FLASH: The Fordham Law Archive of Scholarship and History

Mutual Dependency in Child Welfare

Clare Huntington — Thu, 16 May 2013 13:40:18 PDT

The child welfare system is in need of fundamental reform. To the great detriment of parents and children, in the current system the state waits for a crisis in a family and then intervenes in a heavy-handed fashion. The state pays scant attention to the prevention of child abuse and neglect. This article argues that the principle conceptual barrier to the adoption of a prevention-oriented approach to child welfare is the dominant conception of family autonomy, which venerates freedom from state control. This article proposes a novel reconfiguration of family autonomy that encourages engagement with the state, rather than simply freedom from the state. An "engagement with" model of family-state relations is both a more apt description of the actual relationship between all families and the state and a better prescription for the well-being of families. This model recognizes the mutual dependency of families and the state: families need state support to function well, and the state needs well-functioning families. State support, however, must not come at the cost of familial self-determination, a principle nominally served by the "freedom from" conception of family autonomy. Therefore, this article addresses how the state can both provide a more robust level of support for families while still protecting familial self-determination, to the great benefit of parents, children, and the state.

Repairing Family Law

Clare Huntington — Thu, 16 May 2013 13:40:16 PDT

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void, and inaugurate a larger debate about the central role of emotion in family law, by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and aggression, feel guilt about the transgression, and then seek to repair the damage. This Article argues that the legal process embodied in the substance, procedure, and practice of traditional family law is at odds with the human process of love, hate, guilt, and reparation. In contexts as far ranging as divorce, child welfare, and adoption, family law is predicated on a binary model of love and hate, with no accounting for guilt and the drive to reparation. This Love-Hate Model actively thwarts the cycle of intimacy, greatly diminishing the opportunity for repair in familial relationships. In short, reparation as a normative goal receives far too little attention in family law. Although several important reforms have begun to move family law away from the Love-Hate Model, these reforms are undertheorized and incomplete and sometimes actively challenged. An overarching theory is needed both to undergird current reforms and to encourage others, thus moving family law more fully in a reparative direction. To replace the prevailing Love-Hate Model, this Article proposes a Reparative Model of family law that would recognize the full cycle of emotions and facilitate the reparative drive. A Reparative Model would modify the substance of family law to recognize the ongoing relationships that often persist even after legal relationships are altered. It would reform the process of family law by de-emphasizing adversarial decisionmaking. And it would change the practice of family law by reconceiving the role of the family law attorney. Ultimately, the Reparative Model yields new perspectives on a range of theoretical and practical problems in contemporary family law, providing a framework for the law to account for the full, and complex, emotional reality of familial relationships.

The Constitutional Dimension of Immigration Federalism

Clare Huntington — Thu, 16 May 2013 13:40:14 PDT

Although the federal government is traditionally understood to enjoy exclusive authority over immigration, states and localities are increasingly asserting a role in this field. This development has sparked vigorous debate on the propriety of such involvement, but the debate is predicated on a misunderstanding of the nature of federal exclusivity. Challenging the conventional wisdom that the Constitution precludes a meaningful role for state and local involvement in immigrationa structural preemption argumentthis Article argues that the Constitution allows immigration authority to be shared among levels of government. After establishing the correctness of this view of immigration authority, this Article argues that the constitutionality of state and local involvement should be assessed through the lens of traditional federalism values. A federalism lens does not necessarily validate any particular state and local regulation, but in lieu of the blunt tool of structural preemption, it is a far superior means for determining the proper allocation of immigration authority among levels of government, leading to a more nuanced assessment of the interests at stake.

Happy Families - Translating Positive Psychology into Family Law

Clare Huntington — Thu, 16 May 2013 13:40:13 PDT

Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This Essay addresses this translation question by exploring the indeterminacies inherent in positive psychology and identifying productive ways forward.

