The Empirical Turn In Family Law

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families. There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more fundamental problems: Using empirical evidence focuses attention on the outcomes of legal rules, discouraging a debate about contested and competing values. Reliance on empirical evidence overlays a veneer of neutrality on normative judgments. And uncritically adopting evidence about present conditions without interrogating the role of historical discrimination that continues to disadvantage some families can replicate that discrimination. Given the promise and peril of the empirical turn in family law, this Essay proposes a framework to guide the use of this evidence. The framework preserves space for debating multiple values and advises decisionmakers when to use empirical evidence, with particular attention to the dangers for nondominant families. The framework also recommends strengthening evidentiary gatekeeping and elevating the potential for legal scholarship to serve as a bridge from the broader research base to the courts. With this guidance in place, empirical evidence can take its rightful place as a useful but cabined tool in the legal regulation of families

Family Law\u27s Exclusions

As Fordham Law School commemorates the hundredth anniversary of women in its ranks, the school is also acknowledging the ways it has excluded women. For this special Issue celebrating scholarship by the women of Fordham, I see a similar theme echoing in my work. From my first article, published soon after I graduated from law school, through my most recent work, I have identified and explored the exclusions riddling family law

The Child-Welfare System and the Limits of Determinacy

Robert Mnookin’s article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, is a classic. His insights into the substance and process of family law have influenced scholars for nearly four decades. This essay, written for a symposium marking the upcoming anniversary of the article, demonstrates that Congress adopted many of Mnookin’s proposals to introduce greater determinacy into the child welfare system. And yet the problems he described nearly forty years ago sound all too familiar today. After engaging in a detailed analysis of the reforms, I argue that with the evidence on determinacy now in hand, it is time to reflect on the possibilities and limits of the child welfare system. Reforms to the legal standards have done little to address the larger problems that underlie child abuse and neglect, particularly poverty, social isolation, substance abuse, and parental stress. Family preservation efforts are woefully underfunded and come too late. And time limits on reunification help move children to permanency but at a substantial cost to families of origin. The child welfare system needs a fundamental reorientation toward prevention. Broad-based “family support” programs offer a promising model; it is here that we should place our real efforts. And for those children who are removed from their homes — there will always be some — the child welfare system should develop more realistic goals for children and families

Early Childhood Development and the Law

Early childhood development is a robust and vibrant focus of study in multiple disciplines, from economics and education to psychology and neuroscience. Abundant research from these disciplines has established that early childhood is critical for the development of cognitive abilities, language, and psychosocial skills, all of which turn, in large measure, on the parent-child relationship. And because early childhood relationships and experiences have a deep and lasting impact on a child’s life trajectory, disadvantages during early childhood replicate inequality. Working together, scholars in these disciplines are actively engaged in a national policy debate about reducing inequality through early childhood interventions. Despite the vital importance of this period, the law and legal scholars have been largely indifferent to the dynamics of early childhood development. Doctrine and legislation are rarely developmentally sensitive, lumping children into an undifferentiated category regardless of age. The legal system thus misses key opportunities to combat inequality and foster healthy development for all children. And most legal scholars do not engage with the wealth of interdisciplinary research on early childhood, nor are they part of the interdisciplinary dialogue and policy debates. As a result, that conversation does not include the voices of lawyers and legal scholars, who are uniquely positioned to add critical insights. Remedying this stark disconnect requires doing for law what scholars have done in other disciplines: creating a distinctive field. Accordingly, this Article proposes a subdiscipline of early childhood development and the law. The new field crystallizes a distinctive interest that the legal system must attend to and charts a path for legal scholars to follow for years to come. As with the dawning of fields such as juvenile justice, domestic violence, and elder law, early childhood development and the law will be a focal point for research within the legal academy, a vital bridge to scholars in other disciplines, and an important means for bringing lawyers and legal scholars to the heart of emerging policy debates

Deviant (M)others: The construction of teenage motherhood in contemporary discourse

Paradoxically, the focus on teen motherhood as an object of concern in the West has coincided with declining rates of teen birth. This suggests that the view of teenage motherhood as problematic is underpinned by changing social and political imperatives regarding the role of, women in these countries. This article examines the literature surrounding teenage motherhood from the United States, United Kingdom and New Zealand, and explores the way in which normative perceptions of motherhood have shifted over the past few decades to position teenage mothers as stigmatised and marginalised. Two specific discourses - those of welfare dependency and social exclusion - are highlighted, and their mediation through scientific discourses examined. The increasing trend to evidence-based policy development has masked the ideological basis of much policy in this area and highlights the importance of critical valuation of the discourses surrounding teenage motherhood. A critical examination of the literature suggests that teenage mothers are vilified, not because the evidence of poor outcomes for teen mothers and their children is particularly compelling, but because these young women resist the typical life trajectory of their middle-class peers which conforms to the current governmental objectives of economic growth through higher education and increased female workforce participation

Children’s Health in a Legal Framework

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have considerable latitude to do so, unless the child’s life is imminently threatened. There are some exceptions to this legal regime. Adolescents have the right to obtain some health services independently; in these contexts, social welfare needs such as pregnancy prevention trump parental rights. Minors also have access to abortion (although this right is more restricted than for adults). Moreover, the state has the power to intervene when parents place their children’s health at risk through abuse or neglect. A hallmark feature of the legal regime based on parental rights is that the state has no affirmative obligation to help parents care for their children’s health needs. This libertarian framing of the family-state relationship has profound implications for the development of public policy. To the extent the state provides support for families and children, it is doing so as a matter of policy choice (as with Medicaid and the Children’s Health Insurance Program) and not enforceable legal obligation. The importance of family autonomy thus results in a weak conception of shared responsibility for children. The framework also means that the state often takes a reactive approach to child wellbeing, intervening primarily when families have broken down or parents have seriously defaulted on their duties. Appreciation of the legal framework underscores the need to develop political support for any initiative to improve health services for children. Often, as this article shows, the state intervenes to promote children’s health only in response to compelling social welfare needs such as crime or disease prevention, or to crises in which parents abuse their children or fail to provide adequate care