Category: Family Law

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Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

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Child Safety, Part II

In my last post, I introduced a set of studies that suggest that parents and nonparents alike prefer to invest about twice as much in child safety as adult safety. For purposes of this post, I want to take that descriptive claim as true and ask: What justifies that differential treatment?

One answer is simply that we should respect preferences (almost) regardless of their content. But that seems too quick.

Below are a few thoughts on how we could justify greater protections for children.
I invite readers to add to this preliminary list.

  • Children have more life years ahead of them to live with permanent injury, and lose more life years if they die. This is likely part of the story, but it is an incomplete defense of the data because focusing on life years would not justify providing children with extra protection for temporary injuries like spending one year in the hospital or catching the common cold.
  • Perhaps everyone deserves an opportunity to achieve certain milestones in life, like growing up and falling in love, that often occur during adolescence and young adulthood. To the extent that life years leading up to those milestones are more valuable, we might want to offer younger people more protection. We might also want to ensure that temporary injuries do not impede those opportunities. (Something like this view might be at work here, where one couple recently wrote up a bucket list for their terminally ill infant and went to great lengths to ensure that they checked off each entry.)
  • Children might deserve an open future.

Stay tuned for Part III, where I will discuss what these empirical patterns might mean for tort law …

 

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Child Safety, Part I

Parents: Do you invest more in your child’s safety than your own? Less? Roughly the same amount?

I’ve been pondering these questions lately. I have numerous friends who have purchased safer cars once they became parents, or suddenly took an interest in the finest of fine print on warning labels. These anecdotes suggest that we invest more time and money in child safety compared to adult safety.  Interestingly, more rigorous empirical examinations support these anecdotes. Those data suggest that parents invest about twice as much in protecting children as they do in protecting themselves, even when both are facing the same probability of experiencing the same harm. Parents are not alone in this preference. Both parents and nonparents appear to want governments to invest about twice as many resources in protecting children as adults. Here’s some of the data:

Untitled

Readers: Does this ring true?

Stay tuned for what these preferences might mean for tort law…

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Prosecutors vs. Divorce Court Judges

What do prosecutors and divorce court judges have in common?

Although this sounds like the start to a lawyer joke, I think examining the two groups together can yield interesting insights. One commonality is their wide and essentially unreviewable discretion.   Prosecutors can decline to charge altogether or can choose which charges to bring.   Divorce court judges often decide based on broad notions of fairness how to split a couple’s entire life savings, and also have power to prohibit parents from having overnight guests when they have physical custody of their children.

The literature on prosecutors is full of potential solutions to the perceived problems of unchecked discretion. One solution is to provide more judicial review. This has been a popular proposal in family law as well, where commentators seek more appellate review of trial court discretion. In my previous post, I explored ways of incorporating community input into family law decisions. This could be framed as roughly analogous to calls for various forms community policing or notice and comment sentencing.

Other reforms call on prosecutors to voluntarily develop guidelines. I want to explore what that might look like if translated to the family law context. Could judges band together and create local guidelines? The answer appears to be no. Below the fold I argue that, contrary to what most appellate courts have held, there are reasons to think that individual judges should be allowed to publically announce their personal rules of thumb and groups of judges should be allowed to publically create group rules of thumb.

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Sex (and Money) in the City

Thanks to Solangel, Dan, and the rest of the folks at Concurring Opinions for inviting me to be a guest blogger this month!

A few weeks ago, an Oklahoma judge was tasked with dividing Harold and Sue Ann Hamm’s $2Billion marital estate. And the judge’s only guidance was to divide it in any way that was, in his mind, “fair,” “just,” and “reasonable.”  Billion dollar divorces like this one highlight long-known problems with divorce law. Namely, that courts have wide and almost unreviewable discretion over many aspects of a divorcing couples’ lives.  When I ask students in my family law class how they would divide a particular marital estate, I generally get a lot of variation.  Many people choose 50%-50%, a substantial number choose 66%-34% or 75%-25%, but there are always a lot of students who choose more extreme divisions, like 90%-10%.  This highlights the lottery-like aspect of many family law issues.

