Supreme Court’s decision in the case Matal v. Tam is also discussed.
Sydni Katz, A Minor’s Right to Die with Dignity: The Ultimate Act of Love, Compassion, Mercy, and Civil Liberty, 48 Cal. W. Int’l L.J. 219 (2018). Suggested that all states should seek to implement assisted suicide legislation to include the right to die with dignity by physician-assisted suicide to everyone, regardless of age.
Jennifer Shannon, Comment, The Analysis Is Simple: A Child’s Right to Counsel in Dependency and Neglect Proceedings Under the Montana Constitution, 79 Mont. L. Rev. 231 (2018). Argued that Montana’s Constitution in Article 2, Section 15, states that every child should be afforded the same rights as parents in dependent-neglect proceedings including the right to counsel. Asserted that the express language, legislative intent, and judicial development of Article 2, Section 15, demonstrates that a child must have the right to counsel in such proceedings.
Merril Sobie, Representing the Child in Child Protective Proceedings: Toward a New Paradigm, 28 Widener Commw. L. Rev. 169 (2019). Discussed a child’s right to legal representation for protective proceedings. Explored many questions that arise out of representing a child such as whether the age of the child comes into play when deciding if counsel needs to be appointed and what the criteria for appointing counsel should be based on. Evaluated a new approach that is based on the best interest of the child in the protective proceedings.
Rebecca Stursberg, Note, Still-in-Flux: Reinterpreting Montana’s Rights-of-Minors Provision, 79 Mont. L. Rev. 259 (2018). Suggested that Article 2, Section 15, of Montana’s Constitution repeatedly confers children with rights and opportunities that parallel those of adults. Explored the article’s historical underpinnings. Analyzed the Supreme Court cases that influenced juvenile rights before the article’s adoption. Examined relevant Montana cases and outlined the flaws in judicial interpretation of this article.
Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender L. 1 (2018). Asserted that before modern gendered practices, women would retain their own individualized surnames after marriage and pass them onto their husband and children.
Libby Adler, Inconceivable: Status, Contract, and the Search for a Legal Basis for Gay & Lesbian Parenthood, 123 Penn St. L. Rev. 1 (2018). Discussed the rights of gay and lesbian parents in the wake of Pavan v. Smith. Argued that, while gay and lesbian parental rights are improving, barriers remain such as race, class, religion, marital status, and lifestyle choices.
Hazem Alshaikhmubarak, Richard Geddes & Shoshana A. Grossbard, Single Motherhood and the Abolition of Coverture in the United States, 16 J. Empirical Legal Stud. 94 (2019). Argued that the institution of coverture, and coverture-like institutions in civil-law states, bolster women’s incentives to have children outside of marriage, and therefore, abolition of this institution would likely result in fewer children born outside of marriage.
Scott Altman, Taking Precautions When Shaping a Child’s Values, 87 UMKC L. Rev. 245 (2019). Discussed parents’ society interest when raising children while taking into account the child’s own interests. Concluded risk assessment is needed when parents make choices about their children’s values.
Wendy Bach et al., Responding to the Impacts of the Opioid Epidemic on Families, 13 Tenn. J.L. & Pol’y 347 (2018). Described the effects and consequences of a child who was born addicted to drugs. Discussed the complex medical diagnosis of NAS and maternal drug use, the history behind NAS, and the relationship between mothers who have their newborn infants stripped from them at birth because they test positive for drugs and the court system.
Spencer Bastani, Tomer Blumkin & Luca Micheletto, The Welfare-Enhancing Role of Parental Leave Mandates, 35 J.L. Econ. & Org. 77 (2019). Explored how the gender-driven career/family segmentation of the labor market may create a normative justification for parental leave rules as a means to enhance efficiency in the labor market and alleviate the gender wage gap.
Elana Bengualid, The Futility of Futility: An Analysis of the Charlie Gard Case Within the Framework of U.S. Law, 40 Cardozo L. Rev. 463 (2018). Asserted that current U.S. futility statutes do not properly balance the parents’ interests in making their children’s medical decisions and the states’ interests in protecting minors from unnecessary or prolonged harm because they give no guidance as to what can, or should, be characterized as medically futile. Proposed that states should amend their futility statutes to reflect the American Thoracic Society.
Stacia R. Berg, Searching for the Truth in a Half-Told Story: Balancing Parental Rights Against Children’s Interests in Purcell v. Begnaud, 63 S.D. L. Rev. 362 (2018). Discussed fundamental parental rights, the domestic abuse statutes of South Dakota and other states, and the necessity of finding solutions that both safeguard children from abuse and protect parents’ rights. Further analyzed the Purcell decision to show that the court failed to recognize the possibility that other remedies may better protect children.
