The “Right” to a Disinterested Prosecutor of Criminal Contempt: Unpacking Public and Private Interests

In this Article I argue that, contrary to Justice Blackmun\u27s concurring opinion and the opinions of several state courts, courts should not expand Young to establish a new due process right for criminal contemnors that would bind state courts

Dangerous Liaisons: Social Science and Law in Domestic Violence Cases

This article explores the fundamental differences between law and social science in how they ascertain truth, through examination of a popular domestic violence “typology” which is increasingly used in child custody litigation. The paper examines how courts and evaluators have used the typology to minimize or ignore a parent’s past domestic violence. It also reviews the empirical research to determine whether courts’ understandings of the typology’s “types” are empirically supported. Although the typology has been widely touted as empirically based, the research indicates significant contradictions and gaps in the research, and suggests that there is little empirical support for the key aspects of the “types” on which courts rely. The analysis demonstrates how the nuances and complexities of social science research do not transfer to litigation, resulting in simplistic labeling which often creates harmful outcomes for children. This analysis is important both to the family law and domestic violence fields, where the typology is gaining traction, and to the larger question of how social science is used in the law. The article constitutes a call to courts to step back from frequent and uncritical incorporation of social science in their legal decision-making. This article explores the fundamental differences between law and social science in how they ascertain truth, through examination of a popular domestic violence “typology” which is increasingly used in child custody litigation. The paper examines how courts and evaluators have used the typology to minimize or ignore a parent’s past domestic violence. It also reviews the empirical research to determine whether courts’ understandings of the typology’s “types” are empirically supported. Although the typology has been widely touted as empirically based, the research indicates significant contradictions and gaps in the research, and suggests that there is little empirical support for the key aspects of the “types” on which courts rely. The analysis demonstrates how the nuances and complexities of social science research do not transfer to litigation, resulting in simplistic labeling which often creates harmful outcomes for children. This analysis is important both to the family law and domestic violence fields, where the typology is gaining traction, and to the larger question of how social science is used in the law. The article constitutes a call to courts to step back from frequent and uncritical incorporation of social science in their legal decision-making

Domestic Violence, Character, and Social Change in the Welfare Reform Debate

This article addresses the recently discovered connection between domestic violence and welfare “dependency.” Empirical research among welfare populations shows that over 50% of women receiving welfare are or have recently been battered, and that partner abuse is a major reason for the continuing poverty of many women. The question the author asks and begins to answer is why this connection has not previously been identified or publicized by either the battered women’s movement or the anti-poverty movement, and what the challenge may be to both movements as they attempt to address it in the context of welfare reform. The author argues that the connection has not been previously addressed because of the somewhat conflicting ideologies underlying both movements. The battered women’s movement is defined in part by its strong moral denunciation of male abusers and assertion of the victimization of women by men. The anti-poverty movement is reluctant to demonize half of the poor population, particularly in light of the conservative welfare reformers’ emphasis on “character” as the main cause of poverty. The article argues that we must — and can — find a way to synthesize the feminist emphasis on interpersonal justice and morality with the anti-poverty movement’s recognition of the larger social causes of poverty. The perspectives of both movements must be enlarged o recognize the multiple layers of victimization by which poor women and men endure; and both movements will be revitalized by this cross-fertilization

Getting Real About Abuse and Alienation: A Critique of Drozd and Olesen\u27s Decision Tree

Specialists in abuse and alienation have long taken opposing positions on the legitimacy of the concept of alienation in custody cases where abuse is alleged. One increasingly popular response that appears to carve a middle path is acknowledge that both alienation and abuse may co-exist, and to focus on hybrid cases, i.e., those in which there are cross-allegations of abuse and alienation. This article discusses and critiques, from the perspective of an expert on abuse, one of the earliest and most significant approaches to the hybrid case: Drozd and Olesen’s Decision Tree. The author concludes that, while the Decision Tree is a thoughtful and well-intentioned effort to objectively and fairly assess abuse and alienation as well as other potential sources of a damaged child-parent relationship, the hybrid approach itself as well as some of the Tree’s concepts, such as counter-productive protective parent, implicitly privileges alienation over abuse, and unintentionally but inevitably contributes to the marginalizing or hiding of credible abuse and risk to children. Johnston’s credible empirical research has demonstrated that child alienation occurs in only a small fraction of cases where parents engage in alienating behavior and is almost always caused at least in part by the disfavored parent’s behaviors. Alienation, however, has been widely used to defeat legitimate and credible abuse concerns. The article concludes that alienation has been vastly over-emphasized in family courts and in the literature, in part because it furthers family courts’ desire to maximize fathers’ role in separating families. The article ends with an alternative and simpler 7-step proposal for assessment of alienation in hybrid cases, which is premised on the assumption that true alienation must be de-linked from the presence of abuse allegations and can only legitimately be evaluated after abuse has been screened out

