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.
Article
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.
Overcoming Procedural Boundaries
This article questions one of the most deeply-rooted taxonomies of modern legal thought, that dividing civil and criminal procedure. It highlights a fundamental shortcoming of our legal system that stems from its failure to provide adequate procedural protections to individuals who are sued by the government or large organizational entities and face severe civil sanctions, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. Many justifications have been offered for the civil-criminal rift in procedure. Some argue that the distinction rests on utilitarian grounds, while others point to egalitarian rationales. Still others invoke the expressive role played by procedure, with others focusing on the unique role of the state in a liberal democracy. The article challenges each of these rationales, showing that they are obsolete, if not completely unfounded, and proposes a simple alternative: cutting the Gordian knot binding substance to procedure and replacing the current bifurcated civil-criminal procedural regime with a model running along two axes: the balance of power between the litigating parties and the severity of the potential sanction or remedy. The balance of power axis refers to the model’s two sets of procedural rules, aimed at remedying asymmetry problems inherent to litigation. One set of rules would govern symmetrical litigation, that is, where both parties are either institutional entities (comprised of both governmental bodies and large organizational entities such as big corporations and financial institutions) or else individuals (including small businesses); a second set of rules would govern asymmetric litigation, involving an individual on one side and an institutional entity on the other. The model’s second axis focuses on the degree of harm that would be generated by an adverse decision for the litigating parties, irrespective of whether the substantive legal regime governing the dispute is civil or criminal. Applying these two parameters, our proposed procedural regime maps out the entire procedural landscape. The resulting redistribution of procedural protections diverges significantly from the current regime. The article shows that the proposed model, as a regime based on the true goals of procedure, in fact, better realizes the ends underlying the rationales used to justify the current procedural regime. It concludes with some remarks about the feasibility of such a reform.