Sexual Orientation,Gender Identity,and Adoption Law

The legal landscape surrounding adoption by lesbian, gay, bisexual, transgender, or questioning/queer (LGBTQ) parents continues to be dynamic and variable across the United States, yet the topic is generally viewed favorably by Americans and increasing numbers of LGBTQ adults are becoming adoptive parents. In this essay, we explore intersections of sexual orientation, gender identity, and adoption law. We discuss connections between parenting (including adoption) and marriage rights, highlight the influence of varying legal contexts and discrimination for LGBTQ adults who pursue adoption (including case examples from Florida after the gay adoption ban was lifted), and incorporating the perspectives of adoption‐agency personnel working with LGBTQ clients.     

Changing Patterns of Legal Representation in Divorce: From Lawyers to Pro Se

Governmental assistance for legal representation in civil cases is far greater in the United Kingdom than in the United States of America. This article explores the extent of legal support for low–income Americans, particularly in the area of family law. Examination of the data on self–representation across the United States and over time shows decreased reliance on lawyers. Drawing on institutional and individual perspectives, the article then explores why individuals choose to represent themselves in divorce. What do lawyers add to a divorce besides cost? The article suggests patterns of lawyering depending upon the lawyer and the resources of the client. While some pro se individuals may thrive in the divorce process without the need of a lawyer, others are disadvantaged by the lack of services available to them. The matching process between case needs and legal representation does not work.     

Law and Family Formation Among LGBQ‐Parent Families

This article addresses how the law affects family formation among families with lesbian, gay, bisexual, and queer (LGBQ) parents in the United States. Our discussion draws on a socio‐legal approach to law that focuses not only on the law on the books (what we refer to as “legal barriers”) but also on issues like how the law is practiced, how people experience the law in everyday life, and how the law serves as an interpretive framework through which people understand themselves and their families (what we refer to as “social barriers”). In our review, we highlight how attorneys can play a role in valuing and advancing rights for LGBQ‐parent families and LGBTQ prospective parents.     

Bonnieview v. Woodmont: Court Sorts out Environmental Liability between Homeowners and Developers

Bonnieview Homeowners Ass’n v. Woodmont Builders, LLC,—F. Supp. 2d—, No. Civ. A. 03CV4317(DRD), 2009 WL 2999355 (D.N.J. Sept. 22, 2009), was a suit brought by a homeowners’ association and its individual members against the developers of the property where their homes were located and the municipality. In a recent opinion, the United States District Court for the District of New Jersey made several important rulings applying federal and state environmental statutes and common law. First, the developers were potentially liable to plaintiffs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), where their soil grading and stockpiling activities distributed previously contaminated soil around the site, which had been used as a fruit orchard. Second, however, the court prohibited plaintiffs from recovering under CERCLA or New Jersey's Spill Compensation and Control Act (Spill Act) because they had not incurred any environmental cleanup costs compensable under the two statutes. Third, plaintiffs were innocent purchasers not subject to CERCLA liability under a 2002 amendment to the statute. A negligence claim against the municipality failed, however, because the municipality owed no duty of care to plaintiffs. The court also assessed plaintiffs' other federal and state statutory and common law claims.     

The Politics of a New Legal Regime: Governing International Crime through Domestic Immigration Law

Through an analysis of a unique and understudied unit within the US Department of Homeland Security (DHS), the Human Rights Violators and War Crimes Unit (HRVWCU, or “the Unit”), this article addresses the following theoretical and policy question: once someone has been admitted to the United States and granted permanent residency, or even citizenship, how does the law facilitate the reversal of that decision based on acts committed long ago and far away? We argue that the HRVWCU has created a significant new way to govern immigration through crime—specifically international crime—while simultaneously trying to ensure justice for mass atrocities through immigration law. In offering an overview of the Unit's origins and approach in blending international criminal law, domestic criminal law, and immigration law, we show how this Unit reflects an expansion of crimmigration in the United States and abroad. In order to illustrate the dilemma of internationalized crimmigration, the article focuses on the Unit's cases related to war crimes in Liberia and Bosnia, which have two very different (at least from the perspective of international criminal law) types of alleged perpetrators: those who allegedly gave orders and those who allegedly followed orders.     

Blurred vision: How supreme court FOIA opinions on invasion of privacy have missed the target of legislative intent

The framers of the Freedom of Information Act believed that in order to make informed decisions concerning self‐rule in the democracy, citizens needed access to government information. However, the law also acknowledges the importance of protecting privacy—two of the FOIA's exemptions allow federal agencies to withhold information that would invade the privacy of individuals. The purpose of this article is to explore the legal conflict between an individual's right to privacy and the public interest in disclosure of government information. In an examination of seven United States Supreme Court decisions on this subject, this article questions whether the Court has fairly balanced the conflicting values of access and privacy within the guidelines established by Congress in the FOIA.     