Welfare Reform and Child Care: A Proposal for State Legislation

Clare Huntington — Thu, 16 May 2013 13:40:10 PDT

The shortage of subsidized child care creates three problems. First, it contributes to underemployment because job options are greatly reduced when child care is unavailable. Second, it erodes the wages of parents who do work because low-income families spend a debilitating percentage of their earnings to pay for the care of their children. Third, it relegates many children to poor quality child care settings, compromising their academic potential and social well-being, and placing them at risk for delinquency and dependency. Part I of this article discusses the current paucity of quality, affordable child care, and the effects of this shortage. Part II describes the child care provisions of the Personal Responsibility and Work Opportunity Act and then explores the lessons of the original CCDBG, providing the background for proposed state child care legislation. Part III proposes state child care legislation that maximizes the impact of the increased federal funding and decreased regulatory requirements, relying on the states' six-year experience with the CCDBG. To the extent that this legislation calls for additional state investment, Part II discusses how states can finance these investments.

Rights Myopia in Child Welfare

Clare Huntington — Thu, 16 May 2013 13:40:09 PDT

For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict rather than collaboration between the state and families. In lieu of a solely rights-based model, this Article proposes a problem-solving model for child welfare and explores one embodiment of such a model, family group conferencing. This Article concludes that a problem-solving model holds significant potential to address many of the profound theoretical and practical shortcomings of the current child welfare system.

Familial Norms and Normality Colloquium Celebrating 25th Anniversary of Feminism and Legal Theory Project

Clare Huntington — Thu, 16 May 2013 13:40:07 PDT

Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is an under-recognized aspect of the family-state relationship. Although scholars have explored aspects of familial social norms, current accounts offer an incomplete picture of both families and family law because they insufficiently account for the elemental relationship between social norms, emotion, and the state. By exploring the confluence of these forces, this Article makes two contributions to the literature. Descriptively, this Article identifies the centrality of emotion in creating and defining familial social norms. First, emotion is often the content of a familial social norm; therefore it is impossible to understand the norm without understanding emotion. Second, emotions can trigger social norms, with particular emotions leading to changes in behavior. Third, familial social norms carry tremendous emotional weight, which explains why the cost of noncompliance can be particularly high in the family context. Finally, the emotion-laden nature of familial social norms complicates any predictive enterprise for law and policy. Normatively, a more complete understanding of the operation of familial social norms allows for more effective regulation of families. The state should recognize that emotion is a powerful point of entry when it seeks to influence norms and shape behavior. There are risks to this influence, but exposing the uncomfortable reality that the law often tries to manipulate our affective lives creates an opportunity to use this dynamic for more appealing ends, such as cultivating greater tolerance for parental conduct that falls outside dominant norms.

Embracing the Affective Family

Clare Huntington — Thu, 16 May 2013 13:40:06 PDT

Emotional State and Localized Norms: A Reply

Clare Huntington — Thu, 16 May 2013 13:40:05 PDT

This piece is a response to Emory Law professor Martha Albertson Fineman's comments on Professor Huntington's Article "Familial Norms and Morality, 59 Emory L.J 1103 (2010).

Purple Haze (Book Review)

Clare Huntington — Thu, 16 May 2013 13:40:04 PDT

This is a review of Red Families v Blue Families: Legal Polarization and the Creation of Culture. By Naomi Cahn & June Carbone. New York: Oxford University Press. 2010

Canons of Construction and the Elusive Quest for Neutral Reasoning

James J. Brudney et al. — Tue, 14 May 2013 21:56:55 PDT

Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive resources, linking reliance on those resources to ideological outcomes, and pursuing extensive follow-up doctrinal analysis of individual cases - breaks important new ground in the analysis of judicial reasoning from an empirical perspective. Our findings and conclusions cast serious doubt on the contentions by legal process proponents that the canons can serve as consistent or impartial guidelines to statutory meaning; they also challenge the behavioral account of canon use advanced by public choice scholars. In addition, we identify an important subset of cases in which the Rehnquist Court has relied on canons to help undermine the demonstrable legislative preferences of Congress. Overall, our results and analyses offer a sobering counterpoint to the elevated normative claims made by some justices and many scholars on the canons' behalf.