But what can be done? I want to float a controversial idea, and then very briefly explain why it deserves serious attention.

Here’s the idea: Let local governments (like city councils) weigh in on how local judges should exercise their discretion.

The rest is below the fold…

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ICWA and Military Families

I want to thank Solangel for having me here at the blog for the month of May. I’ve enjoyed writing posts about our work at the Indigenous Law and Policy Center.

Yesterday I was part of a roundtable discussion at Law and Society with a number of Indian law scholars who all talked for about 10 minutes on their current projects. The eight projects covered everything from the oil spill clean up process to ongoing treaty rights cases to the effect of extractive industry development on human trafficking. All of them were grounded in specific needs for tribes and tribal attorneys. It was an impressive panel.

I spoke about my latest writing project, the intersection of the Indian Child Welfare Act and military families. In Adoptive Couple v. Baby Girl, the Supreme Court based much of its discussion on the biological father’s “abandonment” of his child. Nowhere in the opinion did the Court mention the father’s military service and his year-long deployment to Iraq.

The law that prevented the adoption from moving forward during the father’s deployment, the Servicemembers Civil Relief Act, was amended in 2008 to include any child custody proceeding in the cases that could be stayed when a servicemember cannot be present at the court hearings. However, during the time the father was deployed, the baby stayed with the potential adoptive couple. In a family law situation, the length of a child’s placement receives increasing weight the longer the placement. While the South Carolina courts found that the child should be placed back with her father under the Indian Child Welfare Act, there was reluctance to do it based on the length of time the potential adoptive couple had had the baby. Cases involving service members need to be stayed, but the stay does not contemplate the ramifications on a family law case like Adoptive Couple.

Native people serve at a proportionally higher rate than other groups. In the case of active duty service members, they have the possibility of having to ask a state court to enforce not one relatively unknown federal statute, but two. Investigating how these play out in the case law, and also how the active efforts to preserve the Indian family (as required by ICWA) can be defined include specific services for Native veteran parents are two of the areas I’m working on this summer.

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UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)
Articles

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480

 

Comments

Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548

 

 

 

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BOOK REVIEW: Carbone and Cahn’s Marriage Markets: How Inequality Is Remaking the American Family

Marriage Markets 01Marriage Markets: How Inequality Is Remaking the American Family. By June Carbone and Naomi Cahn (published by Oxford University Press May 2014).

Marriage Markets: How Inequality Is Remaking the American Family, just out from Oxford University Press, is a sweeping chronicle of the intersection of family demographics and family law—and the ways in which class divides matter.

June Carbone, the Robina Chair in Law, Science, and Technology at the University of Minnesota Law School, and Naomi Cahn, the Harold H. Greene Professor of Law at George Washington University Law School, argue that “marriage [is] a defining element in the class divide remaking America.” The central premise of Marriage Markets is an explanation of how the top and bottom economic classes are spinning in different directions in terms of family formation. Carbone and Cahn argue that increasing income inequality influences the markets for marriage. In the top economic quintile, four out of five couples are married; in the bottom quintile, less than one in five couples are married.

Greater education and income is correlated with a later time of first marriage, and, Carbone and Cahn note that “one of the biggest changes in mating preferences since 1960 is that men care three times as much as they once did about the income of a potential mate.” Yet, the employment arena is changing for men—more highly educated men have gained economic ground, while those with just a high school education or in blue collar jobs have lost ground. In all but one group in American society, marriage rates have fallen. “The only group in American society whose marriage rates at ages 30-50 have grown are the top five percent of American women by income.” The nature of marriage is changing too. More married women have careers than in previous era; more men spend increased amounts of time on childcare and housework.