Davis/Hammon, Domestic Violence, and the Supreme Court: The Case for Cautious Optimism

The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. This acknowledgment is embodied in both the text of the opinion and in the Court’s jurisprudential compromise, which ensures that some victims at risk from testifying can still be protected by the criminal process. This Essay explains this perspective and suggests important avenues for advancing the jurisprudence to continue to better integrate the realities of domestic violence into constitutional standards

Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imaging the Solutions

This 2003 article seeks to take on what was then conventional wisdom, that myriad law reforms over the prior two decades have improved and corrected the law\u27s response to domestic violence. It focuses on family courts\u27 failure to credit and respond appropriately to protective mothers\u27 - mostly battered women\u27s - allegations that fathers are unsafe for the children. It unpacks several neutral principles that seem to guide family courts\u27 responses to abuse allegations, arguing that they are mis-guided, and distort the realities of battering and child abuse in these cases. While not seeking to explain family court culture simply in terms of gender bias, it discusses aspects of commonly held views that are intrinsically gender discriminatory. It ends with two thought experiments as suggestions for possible mechanisms for challenging and correcting the dominant and non-protective family court culture in these cases

Getting Real About Abuse and Alienation: A Critique of Drozd and Olesen\u27s Decision Tree

Specialists in abuse and alienation have long taken opposing positions on the legitimacy of the concept of alienation in custody cases where abuse is alleged. One increasingly popular response that appears to carve a middle path is acknowledge that both alienation and abuse may co-exist, and to focus on hybrid cases, i.e., those in which there are cross-allegations of abuse and alienation. This article discusses and critiques, from the perspective of an expert on abuse, one of the earliest and most significant approaches to the hybrid case: Drozd and Olesen’s Decision Tree. The author concludes that, while the Decision Tree is a thoughtful and well-intentioned effort to objectively and fairly assess abuse and alienation as well as other potential sources of a damaged child-parent relationship, the hybrid approach itself as well as some of the Tree’s concepts, such as counter-productive protective parent, implicitly privileges alienation over abuse, and unintentionally but inevitably contributes to the marginalizing or hiding of credible abuse and risk to children. Johnston’s credible empirical research has demonstrated that child alienation occurs in only a small fraction of cases where parents engage in alienating behavior and is almost always caused at least in part by the disfavored parent’s behaviors. Alienation, however, has been widely used to defeat legitimate and credible abuse concerns. The article concludes that alienation has been vastly over-emphasized in family courts and in the literature, in part because it furthers family courts’ desire to maximize fathers’ role in separating families. The article ends with an alternative and simpler 7-step proposal for assessment of alienation in hybrid cases, which is premised on the assumption that true alienation must be de-linked from the presence of abuse allegations and can only legitimately be evaluated after abuse has been screened out

Johnson’s Differentiation Theory: Is It Really Empirically Supported?

Michael Johnson’s differentiation of ‘‘types’’ of domestic violence has had a significant impact on courts and providers, in part because of its claim to an empirical basis. Unfortunately, the label ‘‘situational couple violence’’ has already been used by judges and evaluators to minimize abuse claims in custody cases. Johnson’s repeated assertion that SCV is the most common form of domestic violence reinforces the marginalizing of domestic violence. But what do his data actually show? Here Professor Meier takes a close look at the research Johnson relies on and finds that it fails to prove his thesis. Rather, the data suggest that Johnson has it exactly backward: Control-based abuse is probably far more common than ‘‘situational’’ domestic violence

Teaching Lawyering With Heart in the George Washington University Law School Domestic Violence Project

The Domestic Violence Project (DVP) began as an experiment and has become my favorite model for teaching law students about domestic violence work. The heart of the course is its emphasis on developing awareness of and compassion for the personally and emotionally challenging dimensions of this work. I achieve this (i) through a dialogue between students’ journals and my written responses, (ii) by inviting students to produce a creative project, and (iii) by teaching reflexively about vicarious trauma. Many students experience this course as an oasis of holistic professional and personal growth within the often dispiriting experience of law school