Liberal Justices' Reliance on Legislative History

James J. Brudney et al. — Tue, 14 May 2013 21:56:54 PDT

This Article presents a strong case against the conventional wisdom that legislative history is a "politicized'" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors explain how liberal Justices use legislative history to illuminate the contours of complex statutory bargains that often favor conservative or pro-employer positions. After considering alternative explanations, the authors conclude that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The Article also describes how, in the face of Justice Scalia's fervent opposition to legislative history, liberal Justices since 1986 have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals' strategic restraint is that their use of legislative history in the remaining (mostly pro-employee) majority opinions appears more ideological than it was before Scalia joined the Court. Intriguingly, Justice Scalia's strong resistance to legislative history when used by liberal Justices does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues more of a free ride: he is as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

The Warp and Woof of Statutory Interpretation: Comparing Supreme Curt Approaches in Tax Law and Workplace Law

James J. Brudney et al. — Tue, 14 May 2013 21:56:52 PDT

Debates about statutory interpretation-and especially about the role of the canons of construction and legislative history-are generally framed in one-size-fits-all terms. Yet federal judges including most Supreme Court Justices-have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008. The authors conclude that the Justices tend to rely on legislative history for importantly different reasons in these two fields. The Court regularly invokes committee reports and floor statements in the workplace law area for the traditional role of identifying and elaborating on the legislative bargain that Congress reached. By contrast, the Justices often rely on the legislative history accompanying tax statutes to borrow expertise from key committee actors. The Court's use of tax legislative history for expertiseborrowing purposes relates to the distinctive nature of how tax legislative history is produced, featuring regular cross-party and interbranch cooperation that is virtually unimaginable in the workplace law setting. Although most Justices have appreciated the special character of tax legislative history, Justice Scalia remains steadfast in his unwillingness to do so. With respect to the use of canons, Brudney and Ditslear find that the Court makes comparatively heavier use of the whole act rule and related structural canons in its tax majorities. The authors suggest that the Justices may recognize the Internal Revenue Code to be more of a coherent and self-contained regulatory scheme than the series of workplace law statutes scattered across multiple titles of the U.S. Code. As for substantive canons, the Justices are much more likely to invoke tax-based judicial policy norms than to rely on canons grounded in the specifics of workplace law, The authors contend that the Court's use of these tax law canons should be viewed as a derivative form of expertise borrowing. Finally, Brudney and Ditslear explore the special role played by Justice Blackmun in the tax area. They demonstrate how Blackmun's expertise in tax law and his attentiveness to its legislative history anchored the Court's performance for twenty-four years. Since Blackmun's retirement, the other Justices have been less interested in reviewing tax cases and far less willing to use legislative history when they choose to decide such cases. The evidence that familiar interpretive resources play distinctive roles in the area of tax law contributes to a subtler and richer texture for statutory interpretation than is often captured in scholarly debates. At the same time, the authors' results also indicate that the Court since the late 1980s has exhibited greater uniformity in its reasoning in tax law and workplace law cases. Brudney and Ditslear wonder whether the philosophical arguments favoring a more inflexible approach to statutory interpretation are beginning to trump a pragmatic orientation that is more sensitive to differences among particular subject matter areas of federal law.

Envisioning Enforcement of Freedom of Association Standards in Corporate Codes: A Journey for Sinbad or Sisyphus?