Carbone and Cahn describe these developments in terms of the concept of “marriage markets.” Many scholars from all political and philosophical persuasions object to the very idea of treating intimate relationships as something that should ever be the product of calculation or exchange. Yet, most also agree that supply and demand affect “price.” Carbone and Cahn add that sex ratio imbalances produce virtuous and vicious cycles that influence expectations, alter behavior, and ultimately transform cultural practices.   Sociologists Marcia Guttentag and Paul Secord demonstrated in the eighties, in an influential book on sex ratios, Too Many Women? The Sex Ratio Question, that relationships are in fact the product of a market. If the men outnumbered the women in a given group, Guttentag and Secord argued, men competed among each other to land the “best” women. Women in turn tend to select for some mix of worldly success and good behavior, so an excess of men tends to produce “virtuous cycles” in which men compete to satisfy women by working hard, remaining faithful, and investing in their children. The fact that men outnumber women among high earners eager to pair with each other, Carbone and Cahn argue, provides an explanation for why the marriage rates at the top have remained relatively stable and why divorce rates remain relatively low.

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Now you can insist on control of your material. You can insist on veto power over everything; down to casting and choice of directors and script approval, you can insist on all those things. J.K. Rowling insisted on all those things. And J.K. Rowling got all those things because there were enough people interested in that. Now if you’re not J.K. Rowling, and you insist on all those things, the studios are not going to be very interested or less studios will be interested in it so you’ll get less money or none at all. Or alternatively, you can not insist on everything and you can just sell them the book and what they do with it is what they do with it and you have to live with it. You no longer have approval over anything, you no longer have…you know what I mean? And those are the two extremes. In between of course there’s a vast area of shades of gray.

— George R. R Martin

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George R. R. Martin on Copyright, Inheritance, and Creative Control

He cares much more about French dynastic history than you do.

He cares much more about French dynastic history than you do.

This is Part 3 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For Part 2, click here. For the audio file, click here.

HOFFMAN: Yeah, but you just generally right. The trope something that really speaks to folks. I guess maybe that raises a question about your fans generally. You’ve obviously got a huge fan base and I’ve been reading a little bit about them. One question that comes up a bunch of different times is fan fiction and what do you think about fan fiction?

MARTIN: I’m opposed to fan fiction.

HOFFMAN: Why?

MARTIN: Well number one, its copyright infringement and it can potentially endanger my copyrights and my trademarks if I were to allow it. Also, yes maybe it’s a gesture of love that they love your characters and they love your world and all that but it’s not the kind of gesture of love that I really want. And for aspiring writers and some of these people, sure it’s a wide range of fan fiction writers, some who are terrible. Some of them are actually talented writers. I think for the talented writers it’s particularly tragic because they should be doing their own material.

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To Define the Beginning of Human Life or Not, That Is the Question

Twice a month I meet with some of my students for a critical reading.  In our last January meeting, we decided to commemorate Roe by re-exploring Judith Jarvis Thomson’s  seminal article A Defense of Abortion. Thomson’s defense of induced abortion by exploring our moral duties in the unrealistic case one found oneself kidnapped and plugged in to a virtuous violinist who is sick and needs one’s kidneys for nine months in order to heal has been highly criticized. Nonetheless, every time I read it or discuss it, I find how enlightening her thought experiment still is, as it confronts us with our set of moral beliefs and its incongrueties with our policy stances. Moreover, it makes me always ponder about our lack of a well-thought and coherent abortion regulating scheme.  But that is a topic for a different post. Today, I would like to concentrate on a related matter that stemmed from my discussion of Thomson’s article with my students.

By the end of our conversation my students and I were inquiring whether it was possible to assert a defense of stem cell research/therapy even taking for granted the right of life of the embryos, as Thomson did in her paper. It seemed obvious for almost all of us that using embryos for those purposes would be considered a blatant deprivation of the embryo’s right to life and an impermissible use of another person’s body; and thus, could not be sustained under Thomson’s argument. So we decided to try to come up with a scenario similar to Thomson’s violinist that could aid us in exploring the moral adequacy of stem cell research/therapy.