Facebook Threats: the Missed Opportunities of Elonis V. United States

When the Supreme Court of the United States reversed the conviction of a man who posted vile, threatening messages on Facebook, it concluded that the federal law used to prosecute him lacked the necessary level of intent. In effect, the Court stopped there, saying it was “not necessary to consider any First Amendment issues.” In considering the Court's adoption of judicial minimalism in Elonis v. United States, this article suggests that, even within that framework, there existed chances to explore relevant issues. This included advancing a better understanding of the seriousness of cyber threats. In spite of embracing the importance of context in evaluating this and other cases, the Court rejected the opportunity to provide important perspective. Proscribing true threats does not compromise free speech values; it enhances them. The ideas of free speech and civilized speech can coexist.,     

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND THE NEED FOR ITS INCORPORATION INTO A BILL OF RIGHTS

In this article I discuss the failure of most democratic countries to accept or properly implement the UN Convention on the Rights of the Child, despite, except in the case of the United States, having ratified it. I consider the domestic implementation of treaties. I discuss, from an Australian perspective, that country's failure to enact a Bill of Rights and argue that children in Australia have suffered as a result. I also discuss judicial approaches to international law and compare the situation in countries such as the United States, the United Kingdom, Canada, and New Zealand and suggest that even in those countries that do have a Bill of Rights, it is not oriented toward children and therefore does not properly recognize their rights.     

New Battles and Battlegrounds for Mandatory Arbitration After Epic Systems,New Prime,and Lamps Plus

The Supreme Court's recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems Corporation v. Lewis upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus, Inc. v. Varela rejected a state law interpretation of a contract provision to find that parties to an employment contract intend individual arbitration absent reference to group arbitration. A unanimous Court in New Prime v. Oliveira interpreted the FAA to include independent contractors under the transportation worker exemption, reinvigorating the battle over what it means to be engaged in interstate commerce to qualify for the exemption. These decisions resolved some disputes about the breadth of the FAA, but other questions remain. In the wake of Epic Systems and Lamps Plus, state courts and legislatures are testing the boundaries of the FAA's saving clause, with limited success. Confidentiality provisions, frequently associated with arbitration agreements, may unlawfully interfere with employees’ federal labor law rights. This article recommends that Congress amend the FAA to address these issues by excluding all workers engaged in interstate commerce, not just transportation workers, because the Court has strayed far from the original intent of the Act—to enforce commercial agreements in which the parties had equal bargaining power. State legislation also should provide guidance on what makes arbitration voluntary and fair, and provide a choice to employees on collective action, forum, and confidentiality.     

Game of courts: A tale of principles and institutions

The ontological, terminological and conceptual confusion that surrounds the concept of ‘general principles of European Union law’ is far from being resolved. The constitutional interlocutors—the Court of Justice of the European Union and the highest courts in Member States—have at times fiercely argued about their different understanding of general principles, whereas European legal scholarship has failed to convincingly clarify the intricacies surrounding this source of law. Instead of engaging with a more abstract, theoretical question of what general principles are, this paper reflects on the practical, functionalist question: how are they used by the Court of Justice and what are some of their functions and implications? To do so, it enquires into contextual, institutional and strategic features of the Court's behaviour and jurisprudence and responses of the highest national judiciaries to this jurisprudence. The aim is to offer an alternative account of the Court's jurisprudence on general principles.     

The Canadian Legal Profession

This article seeks to weave together the limited information available on the legal professions of the Canadian provinces. Following the same general format as the other comparative studies in this series, it also offers several critical observations of special interest to readers in the United States, whose experience the Canadian bar so closely tracks. The phenomenon of stratification—familiar to American observers—is clearly visible in the Canadian legal profession. Combined with other centrifugal forces, it threatens the unity of a profession which, until recently, has managed to preserve a high degree of cohesion in training, ideology, and institutional structures. On the other hand, in certain respects, the Canadian experience seems to differ from that of the United States, especially in the strength and peculiar structure of publicly funded legal aid schemes, in the profession's continuing formal autonomy and relative immunity from public regulation, and in its long-lasting attachment to apprenticeship as a necessary stage in professional formation. These and other convergences and divergences between the two countries raise questions of general significance: To what extent do the similarities between Canada and the United States verify the assumption implicit in the theoretical literature (principally Abel, Freidson, and Larson) that there is an empirical referent for something called legal professionalism? And to what extent do the differences suggest that containing societies contribute distinctive characteristics to their legal professions, whose qualities are therefore highly contingent?     

