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Our legal system's recognition of injustice is incomplete. Epistemic injustice--injustice that inflicts harm on an individual's capacity to possess knowledge--has gone largely undiscussed. One form of epistemic injustice is testimonial injustice, or harm to a person's capacity as a knower of information. This harm is distinct from a more general credibility harm. It refers to harm that damages an individual's perception of their own knowledge and experiences, and whether they feel as if they have the epistemic and communicative tools to convey that information. These concepts have been more commonly applied to ordinary epistemic practices, such as everyday conversations, making sense of social experiences, or democratic institutions. Yet their application in the law is less common. This Note seeks to join scholars like Jasmine B. Gonzales Rose and S. Lisa Washington by importing an epistemic injustice lens into legal analyses. In doing so, this Note focuses on lay witness testimony, which plays an essential role in determining the veracity and value of plaintiffs' legal claims. Yet misplaced narratives and improperly wielded cross-examination strategies may cause witnesses to suffer testimonial injustice through testimonial quieting or testimonial smothering. Epistemic harm, as it is inflicted in lay witness testimony, is worsened by a pernicious power imbalance between marginalized and nonmarginalized groups. Nonetheless, our legal system is capable of recognizing and preventing the epistemic harm caused by testimonial injustice. This Note draws from academic conceptions of epistemic harm and testimonial injustice to paint a broader picture of how testimonial injustice manifests in lay witness testimony. Then, this Note applies these conceptions to employment discrimination lawsuits brought under Title VII of the Civil Rights Act, specifically sex discrimination cases brought by LGBTQ+ litigants. In doing so, this Note will examine Justice Gorsuch's opinion in Bostock v. Clayton County, particularly the facts in its companion case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, to identify testimonial injustice. Finally, this Note concludes by introducing legal and nonlegal proposals aimed at preventing the epistemic harm of testimonial injustice. This Note's overarching goal is to contribute to a more justiceoriented legal profession that is better equipped to recognize harm and remedy injustice. [ABSTRACT FROM AUTHOR]

According to the standard narrative, blue states are better for marginalized families while red states trample on their rights. Yet the most vulnerable families--primarily Black, Indigenous, and poor families entangled in the family policing system--have more rights in many red states than blue. States like Utah and Texas are passing radically narrowed neglect laws, mandating Miranda rights for parents facing an investigation of child abuse or neglect, and calling for downsizing punitive state intervention. In contrast, lawmakers and state agents in New York and California are blocking such reforms and doubling down on warrantless and unfettered investigations in the name of child safety. This Article explains this phenomenon through the lens of Professor Derrick Bell's classic interest convergence theory, which posits that change occurs largely through a material overlap in the interests of groups in power and subordinated groups. Through analysis of state legislative memos, testimony, interviews, and media accounts, this Article unearths this counterintuitive legal change. It shows how these radical reforms to the family policing system have come about through unusual, pragmatic alliances between libertarians espousing "family values" and public defenders concerned about racial justice. This interest convergence is leading to meaningful improvements for thousands of families--more than one-tenth of families now live under narrowed neglect laws, and Texas has halved the number of children placed in foster care. Even more profoundly, narrowing the front door to the family policing system is a step toward a long-term abolitionist horizon. By identifying and analyzing this path to sociolegal change, this Article makes three contributions. First, it complicates the standard narrative about political categories. Too often, progressive equals freedom and parental rights read as conservative. This Article demonstrates that progressive "child saving" can further the racialized marginalization of parents, and that parental rights do not have to be associated with anti-Critical Race Theory ("anti-CRT") and "Don't Say Gay" laws. Second, the Article excavates the benefits and risks of these interest convergences and argues that the upsides, such as narrative shifts about family well-being, outweigh the dangers, including co-optation. Finally, this Article moves beyond theory to offer scholars, activists, and impacted parties concrete steps toward change. It concludes that scrutinizing state agents claiming to help, welcoming cross-aisle allies, and recapturing parental rights are a key, indeed perhaps the only, way to overcome the pathological politics of the family policing system. [ABSTRACT FROM AUTHOR]

The article focuses on criminal law minimalism, analyzing its scope and scale as a framework for reforming the U.S. criminal system. It explores key questions about what aspects of the criminal law should be minimized—such as substantive laws, carceral punishment, and policing and how much minimalism should guide institutional practices. It argues that minimalism presents both radical and pragmatic possibilities, raising critical debates about the normative vision of criminal law.