Rosalyn Broad, Gard v. United Kingdom: Does the State Know Best?, 26 Tul. J. Int’l & Comp. L. 405 (2018). Examined how the court in Gard v. United Kingdom used its power to determine that a young child born with severe defects could be taken off life support. Suggested that giving courts this much power could be dangerous.
Jessica Feinberg, A Logical Step Forward: Extending Voluntary Acknowledgements of Parentage to Female Same-Sex Couples, 30 Yale J.L. & Feminism 99 (2018). Discussed the discrepancy in legal parental status laws between same-sex couples and different-sex couples who have children. Examined how the same-sex partner of the woman who gives birth to the child usually has to endure more complex legal procedures to establish parentage than different-sex couples do. Proposed a federal “Voluntary Acknowledgements of Parentage,” which would fast-track legal parentage for same-sex couples.
Jacob Goldin & Zachary Liscow, Beyond Head of Household: Rethinking the Taxation of Single Parents, 71 Tax L. Rev. 367 (2018). Argued that the design of the head of household filing status is largely obsolete and geared towards alleviating a “marriage penalty,” which is much less important than when the filing status was first established.
Emily Halter, Parental Prisoners: The Incarcerated Mother’s Constitutional Right to Parent, 108 J. Crim. L. & Criminology 539 (2018). Argued that incarcerated mothers have the right to parent their children under the Fourteenth Amendment and should be given longer periods of time with their newborns after giving birth than what is currently offered. Acknowledged that finding a method to protect an incarcerated mother’s right to parent is difficult but offered several suggestions that other states have used.
Kaitlyn Hansen, Futile Care, Experimental Treatments, and the Right to Try Movement: Could the Charlie Gard Case Happen in America?, 52 Suffolk U.L. Rev. 87 (2019). Discussed the issue of when parents’ medical decisions for their children should be honored over the opinions of medical professionals or court orders through the lens of the Charlie Gard case.
Meredith Johnson Harbach, Childcare, Vulnerability, and Resilience, 37 Yale L. & Pol’y Rev. 459 (2019). Analyzed a new approach to childcare problems and discussed the state’s existing orientation towards children and families and its issues. Discussed how the state can support families to ensure all children have access to quality childcare and help make way for more equitable access to our aspirations for future generations.
Jessica Nation Holtman, Standing in the Way of Our Goals: How the Best Interest of the Child (Whatever That Means) Is Never Reached in Texas Due to Lack of Standing for Third-Party Parents, 5 Tex. A&M L. Rev 563 (2018). Explained how the best interest of the child standard relates to third parties and their ability to remain in children’s lives. Suggested giving third-party parents a way to fight for their children, by either changing the code or redefining parts of it.
Sonia K. Katyal & Ilona M. Turner, Transparenthood, 117 Mich. L. Rev. 1593 (2019). Discussed how the court system has disfavored transgender parents and how it continues to do so. Suggested better ways for the family law system to create equal treatment for transgender families.
Paige Lyons, Are You My Mother?: Equality for Same-Sex Parents in Texas Following Obergefell, 51 Tex. Tech. L. Rev. 241 (2019). Argued that the law should clearly provide that a de facto parent is a legal parent to ensure equal footing with other legal parents. Argued this would facilitate the clarification of parent-child relationships at a time when parties are not hostile to each other, therefore providing greater stability to families as well as reducing family law–related litigation.
Kellie Mahoney, Note, The “Legal Stranger” and Parent: A Love Story?, 34 Touro L. Rev. 531 (2018). Argued that the definition of “parent” should be expanded beyond legal or biological ties. Suggested that states should recognize psychological parents, de facto parents, and parents by estoppel. Maintained that broadening the legal definition of “parent” would allow same-sex partners that were once married to establish standing to seek parental rights in the State of New York.
Yehezkel Margalit, Towards Establishing Parenthood by Agreement in Jewish Law, 26 Am. U. J. Gender & Soc. Pol’y & L. 647 (2018). Explored the ways legal parenthood has been established in the Jewish legal system. Argued that the Jewish system should add intentional parenthood to the process of establishing legal parenthood.
Carla M. Newman, Bartering from the Bench: A Tennessee Judge Prevents Reproduction of Social Undesirables; Historic Analysis of Involuntary Sterilization of African American Women, 10 Geo. J.L. & Mod. Crit. Race. Persp. 53 (2018). Discussed the fundamental right to procreate—except for African American women. A historical examination shows that such procreation was viewed as a privilege rather than a right for African American women and that view allowed for forced sterilization laws.