Public Experiences of Police Violence and Corruption in Contemporary Russia: A Case of Predatory Policing?

“Predatory policing” occurs where police officers mainly use their authority to advance their own material interests rather than to fight crime or protect the interests of elites. These practices have the potential to seriously compromise the public's trust in the police and other legal institutions, such as courts. Using data from six surveys and nine focus groups conducted in Russia, we address four empirical questions: (1) How widespread are public encounters with police violence and police corruption in Russia? (2) To what extent does exposure to these two forms of police misconduct vary by social and economic characteristics? (3) How do Russians perceive the police, the courts, and the use of violent methods by the police? (4) How, if at all, do experiences of police misconduct affect these perceptions? Our results suggest that Russia conforms to a model of predatory policing. Despite substantial differences in its law enforcement institutions and cultural norms regarding the law, Russia resembles the United States in that direct experiences of police abuse reduce confidence in the police and in the legal system more generally. The prevalence of predatory policing in Russia has undermined Russia's democratic transition, which should call attention to the indispensable role of the police and other public institutions in the success of democratic reforms.     

Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.     

“Going to Law”: Reflections on Law,Religion, and Mitra Sharafi's Law and Identity in Colonial South Asia

This essay explores religion's need for law, comparing the story told in Mitra Sharafi's Law and Identity in Colonial South Asia (2014)—about the virtual hijacking of British colonial law to serve the communal religious needs of Parsis in colonial India—to other contexts in which secular and religious legal systems have built symbiotic relationships, including in the United States and Thailand. It concludes by urging a reweaving of religious and legal histories after the critique of secularism and its shadows, separationism, and antinomianism.     

Regulatory Science and the Data Quality Act

The importance of data quality was highlighted in an amendment attached to a 2000 law enacted by the 106th U.S. Congress. The law known as the “Data Quality Act” or the “Information Quality Act,” mandated that the Office of Management and Budget (OMB) issue guidance to federal agencies for “ensuring and maximizing the quality, objectivity, utilility, and integrity of information (including statistical information) disseminated by federal agencies.” In turn, OMB required more than 90 federal agencies such as the United States Environmental Protection Agency (EPA) to implement data quality guidelines. These guidelines have created a rigorous, if not rancorous, debate within the regulated community. This paper will provide a brief synopsis of the evolution of the Act, discuss how the Act and scientific uncertainty interrelate, and review the status of the Act's petition process for correcting government disseminated information.     

Transformation: the Progression of Immigration Petitions for Transgender Spouses

U.S. citizens who marry foreign nationals may petition for their spouses so that the couple can reside permanently together in the United States. The guidelines set forth in the U.S. Citizenship and Immigration Services Adjudicator's Field Manual provide guidance to immigration officials for determining whether to grant or deny spousal petitions. Previously, the Adjudicator's Field Manual imposed a requirement that transgender individuals undergo costly and dangerous sex reassignment surgery in order to qualify as married for the purposes of a spousal petition. However, revisions to the Adjudicator's Field Manual issued in April 2012 provide transgender binational couples the opportunity to remain together in the United States without forcing one partner to undergo sex reassignment surgery. Given the history of discrimination against transgender individuals under U.S. immigration law, these revisions are a significant step in equality for transgender couples. Although these revisions provide many transgender binational couples with a means to remain together in the United States, this Note proposes that, to continue on the path toward equality for transgender couples, special guidelines should not be applied to marriages involving transgender partners if their marriage is deemed a valid heterosexual marriage in the state where solemnized. The goals of U.S. immigration law and compliance with the federal definition of marriage can be achieved without implementing individualized guidelines for transgender binational couples.

Key Points for the Family Court Community:
• Transgender spouses of a binational couple should not be subjected to additional guidelines when submitting spousal petitions that, if granted, would afford the couple the opportunity to reside together in the United States
• Transgender individuals should not be subjected to disparate treatment solely because the U.S. Citizenship and Immigration Services seeks to enforce discriminatory provisions of the Defense of Marriage Act
• A marriage should be recognized by immigration law if it is a valid marriage under the law of the state where the marriage was celebrated
• In order to achieve U.S. immigration law's mission of family unification, nontraditional couples should be afforded the same opportunity to remain together in the United States without additional scrutiny

     

Whistleblower protection for nurses and other health care professionals

Because most employees in the United States, including health care professionals, are employed "at will" (which means their employment can be terminated for any reason or no reason, as long as the reason isn't illegal), retaliatory actions by employers toward employees who speak out (i.e., blow the whistle) are not uncommon. Additionally, the law protecting whistleblowing employees varies greatly depending on the state where the employee works or if he or she works for the federal government. This article examines when and under what conditions a nurse or other health care professional may be protected from having an adverse employment action taken against him or her for reporting such issues as patient safety violations or health care fraud. The authors offer issues a nurse or other health care professional should consider before making the decision to blow the whistle. Finally, the authors also discuss the remedies such as reinstatement, back pay, or other compensatory mechanisms that may be available to employees terminated for reporting wrongdoing.     