Family law conventionally treats parenthood as binary: A child has two, and only two, parents. These two parents possess all parental rights and responsibilities, which cannot be shared with others. Their status as parents remains fixed throughout the child’s life. Today, legislatures are explicitly challenging this view. Ten jurisdictions now have multiparent statutes, i.e., laws that authorize courts to recognize more than two legal parents. Commentators tend to view this development as a radical change in the law intended to accommodate radical new family forms produced by assisted reproduction, LGBTQ family formation, and polyamory. But the accuracy of these assumptions—about the ways in which these statutes represent a break from the past and the types of families they capture—has remained unexamined. This Article is the first to do so through an empirical study. Analyzing all publicly available judicial decisions issued pursuant to multiparent statutes, we show that the families they accommodate are not novel and rare family arrangements involving planned and well-resourced LGBTQ parents, but instead more familiar and common ones, emerging out of re-partnering and caregiving by extended family members and often resulting from challenges related to poverty. We also show that extending parental rights to more than two people is a longstanding practice in family law. Drawing on a second dataset consisting of all publicly available judicial decisions applying a functional parent doctrine over four decades, we find that courts long have accommodated multiparent families. For decades, courts have authorized the sharing of parental rights and responsibilities across more than two individuals, often recognizing people who come into children’s lives long after their birth. Our empirical study of multiparent recognition challenges conventional assumptions about the life and law of parenthood itself. Families commonly construct parent-child relationships in ways that are nonbinary—sharing parental rights with more than one other person and altering a child’s parental unit over time. For their part, courts too have resisted a view of parenthood as binary. They have recognized that many children have more than two parents; that parental rights and responsibilities can be unbundled and shared; and that a child’s parents may change over time. Our empirical account also suggests that many of the concerns raised about multiparent recognition are inapposite or overstated. Imagining a planned multiparent amily with three involved parents, commentators worry that laws allowing multiparent recognition will produce bitter custody litigation, complicated tri-custody orders, and ongoing conflict with three parents sharing legal rights and responsibilities. Yet, across both datasets, the children rarely have three parents assuming parental responsibilities. Legal recognition of more than two parents typically promotes security and stability for children, not by protecting relationships with multiple involved parents, but instead—and counterintuitively—by protecting children’s primary parental relationship. Accordingly, our study leads us to be less concerned with too much multiparent recognition and instead to be more concerned with too little multiparent recognition. [ABSTRACT FROM AUTHOR]

This Article argues that sex workers are silenced when they attempt to contribute to lawmaking processes. As a result, they are unable to contribute their knowledge in a meaningful way. The consequence is that laws reflect only one perspective of life in the sex trades: the prostitution abolitionist position that all sex work is inherently a form of violence against women. Without the ability to help shape this narrative, sex workers will continue to be silenced by the allegation that they are a danger to the feminist movement, courts will make harmful rulings, and legislatures will continue to enact laws that put sex workers in danger. This Article makes several contributions. Firstly, it contributes to feminist philosophical literature by coining the "Cycle of Epistemic Oppression" as a tool to excavate silencing within the law. It then examines how this cycle operates in the context of sex work policy making. Finally, this examination demonstrates the wide applicability of the Cycle of Epistemic Oppression to diverse areas of law [ABSTRACT FROM AUTHOR]

Family law scholarship is increasingly reflective of the state’s centrality in the lives of marginalized families. One way this shift has taken place is through a focus on the family regulation system. As increased attention is directed towards this system, two competing narratives have emerged. The mainstream narrative describes the family regulation system as one that, although flawed, protects children from maltreatment. The counter-narrative questions the system’s efficacy and purpose and situates it within a long history of surveillance, family separation, and subordination. Against the background of these critiques, this Essay explores the family regulation system’s knowledge production problem. Knowledge production problem here refers to the compelling, excluding, and discrediting of certain knowers and their epistemic contributions. To the extent that scholarship addresses knowledge production in the family regulation context, it typically emphasizes silencing practices. Far less attention has been paid to the way the family regulation system compels knowledge that comports with existing family regulation scripts. This Essay provides a cursory look at how the law and institutional design of family regulation compress marginalized families’ experiences and constrains their ability to participate in the knowledge production process around state intervention. The compelling of family regulation scripts impacts not only individual families but also agenda setting, understandings of, and solutions around child safety. This Essay examines how emerging scholarship has drawn on experiential epistemologies and interdisciplinary research to intervene in the mainstream narrative around the efficacy and impact of the family regulation system despite these barriers. After discussing the need for critical analyses of the system and identifying examples of emerging critical family regulation scholarship, this Essay conceptualizes this scholarship’s promise and grapples with future implications. [ABSTRACT FROM AUTHOR]

The article from the Wisconsin Law Review discusses significant legal developments at the state level in 2024, including state court rulings on voting rights, direct democracy, and state governance. It highlights key decisions from Montana, New York, Idaho, Kansas, Utah, Michigan, and Wisconsin. The article also covers topics such as state constitutions, state institutions, state courts, state-level democracy, and the Purcell principle in state courts. The authors emphasize the importance of state public law and hope to spark further interest in these crucial but often overlooked areas of study. [Extracted from the article]

Over the last two decades, references to intersectionality have become increasingly common in international human rights law. Many human rights bodies now make use of intersectionality in some form, and scholars propose more widespread and in-depth intersectional analysis as a way to better capture how human rights are realized or violated. Against the backdrop of this intersectional turn, this article scrutinizes the dynamics of intersectionality's travels to international human rights law, asking how power structures influence where and how intersectionality can travel, and how its meaning and use change across contexts. This article provides a bird's-eye view of different human rights institutions and identifies a number of factors that condition the use of intersectionality, including the presence of political precommitments and the flexibility to express them, the kind of document or procedure at issue and how it is structured, as well as the institutional culture of any given human rights body and the weight it gives to legitimacy concerns and controversy avoidance. This article also analyzes how scholarship conceptualizes intersectionality in the context of its travels to human rights, arguing that it is presented as an always-already legal notion that impedes attention to the dynamics of depoliticization within human rights. To challenge this depoliticization, this article suggests that it is necessary to loosen our commitment to human rights institutions as forces of social good and instead approach the intersectional turn in human rights from a perspective grounded in political commitments to Black feminism and other emancipatory projects. [ABSTRACT FROM AUTHOR]