Jeffrey A. Parness, Faithful Parents: Choice of Childcare Parentage Laws, 70 Mercer L. Rev. 325 (2019). Explained the changes to the 2017 Uniform Parentage Act (UPA), including the expansion of ways one can claim parentage, and exploring the choice of law issues that may arise from the broadening definitions of parentage in a multistate context.
Jeffrey A. Parness, Unnatural Voluntary Parentage Acknowledgements Under the 2017 Uniform Parentage Act, 50 U. Tol. L. Rev. 25 (2018). Maintained that the Uniform Parentage Act of 2017 has expanded the parentage concept of voluntary acknowledgments by intended parents with no natural ties to their already acknowledged children. Supported amending the Uniform Parentage Act to include a provision recognizing that parentage may be declared by men or women without any natural ties. Explained that such a provision resolves issues concerning “hold out” and “de facto” parents.
Brett Potash, Note, Unequal Protection: Examining the Judiciary’s Treatment of Unwed Fathers, 34 Touro L. Rev. 649 (2018). Argued that questions concerning the constitutional rights of unwed biological fathers (and parents generally) should be subject to a strict-scrutiny analysis instead of the current intermediate-scrutiny standard. Analyzed and discussed the Supreme Court’s treatment of unwed fathers in the Stanley–Michael H line of cases. Outlined a specific definition for the term “parent.”
Dara E. Purvis, The Constitutionalization of Fatherhood, 69 Case W. Res. L. Rev. 541 (2019). Discussed the inequality unwed fathers have faced throughout history. Identified a new approach to constitutionalize fathers and give them equal rights across the law.
Catherine Reagan, One Parent, Two Parents, Three Parents, More: California’s Third Parent Law Should Go Back to the Floor, 52 U.C. Davis. L. Rev. 2165 (2019). Examined California’s Third Parent Law, argued that the law is unconstitutional, and suggested how the legislation should be reexamined.
Mark Strasser, Custody, Visitation, and Parental Rights Under Scrutiny, 28 Cornell J.L. & Pub. Pol’y 289 (2018). Analyzed parental rights under federal and state laws; advocated for a clear decision from the U.S. Supreme Court that adequately delineates the rights and protections afforded parents, specifically regarding custody and visitation matters.
Rosanna Tamam, Formalism vs. Function: Why the Testamentary Appointment of a Guardian Other Than the Natural Surviving Parent Should Sometimes Be Honored, 31 Quinnipiac Prob. L.J. 407 (2018). Explained the differences in Connecticut law and the UPC approach when considering what to do when a single parent appoints a guardian in his or her will that is not the surviving biological parent. Suggested that Connecticut adopt laws similar to the UPC to allow more flexibility to the process, giving both sides a chance to be heard.
H. Elenore Wade, Preserving the Families of Homeless and Housing-Insecure Parents, 86 Geo. Wash. L. Rev. 869 (2018). Proposed requiring reasonable efforts to include housing assistance that may prevent removal of children from their families, as well as repurposing federal funding to serve the states’ goals of child welfare law.
Helen M. Alvare, A Perfect Storm: Religion, Sex and Administrative Law, 92 St. John’s L. Rev. 697 (2019). Compared the Trump administration policy that funds abstinence programing and the Obama administration policy that required religious groups to offer free contraception. Suggested how both Health and Human Services and religious organizations can work to accomplish successful policies.
Ayelet Blecher-Prigat, Conceiving Parents, 41 Harv. J.L. & Gender 119 (2018). Argued that the relationship between the prospective parents should be considered, along with biology and intent, when making the parentage determination upon a child’s birth.
Meghan Boone, Lactation Law, 106 Cal. L. Rev. 1827 (2018). Proposed that changes in lactation law lead to reinforcement of traditional family values, including the role of women, motherhood, and family. The problems with current lactation law are that the focus on the infant’s right to be fed mandates that breastfeeding be done “with modesty” and restricts nontraditional families’ rights to public breastfeeding.
Courtney Megan Cahill, After Sex, 97 Neb. L. Rev. 1 (2018). Examined the use of alternative reproductive technologies. Suggested that the increased use of alternative reproductive technologies will cause an idea of sexual supremacy—similar to marital supremacy—to develop within the law.
Kristi A. Denny, The Case for a Constitutional Right to Conscience for Health Care Providers, 32 Notre Dame J.L. Ethics & Pub. Pol’y 407 (2018). Addressed Stormans’ substantive due process claim as a more viable source of protection for religious objectors within the court’s current jurisprudence in Stormans, Inc. v. Wiseman. Took issue with the Ninth Circuit’s framing and analysis of the due process right that the Stormans were seeking recognition of, and argued that if the courts are truly applying Glucksberg’s “deeply rooted” test to determine what substantive rights the Due Process Clause protects, then the Stormans’ right to conscience as health care providers should be recognized and protected.
