Recent efforts to reconcile family law theory and doctrine with the lived experiences of families have focused narrowly on expanding the definition of the legal family to accommodate those in non-traditional family arrangements. By contrast, scant attention has been paid to the disjunction between law�s understanding of caregiving and how families actually function in providing care. Law understands caregiving to be the work of parents; accordingly, it creates two caregiving extremes � one is either a parent, with the rights and responsibilities of that status, or one is a legal stranger without any entitlements. In focusing on these two poles, law disregards the caregiving continuum that exists between them. This Article explores this interpolar space and the non-parental caregivers who occupy it. Intuitively, we recognize that there are caregivers who are neither parents, nor strangers; and empirical and sociological evidence makes clear that parents do not provide care autonomously, but rather, rely on networks of non-parental caregivers. Indeed, in other doctrinal areas, like sentencing and public assistance, law acknowledges these caregiving networks explicitly. This Article calls for a theory that expands the legal construction of caregiving to accommodate the way in which parents rely on caregiving networks comprised of non-parental caregivers. Recognizing these networks, it argues, would reconcile family law with the reality of family life, while furthering family law�s stated interest in enabling and facilitating caregiving within families.
The Supreme Court and the Politics of Death
This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court’s vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians�legislators, prosecutors, and governors�have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less reliable determinations of who truly deserves the ultimate sanction.
The Supreme Court has recently begun to chart a different�and more promising�approach to death penalty reform. In two key areas, the Court has recently reinterpreted prior constitutional doctrines in ways that seem designed to counteract death’s politics. These rules determine the type of offenses for which death is a “cruel and unusual” sanction (the Eighth Amendment’s capital proportionality standard) and the quality of representation defendants must receive in capital cases (the Sixth Amendment’s guarantee of effective assistance of counsel). Each of these rules has been transformed from doctrines that had little effect on the administration of the death penalty into potent weapons for counteracting the politics of death and promoting the fairness and rationality of the capital sentencing process.
A Doctrine of Full Faith and Credit
Imagine a judgment from a California state court in which a plaintiff (“P1”) prevails in a civil suit against the defendant (“D”). A second plaintiff (“P2”) brings a related suit in Alabama against D and seeks to estop D from relitigating issues found adverse to D in California. Given the conflict between the preclusion laws of Alabama and California, may the Alabama court choose which state’s law it will enforce? Or does federal law require Alabama to give the California judgment the same preclusive effect that the judgment would have in California? The answers to questions such as these have considerable practical importance. Cost-conscious litigants determine how much they are willing to spend based on the associated risk of loss or probability of gain in any litigation. Uncertainty surrounding the judgment’s preclusive effect will change that analysis. Unfortunately, there is currently no consistent answer to these questions. This Note will argue for a broad understanding of the implementing statute’s scope. This understanding is a clear rule that courts can easily follow, as opposed to a policy-based standard that is difficult to implement. This Note will present a doctrinal theory that both supports such a reading and provides certainty in the application of the implementing statute.