Haaland v. Brackeen, last year’s unsuccessful Supreme Court challenge to the Indian Child Welfare Act (“ICWA”), trumpeted a critique made consistently over the statute’s forty-five-year history: that ICWA harms Indian children by subordinating their interests to their tribes’ interests, unlike State family law, which pursues the “best interests of the child.” This critique is likely to underpin future challenges to ICWA—and it is wrong in both fact and theory. Not only does ICWA generally benefit Indian children. More fundamentally, a tribe’s interest in Indian children corresponds directly to an interest States regularly pursue vis-à-vis all children: the political community’s interest in selfperpetuation. ICWA just does explicitly what State law does implicitly. This means that at base, challenges to ICWA are fights about which sovereign, representing which political community, gets to govern Indian children. This Article takes opposition to ICWA as an opportunity to scrutinize the nature and permissible scope of political communities’ interests in children. Recognizing that all sovereigns pursue their political communities’ interests in children—as ICWA forces us to do—requires admitting the uncomfortable truth that a community’s and a child’s interests may at times conflict. Acknowledging this possibility, in turn, makes clear the need to develop tools to identify and manage such conflicts when they occur. [ABSTRACT FROM AUTHOR]

Against the backdrop of declining crime rates, gun violence and gun-related homicides have only risen over the last three years. Just as it historically has, the brunt of that violence has been borne by poor Black and brown communities. These communities are especially impacted: they are not only far more likely to be the victims of gun violence, but are also the primary targets of police surveillance and harassment. People of color are disproportionately prosecuted for gun crimes, which, in part, prompted the Black Public Defenders Amicus Brief in support of expanding gun rights in New York State Rifle & Pistol Ass'n v. Bruen. Recognizing that the carceral approach of policing and prosecution has failed to prevent gun violence and has harmed Black and brown communities, this Article sets forth community violence interruption groups as a promising decarceral alternative. Violence interruption groups address violence by working with the people who are most impacted by cyclical gun violence and intervene by mediating conflicts, defusing imminent violence, and encouraging people to give up their firearms. Building on the work of abolitionist scholars and organizers, this Article centers the role of Violence Interrupters as an important alternative to policing and punitive prosecution. It explores legal changes that might minimize the legal barriers to violence interruption, including statutory reform, mens rea reform, expansion of the Second Amendment, and recognition of an innocent possession defense. [ABSTRACT FROM AUTHOR]

Federal Indian policy is rooted in family regulation. Here, family regulation is twofold, comprising: (1) the idea that American Indian families should be curated to be more like their non-Indian counterparts; and (2) the child welfare system, as Dorothy Roberts notes. Overall, family regulation was part of an Indian assimilation project. Since the late nineteenth century, assimilationist tactics encouraged the wholesale removal of Indian children, first to boarding schools, and later to adoptive placements. After decades of abusive family regulation practices, Congress enacted the Indian Child Welfare Act of 1978 ("ICWA") to prevent the breakup of Indian families and promote tribal sovereignty. This Article argues that, in addition to the expressed congressional goal of protecting Indian families, ICWA is a tool of reproductive justice. Beyond the right to abortion, reproductive justice includes the right to have a child, the right to not have a child, and the right to raise a child in a safe and healthy environment. By implementing procedural guidelines to protect Indian family decision-making and child-rearing from state agencies that were, and are, often too eager to promote the settler colonial project, ICWA is a positive disruption of the settler colonial project that defends the reproductive autonomy of American Indian people. As a symbol of the disruption of both historic and contemporary efforts to regulate Indian families through a colonial project that defined families through assimilation, and regulated those it could not, ICWA remains a good policy. Yet, ICWA is under attack like other reproductive rights and the rights of Indian tribes as sovereigns. As such, this Article provides a framework for reproductive rights and explains where ICWA--and more specifically, the needs of American Indians--fit into this framework. Because ICWA does not exist without other attacks on the reproductive autonomy of American Indians and tribal sovereignty, this Article examines the attendant history of the settler colonial project leading up to ICWA, as well as ICWA's goals and mandate, along with what it means to discuss ICWA as a tool of reproductive justice. While opponents frame their attacks on ICWA as a need to "save" Indian children and place them with the "best" families possible, the attacks on ICWA symbolize the ongoing attempts to regulate Indians by eroding their reproductive rights and autonomy. [ABSTRACT FROM AUTHOR]