James J. Brudney — Tue, 14 May 2013 21:56:51 PDT

Since the 1970’s, multinational corporations (MNCs) in large numbers have adopted codes of conduct declaring their commitment to workers’ rights. These codes, however, do not require adherence to specific labor regulations or standards in a global setting. The MNC record on voluntary compliance has been discouraging, especially in labor-intensive industries like apparel, shoes, and toys, where a global supply chain of contractors effectively controls labor conditions. The persistent gap between aspiration and achievement regarding corporate codes has led to disagreement over their meaning and value. MNCs hope to be judged on the basis of the self-regulatory systems they have established. They believe that codes and accompanying monitoring practices will generate economically profitable good will and also give rise to a legal safe harbor from regulators who must allocate scarce resources among delinquent actors. In light of these ambitious corporate assumptions, it is worth asking whether the application of codes should be subject to outside challenge, and potential improvement, on behalf of putative beneficiaries. This article examines the possibilities for enforcing corporate codes against the MNCs that draft and promulgate them. It first provides an overview of freedom of association (FOA) provisions that appear in more than 25 codes posted on corporate websites. The overview reveals divergent approaches regarding inter alia how much depth and force the FOA commitment contains; whether the same FOA commitment applies to a company’s own employees and its corporate suppliers; and whether the commitment is accompanied by a disclaimer. The article then discusses in depth certain key shortcomings to the codes as self-regulatory operations. It identifies both external and internal obstacles to successful monitoring, including monitoring by independent entities. The article recognizes that private rights of action may carry counterveiling costs, but it contends they may also be an essential complement if corporate codes are to promote freedom of association in effective terms. Finally, the article identifies and briefly analyzes eight potential causes of action to enforce corporate code provisions related to freedom of association. It explores a range of state and federal claims that could be asserted under U.S. law by employees, consumers, or investors. Although there are various obstacles to surviving motions to dismiss, several approaches appear to hold promise. This set of preliminary analyses is meant to encourage greater focus on the need for protection beyond voluntary corporate efforts, and also to deepen the conversation as to which corporate code audiences are best situated to pursue such protection in the courts.

Distrust and Clarify: Appreciating Congressional Overrides

James J. Brudney — Tue, 14 May 2013 21:56:49 PDT

Deborah Widiss continues to make important contributions in an area of statutory interpretation that has been largely neglected: the consequences of congressional overrides. Professor Widiss previously demonstrated how the Supreme Court and lower courts often confine the reach of statutes that purposefully override prior court decisions, thereby reviving aspects of the overridden judicial interpretations as ―shadow precedents.‖ In Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, Professor Widiss addresses the Supreme Court‘s further expansion of judicial power in the aftermath of congressional disapproval. Faced with the override of its textual interpretation in one employment discrimination statute, the Court inferred from this repudiation that it could approach on a clean slate identical but unamended language in a closely related statute. Professor Widiss deftly demonstrates that the Court‘s decision to ―grow a new head‖—ignoring both Congress‘s purpose when enacting the override and the Court‘s own shadow precedent when construing the same language—is unjustified in separation-of-powers terms and subversive from a rule-of-law perspective. Professor Widiss‘s analysis focuses on Supreme Court decisions in the employment discrimination area. As she explains, the hydra and shadowprecedent problems are especially likely to arise in this field for two reasons: numerous statutes addressing parallel antidiscrimination concerns tend to be interpreted in pari materia, and overrides occur with some frequency.5 But the Supreme Court‘s willingness to minimize or distort the meaning of congressional overrides extends to other areas of law as well.6 My Response adopts a Congress-centered view of overrides. It starts from a core premise that these overrides signify Congress‘s distrust of the Court. Once Congress concludes that the traditional ―faithful agent‖ norm for construing a statute is inoperative, the breakdown has important implications. When considering the meaning of an override enactment, judges should discount the value of court-centered interpretive assets such as ordinary language analysis or the canons of construction. Indeed, judicial reliance on these textualist resources is often associated with overrides in the first instance. Rather, courts construing new text that reflects Congress‘s disapproval of prior judicial interpretation should pay particular attention to congressionally generated evidence explaining the nature and contours of that disapproval. This evidence may appear in a textual statement of findings and purpose, but it is more likely to be part of a conference report, committee report, or other legislative history. Professor Widiss‘s proposed solution to the hydra problem calls for courts to adopt a canon-like rebuttable presumption, applying Congress‘s signaled meaning to shared language ―so long as the [text in question] can reasonably bear‖ the meaning Congress has identified. In the override setting, this approach seems unduly deferential to the judicial branch. Professor Widiss recognizes that it is hazardous to trust that courts will undertake responsible statutory interpretation on an issue where they have already acted irresponsibly in Congress‘s eyes. My proposal would tether courts more closely to Congress‘s expressions of purpose and intent when construing its amended text. As explained below, legislative history accompanying congressional overrides is especially likely to reflect Congress‘s institutional views. Any risk that the formulation of these congressional expressions will be unrepresentative or insincere is minimal and can be readily controlled. Moreover, legislative record evidence accompanying override text aptly illustrates why the larger debate about legislative history as an interpretive resource should focus on which factors lend it greater or lesser probative weight, rather than on shopworn arguments about threshold admissibility. Part II explains the interbranch implications of overrides, and why Congress‘s attitude toward a court it has overridden is appropriately one of distrust. Part III considers the options before Congress for alleviating its distrust by clarifying any ambiguity or silence regarding the scope of an override. I agree with Professor Widiss that textual clarification is generally not a realistic alternative. I then discuss why canons or presumptions are no more practicable, and why purposive statements and legislative history— subject to adequate review—should be the preferred option.