Isabel Karpin, Vulnerability and the Intergenerational Transmission of Psychosocial Harm, 67 Emory L.J. 1115 (2018). Examined scientific studies that reveal an intergenerational impact resulting from harms perpetrated on a woman prior to conception and birth of her children, with a focus on the impact of stress. Considered the way law may play a role in mediating or mitigating those harms using a vulnerability and inevitable dependency approach from Martha Fineman’s work.
Samantha Laufer, Reproductive Healthcare for Incarcerated Women: From “Rights” to “Dignity,” 56 Am. Crim. L. Rev. 1785 (2019). Discussed the reproductive health care available to women who are incarcerated. Argued that both state and federal prisons have fallen short in protecting incarcerated women’s rights to receive proper reproductive health care. Discussed the recent legislative efforts made to correct this shortcoming and better provide for the women incarcerated in prisons.
Linda Levinson, Solving the Modem “Midwife Problem”: The Case for Non-nurse Midwifery Legislation in Pennsylvania, 91 Temp. L. Rev. 139 (2018). Discussed non-nurse midwifery in Pennsylvania and how it lacks the appropriate legislative and licensing framework to adequately control and monitor the practice. Explained the need for state-run licensing, as many births happen outside hospitals. Argued that the Pennsylvania legislature should consider the legality of midwifery and institute guidelines for licensing as well as standard operating procedures.
Eugene McCarthy, In defense of Griswold v. Connecticut: Privacy, Originalism, and the Iceberg Theory of Omission, 54 Willamette L. Rev. 335 (2018). Argued the originalist critiques of Griswold are ill conceived and fail to comport with the originalist method. Explained this by discussing the following: (1) the evolution of the right to privacy culminating in Griswold; (2) the originalist critique of judges against Griswold and the reproductive rights cases that followed; (3) the long-standing mode of authorship reconciling original intent with the Constitution’s silence on privacy; and (4) that Griswold correctly identified the founders’ use of implied omission while drafting the Constitution.
Kirsten Mehnert, Book review, Reproductive Justice: The Politics of Healthcare for Native American Women by Barbara Gurr, 14 J. Health & Biomed. L. 445 (2018). Discussed the effects of Gurr’s book on the reader and builds a basic understanding of Federal Indian Law and major concepts in health care that affect Native women. Analyzed Gurr’s topics regarding women’s reproductive health in Indian Country. Addressed how the Violence Against Women Act should aid in prosecuting sexually violent crimes on Indian Reservations.
Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325 (2019). Utilized a hypothetical case study of a pregnant woman diagnosed with Zika to illustrate the tensions between current medical guidelines and the seemingly opposing standards of care that disability rights advocates and advocates for reproductive justice seek to implement.
Elyssa Sternberg, Who Moved My Harm Principle? How the Relationship Between Complicity Claims and the Contraception Mandate Shows That Considerations of Third-Party Harms in Religious Exemption Cases Are Not Where We Think They Are, 28 S. Cal. Rev. L. & Soc. Just. 165 (2019). Argued that during the rise of complicity claims requesting religious accommodations, religion has denied access to birth control coverage in employee health care plans. Also argued that there is a constitutional concern that complicity claims are violations of the basic rights to liberty and equality.
Hannah Tuschman, Birth Directives: A Model to Address Forced or Coerced Cesareans, 69 Case W. Res. L. Rev. 497 (2018). Discussed the nature of forced C-sections on mothers and how the woman’s constitutional rights intersect with the state’s interests in protecting a potential life. Discussed the balancing test that Roe v. Wade requires, and how it is often misused in situations like this where a patient has a constitutional right to refuse medical treatment.
Tiffany Sala, What Do You Get When You Abuse Your Spouse: Spousal Support, 50 McGeorge L. Rev. 735 (2019). Discussed the California law concerning spousal support and the potential for domestic violence abusers to collect support from their victims. Proposed legislation that can prevent domestic violence victims from providing spousal support, with focus being given to enacting specific provisions that include all types of abuse, meaning documented, convicted, and unreported when considering spousal support judgments.
Ryan Yergensen, Childcare Credits versus Deduction: An Efficiency Analysis, 22 Tex. Rev. L. & Pol. 571 (2018). Analyzed the difference between the effect that a refundable tax credit, a nonrefundable tax credit, and a tax deduction have on inducing stay-at-home parents to enter the workforce. Suggested that a childcare tax deduction would be the most efficient tax break to utilize for encouraging stay-at-home parents to enter the workforce if the labor supply elasticity is higher for stay-at-home parents in upper-income households because those stay-at-home parents are more responsive to changes in the take-home pay after taxes.