In a letter dated February 22, 2022, Texas Governor Greg Abbott directed the commissioner of the Texas Department of Family and Protective Services "to conduct a prompt and thorough investigation of any reported instances" of what he called "abusive sex change procedures." Many condemned the weaponizing of the child welfare system against parents supporting their children. Some highlighted that the directive misuses the vague definitions of child abuse to target LGBTQ+ youth and their families. While I agree with both critiques, I suggest that this framing insufficiently captures the ways the family regulation system--often called the "child welfare system"--fits squarely into the broader project of controlling marginalized families. The issue is not primarily the Texas directive's misuse of the system but the system itself. This Essay argues that the directive invokes preexisting, deep-seated fears of violence committed or perpetuated by the carceral state against the most marginalized families. Whatever the long-term viability of the directive, it has already exacerbated those fears. The family regulation system has the power to separate families and intrude on the most intimate parts of family life. Fear of state supervision and family separation takes a tremendous toll on impacted families. State actors weaponize this fear by leveraging, whether intentionally or unintentionally, a structural environment that induces, benefits from, and relies on fear, making it easier to control families. This weaponizing of fear to control families, in turn, produces further marginalization. This Essay outlines the conditions of fear in the family regulation system and examines the ways that fear is and is not discussed in family regulation court decisions. It explores how fear is regularly weaponized against families with intersectional marginalized identities, and it identifies the targeting of LBGTQ+ youth and parents as a racialized movement. Popular conversations and legal scholarship rarely adopt an intersectional lens and bigger-picture framing that includes both Black LGBTQ+ children and Black LGBTQ+ parents. By conducting an intersectional analysis, this Essay reveals that the Texas directive draws on the inequality, anti-Blackness, and heteronormativity of the family regulation system to target and discipline the most vulnerable families. This Essay calls for scholars to foreground intersectional perspectives in the fight against anti-LGBTQ+ policies and the family regulation system more broadly. [ABSTRACT FROM AUTHOR]

In virtually all areas of law, the home is the ultimate constitutionally protected area, at least in theory. In practice, a range of modern institutions that target private life--from public housing to child welfare--have turned the home into a routinely surveilled space. Indeed, for the 4.5 million people on criminal court supervision, their home is their prison, or what I call a "carceral home." Often in the name of decarceration, prison walls are replaced with restrictive rules that govern every aspect of private life and invasive surveillance technology that continuously records intimate information. While prisons have always been treated in the law as sites of punishment and diminished privacy, homes have not. Yet in the carceral home people have little privacy in the place where they presumptively should have the most. If progressive state interventions are to continue, some amount of home surveillance is surely inevitable. But these trends raise a critical, underexplored question: When the home is carceral, what is, or should be, left of the home as a protected area? This Article addresses that question. Descriptively, it draws on a fifty-state analysis of court supervision rules to reveal the extent of targeted invasions of intimate life in the name of rehabilitation or an alternative to prison, rendering the home a highly surveilled space. Normatively, it argues that allowing this state of affairs with no corresponding adaptations in legal doctrine is untenable. With the home no longer sacred and no limiting principle to take its place, millions of people are left with no meaningful protection from government surveillance, even (or especially) in their home. Left unchecked, the carceral home further entrenches the precise racial, economic, disability, and gender inequities that often inspire reform efforts. Instead, as this Article recommends, privacy and security must be recognized as positive entitlements separate from physical homes. [ABSTRACT FROM AUTHOR]

No court recognizes the right to adopt a child. By contrast, we embrace family formation rights and protect choices about whether to marry, procreate, and rear biological children. These rights are needed because families play a key role in society, and family formation is central to a happy and self-directed life. For similar reasons, we should recognize the right to adopt and stop aggressively screening adoptive parents in ways we would not tolerate for biological parents. Some advocates of child-centered morality think we should equalize the treatment of adoptive and biological parents in the opposite way—scrutinizing biological parents’ homes like adoptive homes and requiring people to get licenses before rearing children. I argue against these positions. Parental licensing would exacerbate the discrimination in our child welfare system, prevent too many nonabusive parents from forming families, and harm more children than it helps. Aggressive adoption screening is wrong for the same reasons: it discriminates, deprives many prospective parents of a chance to form families, and harms more children than it helps. Arguments to the contrary based on child-centered morality or practical differences between adoption and procreation are unpersuasive. [ABSTRACT FROM AUTHOR]

The article examines the debate between parental rights and children's rights in safeguarding children's interests. It challenges the assumption that children's rights alone are adequate, highlighting structural barriers. It questions the impact of children's rights framing on court decisions and suggests alternatives for effective protection of children's interests.