To Strike or Not to Strike (Review of Julius Getman, The Detrayal of Local 14: Paperworkers, Politics, and Permanent Replacements)

James J. Brudney — Tue, 14 May 2013 21:56:47 PDT

This is a book review of Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements (1998)

Judicial Hostility toward Labor Unions--Applying the Social Background Model to a Celebrated Concern

James J. Brudney et al. — Tue, 14 May 2013 21:56:46 PDT

Brudney, Schiavoni, and Merritt address an important debate dividing lawyers And political scientists: To what extent do extra doctrinal factors such as political party, gender, and professional experience influence judicial decision making? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of Judicial bias. By including every federal court of appeals decision applying the Act over a seven year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decision making. These include a strong interaction between gender and political party, the influence of prior experience representing management clients under the Act, and associations based on race, religion, and educational background At the same time, the authors place those influences in contex4 suggesting the complex interweaving of doctrine and personal background in shaping judicial decisions.

Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals

Deborah J. Merritt et al. — Tue, 14 May 2013 21:56:44 PDT

Nearly four fifths of federal court of appeals opinions are unpublished. For more than 25 years, judges and scholars have debated the wisdom and fairness of this body of "secret" law. The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value. Despite continued controversy over unpublished opinions, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and multivariate statistical methods, we were able to identify the factors that predict publication. Some of those factors, such as a decision to reverse the agency, track formal publication rules. Others, such as the number of judges on the panel who graduated from elite law schools or the number with expertise in the disputed subject, are more surprising. In addition, we discovered substantial evidence of partisan disagreement within unpublished opinions, suggesting that those cases are not as routine as publication rules suggest. These empirical findings should guide policy and constitutional decisions about the future of unpublished opinions.

Dissing Congress

Ruth Colker et al. — Tue, 14 May 2013 21:56:42 PDT

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and the "phantom legislative history" approaches. Under the crystal ball approach, the Court has effectively penalized the enacting Congress for having failed to create a detailed legislative record, even though such a record requirement could not reasonably have been anticipated at the moment of legislative deliberation and enactment. Under the phantom legislative history approach, the Court has expressed interest in considering legislative history when assessing constitutionality, but then has established and applied a legal standard for review that even a detailed legislative record could not possibly satisfy. In Part I, we trace the development of this recent judicial activism in which disrespect for Congress is a fundamental element. In Part II, we describe the Court's decisions in Kimel v. Florida Board of Regents and United States v. Morrison as examples of the crystal ball approach, and discuss the implications of this methodology for the internal operations of Congress and for the exercise of federal legislative powers. In Part III, we consider Kimel and Morrison as also illustrating the phantom legislative history approach and discuss the significant implications of this methodology for the relationship between the courts and Congress. Finally, in Part IV we invoke these two methods to help explain the contrast between the Court's asserted interest in legislative recordbuilding in the constitutional law setting and its simultaneous disdain for legislative history when construing statutes in nonconstitutional settings. Part IV also addresses how the Court's legislative history approach, especially in the Section Five area, may actually threaten traditional federalism objectives regarding the role of Congress.