Volume 42, Number 3


DIFFERENTIAL RESPONSE: A DANGEROUS EXPERIMENT IN CHILD WELFARE

Elizabeth Bartholet

Differential Response represents the most important child welfare initiative of the day, with Differential Response programs rapidly expanding throughout the country. It is designed to radically change our child welfare system, diverting the great majority of Child Protective Services cases to an entirely voluntary system. This Article describes the serious risks Differential Response poses for children and the flawed research being used to promote it as “evidence based.” It puts the Differential Response movement in historical context as one of a series of extreme family preservation movements supported by a corrupt merger of advocacy with research. It argues for reform that would honor children’s rights, confront the problems of poverty underlying child maltreatment in a serious way, and expand rather than reduce the capacity of Child Protective Services to address child maltreatment. It calls for a change in the dynamics of child welfare research and policy so that we can avoid endlessly repeating history in ways harmful to child interests.
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SUBOPTIMAL HUMAN RIGHTS DECISION-MAKING

Richard C. Chen

The literature on human rights generally assumes that when a state fails to comply with human rights norms, it is because the state’s leaders rationally determined that a violation would maximize the state’s expected utility. Strategies for improving compliance accordingly focus on altering a state’s expected utility calculation either through coercion, which seeks to introduce external incentives that make compliance more attractive, or persuasion, which seeks to recalibrate a state’s underlying preferences. A wide array of social science research, however, has demonstrated that human beings regularly make suboptimal decisions that fail to maximize their expected utility. This so-called behavioral research has had a significant impact on domestic law scholarship, but its implications for human rights, as well as for international law more broadly, have not yet been adequately explored. This Article begins that long-overdue conversation by showing that states may in some instances have an interest in complying with human rights norms but fail to do so as the result of suboptimal decision-making by their leaders. In particular, this Article explores how three strands of social science research—on prospect theory, overconfidence, and emotion-based decision-making—have been applied to state leaders in international relations scholarship and can be extended to help explain suboptimal decisions in the human rights context. In doing so, this Article also addresses (without attempting to conclusively resolve) some of the major methodological objections to such a project by collecting the most recent available research on the extent to which experimental findings about individuals in laboratories can be translated into predictions about state behavior. Two more detailed examples are then provided to illustrate how suboptimal decision-making may have contributed to human rights violations in real-world scenarios. Finally, this Article identifies several steps the human rights community can take, beyond coercion and persuasion, to capitalize on existing incentive structures and find ways to ensure that states that already have an interest in complying actually do so.
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“LAW AND JUSTICE ARE NOT ALWAYS THE SAME”: CREATING COMMUNITY-BASED JUSTICE FORUMS FOR PEOPLE SUBJECTED TO INTIMATE PARTNER ABUSE

Leigh Goodmark

Mary Walsh sought justice through the criminal system after being abused by her partner. Following that experience, Walsh warned other women: “For your own peace of mind, be prepared to throw any illusions about ‘justice’ you might have had out the window.” Walsh clearly did not find the justice she sought through the criminal justice system. Whether other people subjected to abuse find justice through the criminal or civil justice systems depends in large part upon what, exactly, justice means to them.
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SPEAKER DISCRIMINATION: THE NEXT FRONTIER OF FREE SPEECH

Michael Kagan

Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. It is possible that protection from speaker identity discrimination had long been implicit in free speech case law, but has now been given more full-throated articulation. Or it is possible that the Court has actually introduced a conceptually new free speech doctrine. Either way, Citizens United has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This Article explores the basis of the speaker discrimination doctrine and points to potential implications. It shows that while the speaker discrimination principle had not been previously articulated clearly, it is a convincing explanation for much earlier First Amendment cases and thus should not be understood as an entirely new development. The speaker discrimination principle holds considerable potential to clarify otherwise confused areas of free speech jurisprudence. In particular, the bar against identity discrimination should operate as a limiting principle on forum-based speech restrictions. To illustrate this potential, this Article examines the potential application of speaker discrimination to school speech cases, especially those involving off-campus speech. At the same time, the Court’s embrace of speaker discrimination raises important questions in critical legal theory about why the identity of a speaker might matter in addition to the substance of what a person chooses to say.
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TAX WHISTLEBLOWER STATUTE: OBTAINING MEANINGFUL APPEALS THROUGH THE APPROPRIATE SCOPE OF REVIEW

Matthew R. Stock

The Tax Relief and Healthcare Act of 2006 strengthened the incentives for whistleblowers to expose large-scale tax evasion. For information provided to the Internal Revenue Service (IRS) after December 19, 2006, the new section 7623(b) of the Internal Revenue Code (Code) authorizes whistleblowers to receive an award of 15% to 30% of proceeds collected from owed taxes as a direct result of their tip. Section 7623(b) of the Code applies to whistleblowing on taxpayers when the amount in dispute exceeds $2 million. The percentage of an award is based on the extent to which the whistleblower “substantially contributed” to the collection.
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APPLYING THE ’CUFFS: CONSISTENCY AND CLARITY IN A BRIGHT-LINE RULE FOR ARREST-LIKE RESTRAINTS UNDER

Luis Then

This Note will focus primarily on “custody,” its development through the common law, and the particular coercive actions taken by law enforcement that are commonly associated with formal arrest— or arrest-like restraints. Courts have consistently held that arrest-like restraints, such as those described in the hypothetical, do not necessarily render a suspect in custody for purposes of Miranda. This assertion is flawed in many respects and would strike a reasonable person as rather odd, not to mention that it is contrary to the purposes behind Miranda. If a suspect has been subjected to these or other arrest-like restraints, it is more likely that he or she is “in custody” for purposes of Miranda, yet an exception to the general rule may be available that still allows for the admissibility of his or her statements. It is also possible for a suspect to be taken out of custody if the arrest-like restraint has been removed prior to any questioning.
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GOVERNING HYDRAULIC FRACTURING THROUGH STATE-LOCAL DYNAMIC FEDERALISM: LESSONS FROM A FLORIDA CASE STUDY

Courtney Walmer

This Note uses a case study to illuminate how a local government is choosing to deal with the national issue of a Texas company coming into its jurisdiction to engage in hydraulic fracturing. Collier County has addressed its concerns surrounding fracking of the Collier-Hogan Well through both cooperation and conflict—using administrative law battles and collaborative approaches with the state to regulate fracking rather than attempting to zone out or altogether ban fracking. This approach provides broader lessons for other local governments on choosing how to effectively regulate the advancing oil industry. Building from this county-based case study, this Note will argue that governing hydraulic fracturing through state-local dynamic federalism is necessary to achieve goals of adequate environmental protection and to respect local interests.
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