Each year, state agents search the homes of hundreds of thousands of families across the United States under the auspices of the family regulation system. Through these searches--required elements of investigations into allegations of child maltreatment in virtually every jurisdiction--state agents invade the home, the most protected space in Fourth Amendment jurisprudence. Accordingly, federal courts agree that the Fourth Amendment's warrant requirement applies to family regulation home searches. But almost universally, the abstract recognition of Fourth Amendment protections runs up against a concrete expectation on the ground that state actors should have easy and expansive access to families' homes. Legislatures mandate searches and loosen warrant requirements; executive agencies coerce consent from families and seek court orders that violate the Fourth Amendment; and the judiciary rubberstamps these efforts and fails to hold the executive and the legislative branches to their constitutional obligations. Families under investigation--who are almost all poor and are disproportionately Black, Latinx, and Native--are left with nowhere to retreat. This Article argues that the casual home invasions of the family regulation system are not just another story of lawless state action carried out by rogue actors or of an adversarial system failing to function. Instead, this is a story of a problem-solving system functioning exactly as it was designed. The problem-solving model emphasizes informality, information-gathering, and cooperation--values that sit uncomfortably with the individual rights-based principles underlying the Fourth Amendment. By uniting each branch of government in a project of surveillance, the problem-solving model reduces the potency of the separation of powers as a check on government overreach, while at the same time undercutting checks and balances outside the separation of powers. Protecting individual rights and preventing government overreach in the family regulation system will require more than rejecting the problem-solving model in favor of an adversarial model, as the criminal legal system shows. Guided by the heuristic of non-reformist reforms, the Article suggests a continuum of measures--some immediate, some over the course of generations--that will unravel the family regulation system's wide net of surveillance and safeguard the welfare of children in a holistic sense. Ultimately, we must fundamentally rethink "child welfare services" and move from a model that holds individuals responsible for large-scale societal problems to one that addresses those problems on a societal level. [ABSTRACT FROM AUTHOR]

This Article makes three contributions to the literature on the harms to children and their families that flow from involvement in the juvenile delinquency court. It argues, first, that poor mothers of color--especially those raising children without cohabitating partners--are uniquely vulnerable among parents to both seeing their children involved, and then ensnared, in the delinquency system and suffering harm from that experience. Second, it offers the contours of a theoretical framework for understanding the persistence of counterproductive and illogical treatment. Policymakers often view the vulnerability of poor mothers of color in other systems ostensibly designed for care--most notably the provision of income supports and the so-called child welfare system--as resulting from personal failings rather than systemic racism and sexism. Consequently, women in these contexts may be stigmatized and even criminalized. This Article posits that sex and race stereotyping and bias similarly help explain the commonplace and unnecessary diminution of parental dignity in the delinquency system. This conceptualization points toward prescriptions for reform, the Article's third contribution. The Article argues that policymakers should move away from a system of prosecution and surveillance of young people and their families as the primary social response to alleged misconduct and invest in nonjudicial, noncarceral systems, such as those that exist for wealthy white children. In the meantime, they should work to change laws, practices, and discourse that diminish the rights and dignity of parents. [ABSTRACT FROM AUTHOR]

The lingering COVID-19 pandemic has ushered in policy developments that mar child and family wellbeing while effectively suppressing US. children in civic life. Although the prevailing framework for child-parent-state conflicts already antagonized families and disenfranchised youth, "COVID Capitalism" threatens to silence children on virtually every level. Not only does fiscal, emotional, medical, and social precarity now increasingly beleaguer children and families, but various measures taken by governments and the private sector since the onset of the pandemic reinforce children's subordinate status. These developments exist amidst a backdrop that this author previously coined the empathy gap, wherein the public perception and response to struggling families depends largely upon preconceived notions about racial identity. Despite the reduced medical severity of the Coronavirus for individuals under age eighteen, children are acutely vulnerable to other impacts of a pandemic due to their critical period of development and the drastic modification of routines and resources that ordinarily foster stability.' This Article illuminates the legal and political decisions that states, the federal government, and other entities are making in the COVID era to overtly bolster racial capitalism, including elevating profits over human life, deregulating industries, incentivizing a diminished social safety net, exploiting an over-extended workforce, and ignoring public health. Ultimately, the U.S. is at a critical juncture. A devastating pandemic reverberates yet offers an unparalleled opportunity to reimagine the status quo and potentially transform destructive systems. Instances of youth mobilization are ironically burgeoning across the country, even as major attempts at suppression and austerity persist. However, unless policymakers, scholars, and the public reprioritize the social safety net and invest in youth and family empowerment, public health, socioeconomic wellbeing, and our planetary fate in the Anthropocene 2 are in irreversible jeopardy. [ABSTRACT FROM AUTHOR]

The carceral state is entangled with the ostensibly non-criminal social and legal response to intimate partner violence (IPV). While feminists and anti-IPV advocates increasingly recognize the harmful effects of the carceral state's involvement in addressing violence, less attention has been given to civil remedies and services which are contingent upon interaction with the carceral state. At the same time, the police abolition movement has gained rhetorical momentum, but it remains focused on the traditional role of police in affirmatively regulating conduct, without recognizing how people are coerced into interacting with the carceral state to access resources. Anti-carceral approaches to IPV cannot work to prevent and remediate harm if civil remedies require interaction with apparatuses of the carceral state. Conversely, abolition cannot work if the movement fails to recognize that the carceral state is entrenched in the civil response to violence, not just the criminal response. This Article identifies and examines how civil remedies for survivors of IPV, including housing protections, crime victim compensation, and immigration relief, are entangled with the carceral state; analyzes the individual and structural harms caused by civil-carceral entanglements; and argues that they undermine the efficacy and equitability of remedies and further the reach of the carceral state. We can reimagine a society that works to prevent and remediate the harms of IPV without relying upon the discriminatory, retributive, and ineffective mechanisms of the carceral state. [ABSTRACT FROM AUTHOR]

