Volume 40, Issue 2

Article

The Children of Nonmarriage: Towards a Child-First Family Law

Pamela Laufer-Ukeles

Although family law has traditionally focused on marriage as the framework for supporting children, the modern family is increasingly developing outside of marriage.  As such, we must consider whether family law does enough to support the children of nonmarriage, who have less resources available to them, receiving less parenting time and less child support and suffer poorer outcomes on a range of wellbeing indicators.   A wave of suggested reforms has posited that the way to customize family law to the context of nonmarriage is to focus on solidifying co-parent relationships through recognizing a co-parent legal status and awarding rights and imposing obligations as between biological parents more fairly, thereby placing “marriage-like” trappings on unmarried parents.  In this article, I argue that this approach misses the opportunity to focus on the needs of children first and directly instead of expecting benefits to trickle-down from stronger relations between co-parents.  Given the different circumstances involved, I caution against the impact of potential negative side effects of such reforms for children.  Instead, I focus on how the law can do more to support children of nonmarriage directly, by state action focused directly on supporting children, and by legal recognition and facilitation of additional parental figures who provide care and support alongside traditional parents.  The expanded parental web to benefit children of nonmarriage that I envision is made up of direct state benefits and support for children, as well as stepparents, birth parents, grandparents, and functional parents working alongside traditional parents to provide impactful care for children in an inclusive and stratified manner that preserves the dominance of the primary caregiver.  This framework focuses on the way the law can support children directly and by facilitating cooperation among a variety of parental figures, perhaps idealistically, leaving aside concerns about fairness and equality in adult-centered disputes.  Such idealism, however, better reflects the reality of how care is provided outside of marriage and is perhaps more practical than legal mechanisms that impose the trappings of marriage on those who are unmarried. 

Article

Temporal Buffer Zones: The Constitutional Case for Regulating Political Speech Immediately Prior to Elections

Kiel Brennan-Marquez & Douglas M. Spencer

The First Amendment forbids most limits on political speech, but it permits buffer zones around polling stations on Election Day. This exception to the deregulatory thrust of election speech doctrine is striking, and strikingly under-theorized. In what follows, we excavate the core principle that underpins the buffer zone exception—decisional solemnity—and we argue that, properly understood, the same principle justifies the use of temporal buffer zones: stricter-than-normal regulations on certain types of political speech in the immediate vicinity of an election. Voting, we argue, is an act different in kind from the deliberation that precedes it. Accordingly, governmental efforts to ensure the sanctity of voting can survive exacting First Amendment scrutiny in a manner that similar efforts to quell or influence expression throughout the campaign process cannot. For all the case law (and scholarship) arguing that campaigning should be insulated from legal control, there is an under-appreciated interest in subjecting voting—as distinct from campaigning—to legal controls that help to guarantee its solemnity. Physical buffer zones are paradigmatic. Temporal buffer zones are a natural extension.

Article

The Jury Veto

Stephen E. Henderson

While the American civic religion is to be distrustful of government, feelings of discontent regarding our systems of criminal investigation and adjudication feel historic. And while those systems are capable of great carnage en route, the endgame is, ultimately, criminal punishment. Yet before punishment can be imposed, every prosecution—and therefore every defendant—is meant to encounter a potential “circuit breaker”: the jury. I propose that we re-inject this democratic voice into our criminal adjudications, but through an entirely novel structure: the defendant (and perhaps the prosecutor) would have the choice of invoking a jury empowered to ‘veto’ any judicial sentence. By carefully designing the ex post system, including to discourage over-invocation, we could provide more democratic results in individual cases, hold prosecutors to their charging threats, and obtain a meaningful sense of whether—as many of us believe—our institutions of criminal justice are dangerously out of touch with popular conceptions of what ought to be.

Article

DNA Dilemmas

Sean Hannon Williams

This Article introduces a set of novel stories rooted in DNA surprises. As consumer DNA testing becomes more widespread, more people will accidentally discover that a stranger is their genetic parent. Many feel that their birth certificate is now a “lie” and want to correct it. These stories provide a new lens through which to examine the definition of parenthood, who should wield that definitional power, and the relationship between identity and recognition. DNA testing lays bare the intractable conflict between different definitions of parentage—functional, intentional, legal, and genetic—and seemingly demands that we choose one to prevail. This is the DNA dilemma. This Article argues that, after the relevant “child” becomes an adult, the state can and should yield its monopoly over the definition of legal parentage and allow each adult-child to resolve this deeply personal dilemma for herself. Along the way, this Article introduces post-majority parentage as a new conceptual space, seeks to reorient existing scholarship on adoption and donor-conception, defends a novel identity interest in the official recognition of parent-child relationships, and upends common intuitions that birth certificates simply record facts.

Note

Reconsidering Feres: A New Framework for Military Sexual Assault

Sarah Ann Purtill

Since the Supreme Court’s 1950 decision in Feres, military servicemembers have been largely unable to recover for their injuries under the Federal Tort Claims Act. This Note proposes that courts read an exception to Feres where the Department of Defense has violated its own mandatory rules and regulations. This reading is consistent with the Court’s precedents; resolves several enduring doctrinal ambiguities; and creates a pathway to justice for victims of military sexual assault.

Policy Article

Federal Retirement Savings Accounts Can Build Wealth, Fight Poverty, and Give American Seniors Dignity

Michael Tubbs

Today, we don’t need flowery language from our elected leaders, or a new declaration of war against poverty. President Biden took a bold step by enacting a Child Tax Credit that drastically slashed child poverty. Now we need him and others to recognize that leaving millions of seniors in poverty is a policy choice — and so is lifting them up.