An appropriate thought experiment eluded our not so brilliant minds. We did not want to come up with a fallacious and common place thought experiment such as the one of the burning building test  in which one is forced to decide who to rescue first: twenty 8-cell embryos kept in a freezer or a baby in peril. We were not looking to formulate an experiment tilted to one side like the burning building test, in which the “incomplete human character” of the embryo is made self-evident by the “inescapable instinct” to rescue the “actual” human being. However, the truth is that it is quite difficult to come up, in a couple of minutes, with a reasonable possible scenario in which all the circumstances of stem cell research/therapy are replicated in a way that could sensibly help us assess our moral agency.

First, we would need to come up with a scenario in which we have a “human being” in a permanent frozen state (e.g. a cryogenized virtuous violinist) in which the conditions necessary for a successful life require a willing human host that is either related to the cryogenized violinist or has the authorization of his guardian to serve as a host for nine months.  Second, we must come up with a particular circumstance (e.g. a military operation) that would force the guardian of the cryogenized violinist to choose between using the frozen body to help in the recovery of a sick non-cryogenized human being (e.g. a  young Science Nobel laureate) whose only real, feasible and cost efficient chance to a healthy life is using that frozen body at the expense of eliminating all possible chances of an uncertain future life for the cryogenized violinist or leaving the cryogenized violinist frozen for an indefinite period of time and allowing for the sick non-cryogenized Nobel laureate to die. Finally, we would need to come up with the circumstances that led the cryogenized violinist to be treated as a surplus human being and at the same time be treated as the raw materials for the creation of future equally virtuous violinists (e.g. the practice of cloning virtuous musicians).  Furthermore, the example would need to consider the possibility of making the cryogenized violinist for the sole purpose of healing the sick non-cryogenized laureate (e.g. the possibility of the world coming to an end if the Nobel laureate does not find a solution to the problem before he dies from her sickness).

The end result is a very absurd, unrealistic and perhaps too intricate thought experiment.  Yet, exploring the limits of such an experiment may be a possible way to coming up with a defense of stem cell research/therapy even when one grants the right of life of the embryos.  Nonetheless, I would like to pose that the absurdity and illusory nature of these thought experiments suggest that we should face the inevitable: we must delimit when human life begins if we truly would like to come up with a moral/ethical regulation of stem cell research/therapy. This inescapable moral question is more evident when we contrast our legal stances and nation’s practices on issues like torture, war, death penalty, abortion, euthanasia and justification and necessity defenses.  The system is manifestly incoherent.

I do believe that a sensible answer will only come when we legally embrace the fact that life – and by extension human life – exists in a continuum. Law should echo that reality. A coherent and ethical sound system can only arise after we legally recognize that there is a point in that continuum in which life becomes human and that there are different stages before that point in which life is a subject of certain rights but not the same rights a human life is a subject thereof. Laws should define that moment and those stages. There is no moral reason to avoid doing so. As there is no ethical rationale either to treat totipotent, pluripotent, multipotent, oligopotent, unipotent cells, fully developed human beings not capable of living on their own, and born human beings in the same way.  Furthermore, our history and legal system have always made distinctions on how we treat the right to life of human beings based on particular deontological assumptions.

Our inquiry into how to regulate stem cell research/therapy should not be made under the assumption that embryos are in fact human beings and subjects of the same rights. A valid answer to this recent human reality must be based on a rigorous analysis of moral questions such as: 1. When does a life become a human life?; 2. Which type of rights is a non-human life entitled to?; 3. Are there different stages of a non-human life?; 4. Are those stages deserving of a differentiated right treatment?; 5. What are our moral duties to a human life?; 6.  What are our moral duties to a non-human life and it corresponding stages?; and 7. Under which circumstances are we relieved from those duties to human and non-human lives? These questions should be guiding our legislative process regarding scientific inquiries and not biased assumptions as to what constitutes human life.