This Article uses the experience of Larry Thompson, the plaintiff in Thompson v. Clark, 142 S. Ct. 1332 (2022), to examine the absence of privacy for poor families, particularly poor Black, Latinx, and Native families, in the United States. Mr. Thompson may end up remembered in legal history as a victor, as the Supreme Court lowered the barriers to bringing malicious prosecution claims and reinstated Mr. Thompson's own previously dismissed malicious prosecution claim. Yet before securing this victory, Mr. Thompson lost a slew of other Fourth Amendment claims against the police. Mr. Thompson's claims arose from state agents' warrantless and violent entry into his home late at night to investigate a baseless claim that he was sexually abusing his newborn daughter. With Mr. Thompson's story at its center, this Article argues that the deepseated logic pathologizing poor parents--particularly poor Black, Latinx, and Native parents--intersects with an insidious carceral logic that relies on surveillance, coercive control, and punishment to maintain public safety and power hierarchies. These logics have fundamentally distorted society's view of what is reasonable for marginalized parents to do and what is "reasonable" for state actors to do when marginalized parents refuse to conform to their demands. They underpin the functional and formal entanglement of policing and social services. At the same time, as Fourth Amendment doctrine has shifted away from a warrant requirement and toward more nebulous assessments of police "reasonableness," a wide range of actors, from police and EMTs to judges and juries, can now fall back on these pathologizing and carceral logics to justify "reasonable" invasions into marginalized families' homes. [ABSTRACT FROM AUTHOR]

The controlling federal family regulation law, the Adoption and Safe Families Act of 1997 ("ASFA"), has long been criticized for unnecessarily terminating the rights of parents and leaving thousands of children in its wake without legal parents or any prospect for adoption. Critics highlight the irreparable destruction ASFA has caused the Black community, and many suggest that this result is by design, not disproportionate impact. As a result, a growing movement of impacted parents, advocates, and scholars have called for ASFA's total repeal. This article draws on the work of these parents, advocates, and scholars to argue that a law whose foundation is built on inherently prejudicial policies cannot be repaired; it must be dismantled in its entirety. Dismantling is necessary not only for practical legal reasons, but also because of the symbolic importance of repeal to those most impacted by the law and its attendant policies. Laws have expressive value, and as such, the repeal of harmful laws demonstrates our priorities, our beliefs and who we are as a society. This article examines previous attempts at reform to demonstrate that any attempt to amend ASFA would be insufficient to address its fundamental flaws. Finally, the article concludes by proposing a path forward that is led by impacted families, respects the right to family integrity and recognizes the importance of supporting and investing in communities. Key points for the family court community: The Adoption and Safe Families Act is built on a foundation of inherently prejudicial policies.ASFA's structure also undermines efforts to keep families together.A growing community of impacted people, activists, advocates and scholars believe that ASFA should be repealed becuase of its destructive impact on low‐income parents and communities of color.Other efforts at reform have only increased the abilty of the state to surveil and punish.Laws have expressive value and many believe that repealing a harmful law is crucial to healing communities that have been harmed.To truly begin to atone for the harms of the past, we must envision a path forward that shifts power, invests in the community and is completely transforms our approach to "child welfare."Impacted parents must lead the effort towards change and allies and advocates should listen, learn, act with humility and support. [ABSTRACT FROM AUTHOR]

A growing body of scholarship examines the expansive nature of the criminal legal system. What remains overlooked are other parts of the carceral state with similarly punitive logics and impacts. To begin filling this gap, this Article focuses on the convergence of the family regulation and immigration systems. This Article examines how the cumulative effects of these two systems increase the risk of immigration detention, deportation, and permanent family separation for noncitizen and mixed-status families. It argues that system convergence produces feedback effects that bolster punitive interventions and outcomes in both systems, ultimately creating what I call a web. When referring to this phenomenon, I use the term “fammigration web,” similar to the way other scholars refer to criminal legal and immigration system overlap as “crimmigration.” Although the exact number of noncitizen families impacted by the family regulation system remains unclear, the existing literature suggests that thousands of families are adversely affected. While practitioners and advocates increasingly discuss the relationship between the family regulation and immigration systems, scholarship has not fully caught up. This Article makes three central contributions. One, it provides the first theoretical account of family regulation system and immigration enforcement system interconnectedness. Two, it identifies how nodes in the fammigration web exacerbate the risk of family separation for noncitizen and mixed-status families by marking and subordinating them. Three, it situates efforts to shrink the fammigration web alongside other efforts to shrink the carceral state. To dismantle carceral logics, we must identify how they are produced across systems. While this requires long-term strategies, this Article offers a few immediate ways to sever threads and shrink the fammigration web. [ABSTRACT FROM AUTHOR]