Why Methods Matter in European Legal Scholarship

Both in the United States and in Europe, there is a debate on methodology in legal research. Doctrinalists and multidisciplinarians appear to be in different camps fighting over the ‘true nature’ of legal scholarship. We wonder where this renewed attention for methodology is coming from and what is behind it. Should European legal scholars follow certain colleagues in the United States who believe that doctrinal research is dead and should we all engage in law and … research now? If not, does this imply that there is nothing wrong with mainstream European doctrinal legal scholarship? We believe the latter is not the case. Our hypothesis is that an ongoing instrumentalisation of law and legal research decreases the attention for methodology, for theory building, and for keeping enough professional distance to one's object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications. What is desperately needed is more reflection on methodology and theory building in European legal scholarship.     

Bringing Back the States: A Congressional Perspective on the Fall of Slavery in America

In the aftermath of America's Civil War, national lawmakers who chronicled the fall of slavery described the North as a terrain of states whose representatives assembled in Congress, as evidenced in Henry Wilson's The Rise and Fall of the Slave Power in America (1872–77) and Alexander Stephens’s A Constitutional View of the Late War Between the States (1868–70). Beginning in the early 1900s, scholars who helped establish the field of American constitutional history redescribed the national government as the voice of the Northern people and the foe of the states, as evidenced in Henry Wilson's The Rise and Fall of the Slave Power in America (1872–1877) and Alexander Stephens's A Constitutional View of the Late War Between the States (1868–1870), a first generation of scholars writing during the Progressive Era redescribed the national government as the voice of the Northern people and the foe of the states, as evidenced in William A. Dunning's Essays on the Civil War and Reconstruction (1898), John W. Burgess's The Civil War and the Constitution (1901–1906), and James G. Randall's Constitutional Problems Under Lincoln (1926). Although a second generation of scholars uncovered traces of the lawmakers' perspective of states, new efforts in the wake of the civil rights movement to understand the internal workings of political parties and the contributions of ordinary Americans kept the study of national lawmakers and their states on the margins of inquiry, as evidenced in leading revisionist histories of Reconstruction, including Harold Hyman's A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1973), Michael Les Benedict's A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869 (1974a), and Eric Foner's Reconstruction: An Unfinished Revolution (1988). Today, the terrain of Northern states remains in the backdrop, as illustrated in recent studies featuring the wartime national government, including James Oakes's Freedom National: The Destruction of Slavery in the United States, 1861–1865 (2012) and Mark E. Neely, Jr.'s Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (2011), as well as studies of the mechanisms of constitutional change during Reconstruction, including relevant sections of Bruce Ackerman's We the People II: Transformations (1998) and Akhil Reed Amar's America's Constitution: A Biography (2005). This review essay argues that incorporating the states back into this century‐old framework will open new lines of inquiry and provide a more complete account of federalism's role in the fall of slavery. In particular, a return to the archives suggests that in the uncertain context of mid‐nineteenth‐century America, slavery's leading opponents in Congress saw the Constitution's federal logic not simply as an obstacle, but as a crucial tool with which to mobilize collective action and accommodate wartime opposition at a time when no one could say for sure what would remain of the United States.     

Examining the blue line in the rainbow: the interactions and perceptions of law enforcement among lesbian,gay, bisexual,transgender and queer communities

ABSTRACT

Despite the fact that LGBTQ individuals are at greater risk of victimization than the average citizen, the LGBTQ community’s relationship with law enforcement has been a turbulent one. Using a mixed-methods approach, including surveys, semi-structured interviews and observations of town hall meetings, and following the participatory action research framework, this study examines the interactions between the LGBTQ community and law enforcement, and the perceptions of police within the LGBTQ community. The current study demonstrates how members of the LGBTQ community continue to have negative experiences with police that adversely impact their perceptions of law enforcement. Moreover, the findings underline the importance of examining how multiple identities impact an individual’s experiences with and their perceptions of law enforcement. Expanding past research on this topic, this study offers an analysis based upon suggestions of the study’s participants of what steps must be taken in order to improve relations between these two groups.