Federal Indian policy is rooted in family regulation. Here, family regulation is twofold, comprising: (1) the idea that American Indian families should be curated to be more like their non-Indian counterparts; and (2) the child welfare system, as Dorothy Roberts notes. Overall, family regulation was part of an Indian assimilation project. Since the late nineteenth century, assimilationist tactics encouraged the wholesale removal of Indian children, first to boarding schools, and later to adoptive placements. After decades of abusive family regulation practices, Congress enacted the Indian Child Welfare Act of 1978 (“ICWA”) to prevent the breakup of Indian families and promote tribal sovereignty. This Article argues that, in addition to the expressed congressional goal of protecting Indian families, ICWA is a tool of reproductive justice. Beyond the right to abortion, reproductive justice includes the right to have a child, the right to not have a child, and the right to raise a child in a safe and healthy environment. By implementing procedural guidelines to protect Indian family decision-making and child-rearing from state agencies that were, and are, often too eager to promote the settler colonial project, ICWA is a positive disruption of the settler colonial project that defends the reproductive autonomy of American Indian people. As a symbol of the disruption of both historic and contemporary efforts to regulate Indian families through a colonial project that defined families through assimilation, and regulated those it could not, ICWA remains a good policy. Yet, ICWA is under attack like other reproductive rights and the rights of Indian tribes as sovereigns. As such, this Article provides a framework for reproductive rights and explains where ICWA—and more specifically, the needs of American Indians—fit into this framework. Because ICWA does not exist without other attacks on the reproductive autonomy of American Indians and tribal sovereignty, this Article examines the attendant history of the settler colonial project leading up to ICWA, as well as ICWA’s goals and mandate, along with what it means to discuss ICWA as a tool of reproductive justice. While opponents frame their attacks on ICWA as a need to “save” Indian children and place them with the “best” families possible, the attacks on ICWA symbolize the ongoing attempts to regulate Indians by eroding their reproductive rights and autonomy. [ABSTRACT FROM AUTHOR]

The day-to-day operation of criminal court supervision—including probation, parole, and electronic ankle monitoring—is understudied and undertheorized. To better understand the mechanics of these systems, this study comprehensively analyzes the rules governing people on criminal court supervision in the United States. Drawing on the analysis of 187 public records from all fifty states, this study documents how criminal court supervision functions and impacts daily life. In particular, this study examines the various ways that supervision rules limit or restrict privacy, bodily autonomy, liberty, dignity, speech, and financial independence. This study also explores the nature and prevalence of supervision rules across the United States. Ultimately, the analysis of the rules offers empirical evidence that court supervision imposes significant restraints on people’s ability to thrive and, in doing so, risks legitimating the subordination of historically marginalized groups. [ABSTRACT FROM AUTHOR]

Scholarship on policing has exploded in recent years as bystanders increasingly record and circulate videos of police brutality, much of it directed at civilians of color. These incidents have drawn significant attention to the culture of police departments and police unions, generating widespread calls for the reform, or even the abolition, of police forces. The traditional considerations at the center of these debates include the practical challenges to enacting reforms, the expected efficacy of proposed changes for curtailing abuses, and the possible costs of these changes (whether measured in dollars or crime rates). The moral premises that are inherently embedded in reform arguments typically remain unstated and undefended, obscuring entire categories of harm imposed by police and the proper aims and urgency of reform. Quite separately from disputes about policing, many legal scholars have come to accept that the proper aim of the law is to facilitate the moral flourishing of the public, or, relatedly, that the human virtues provide a helpful model for understanding the law and the obligations of its agents. Scholars have applied this theoretical framework, known as "virtue jurisprudence," to dozens of substantive areas of law as well as to the professional duties of legal officers, such as judges and lawyers. Yet, much as moral considerations have largely been left aside by policing scholars, policing has been effectively overlooked by virtue scholars. This latter omission is especially peculiar. Whether one accepts that the law is instrumental in guiding the moral development of the populace, or that the virtues serve as helpful models for the professional duties of judges and lawyers, policing is plainly ripe for virtue-centered analysis. After all, police represent the most prominent point of contact between the public and the legal system and, more than any other state officials, police personify the government's near-monopoly on the legitimate use of force. This Article analyzes American policing through the lens supplied by virtue jurisprudence, arguing that uncontroversial assumptions about the moral role of the law provide both a compelling basis for sweeping police reform and valuable parameters for the nature of such reform. The virtues--traits like benevolence, honesty, and wisdom--reveal an entire class of harms caused by police that are widely overlooked: the propensity of policing to make us morally worse people. Police inflict these harms by demanding fawning deference from the civilians they serve and by widely expressing and modeling vice, especially through their unapologetic demonstrations of bias and brutality. The virtues simultaneously offer a cohesive theoretical justification for condemning the more obvious harms linked to racism and excessive use of force by police--harms that monopolize scholarly attention. Virtue jurisprudence thus grounds a more comprehensive tally of the merits and demerits of American law enforcement, and it reframes a solution to the problem of policing: whether through reform or abolition, we must humble the police. [ABSTRACT FROM AUTHOR]

This Article argues that the family regulation system not only discriminates against disabled parents but also produces disability. It identifies and theorizes three modalities of this production: (1) construction, (2) [...], The family regulation system is increasingly notorious for harming the very families that it ostensibly aims to protect. Under the guise of advancing child welfare, Black, Brown, Native, and poor families are disproportionately surveilled, judged, and separated. Discrimination and ingrained prejudices against disabled parents render their families especially vulnerable to separation and termination. Once enmeshed in the system, disabled parents have little recourse against the state for discrimination based on ableist and raced notions of parenthood.

INTRODUCTION People often associate LGBTQ+ (1) parents with adoptive and foster parents. In their minds, LGBTQ+ parents are affluent, white, and male, and any interactions LGBTQ+ parents have with the [...]

INTODUCTION 463 I. SITUATING THE ANALYSIS OF (NON)COMPLIANCE 468 II. UNDERSTANDING THE STEREOTYPES UNDERLYING NONCOMPLIANCE BIASES AND PROVIDERS' PERCEPTIONS 471 A. Examining the Stereotypes Underlying Perceptions of Noncompliance 473 B. [...], The role of implicit racial biases in police interactions with people of color has garnered increased public attention and scholarly examination over time, but implicit racial bias in the healthcare context can be as deadly, particularly when it intersects with ableism and sexism. Researchers have found that medical providers are more likely to consider Black patients "noncompliant," meaning the patient has not adhered to recommended treatment, even without evidence Black patients are less compliant than other patients. Being labeled noncompliant can have grave health consequences; providers are less likely to treat pain aggressively when they consider a patient noncompliant and, subject to certain legal and professional constraints, can deny care altogether. Existing legal scholarship has identified thoughtful proposals to limit providers' ability to reject noncompliant patients; this Article expands upon that work by focusing attention on why Black patients are perceived as less compliant in the first place. This Article further examines the ways in which, among other barriers to compliance, systemic forms of discrimination can lead some patients to actually become noncompliant. To address the impacts of discrimination on patient noncompliance, the Article first builds from a concept in disability civil rights law concerning reasonable modifications. The Article calls for providers and the healthcare system to shift from expecting absolute compliance to providing both individualized modifications and those modifications that have collective benefit. The Article further calls upon providers to redesign their approach to patient care in ways that mitigate provider biases and structurally make it easier for patients to follow a treatment plan they agree with. In legal matters in which a patient's reported noncompliance is relevant, the Article calls for legal decisionmakers and policymakers to account for how stereotyping and systemic discrimination can affect both providers' perceptions of and patients' actual reasons for noncompliance.

INTRODUCTION I. THE CRIMINAL JUSTICE SYSTEM A. A Misleading Label? 1. Not Just 2. Not a System 3. Not Criminal B. An Imperfect Label Worth Keeping? II. RETHINKING THE "CRIMINAL [...], Since the 1960s, the "criminal justice system" has operated as the common label for a vast web of actors and institutions. But as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the "criminal justice system." Instead, they have opted for critical labels--the "criminal legal system," the "criminal punishment system," the "prison industrial complex," and so on. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or does an emphasis on labels and language distract from substantive engagement with the injustices of contemporary criminal law? In this Article, I examine that move to abandon the "criminal justice system" as a means of describing U.S. institutions of criminal law and its enforcement. I identify three alternative labels that are gaining traction in academic and activist circles: the "criminal legal system," the "criminal punishment system," and the "prison industrial complex." I argue that each of these new labels reflect not only a different vision of U.S. criminal law but also a different vision of what is wrong with it. My goal in this Article is not to advocate for a correct, new label. Rather, it is to explain how the different names provide a window into different ways of understanding how the United States punishes and controls individuals and communities. Identifying an alternate label (or opting to retain the "criminal justice system") should force much-needed reflection about what makes criminal institutions distinct from other institutions of governance. And such clarity should be essential to any project of reform or abolition. This Article contributes to three literatures. First, it is a part of a larger project of unpacking how people, and particularly legal elites, talk about and understand criminal law. Second, this Article contributes to the literature that examines the boundaries of criminal law and the ways in which criminal legal institutions interact with ostensibly non-criminal ones. Third, and relatedly, this Article contributes to the critical literature on siloing in scholarship and activism. By emphasizing the fuzzy boundaries of the "criminal justice system," I hope to stress that studying and mobilizing against the injustices of the U.S. criminal legal apparatus requires grappling with a host of diverse legal doctrines and sociopolitical forces.

INTRODUCTION The child protection legal system is at an inflection point. A growing family defense movement fights against state efforts to separate parents from their children. Calls to abolish foster [...], The child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in family life and what that intervention should entail, thus granting wide discretion to child protection agencies and family courts. Second, by granting such discretion, the law permits race, class, sex, and other forms of bias to infect decisions and regulate low-income families and families of color. This Article extends these critiques through a granular analysis of how indeterminacy at multiple decision points builds on itself. The law does not tether permissible interventions to specific types of maltreatment. Minor cases can lead to family separations and even terminations of parent-child relationships. Steps required for reunification can become unrelated to grounds for state intervention. States expend many resources to separate families after failing to spend similar amounts to preserve families. A child protection reform legislative agenda has begun to emerge, but without comprehensively addressing the indeterminacy at the heart of the present legal structure. This Article argues a transformed system must include determinate substantive standards for various stages of child protection cases to limit the system's scope and the potential for biased decisionmaking. The law should define neglect and abuse with precision, both to limit unnecessary state intervention and set maximum levels of state intervention based on the specific maltreatment at issue. The law should require states to spend as much money on helping families stay together as they would on maintaining children in foster care. State action to terminate the legal relationship between parents and children should be limited to situations in which any form of parent-child relationship is harmful to the child.