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‘New Parents’ and the Best Interests PrincipleParenthood law in the U.S. has traditionally been based on gestation, marital status, and genetics. The best interests of the child principle, which is pervasive in the law of parental rights and responsibilities, has conventionally not played any role in parentage law. In contrast, foreign law, especially, international human rights law, stresses on the interests of the child as a universal standard in all decisions concerning children. This conventional view of American law is no longer true. With the rise of ‘new parents’ in non-traditional families, the American law of parenthood has been undergoing an expansion to include intentional and functional principles to treat non-traditional families equally. This new law of parenthood has been accompanied by the creeping application of the best interests principle to a new range of situations that are not merely disputes over custody and visitation but raise the first order question of parenthood. This application of the best interests principle is surprising given that it has extensively been critiqued for being discretionary and indeterminate in custody law. This Article argues that the creeping application of the best interests principle in parentage law is a development that should be avoided. First, the Article suggests that the best interests principle rarely does independent work in parentage law. Second, and more importantly, as a conceptual matter, it is incompatible with parentage determinations. To understand the work that the best interests principle is beginning to do, the Article analyzes emerging case law on de facto parenthood in the United States. These developments are brought in conversation with the more pervasive use of best interests reasoning in the jurisprudence of the European Court of Human Rights. Based on a comparative case law analysis, the Article shows that the best interests principle is used inconsistently, does no independent work, and obscures what is truly at stake in parenthood determinations. While existing literature has extensively critiqued the best interests principle for being discretionary, this Article makes four novel normative arguments against the use of best interests in parentage law, focusing on the permanency and relationality of parenthood and the temporality and the dignitary harms of best interests. Ultimately, the Article endorses equality-based approaches to parenthood, which center principles of intent and function, compared to the more discretionary best interests standard.
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The SCALES project: Making federal court records freeFederal court records have been available online for nearly a quarter century, yet they remain frustratingly inaccessible to the public. This is due to two primary barriers: (1) the federal government’s prohibitively high fees to access the records at scale and (2) the unwieldy state of the records themselves, which are mostly text documents scattered across numerous systems. Official datasets produced by the judiciary, as well as third-party data collection efforts, are incomplete, inaccurate, and similarly inaccessible to the public. The result is a de facto data blackout that leaves an entire branch of the federal government shielded from empirical scrutiny. In this Essay, we introduce the SCALES project: a new data-gathering and data-organizing initiative to right this wrong. SCALES is an online platform that we built to assemble federal court records, systematically organize them and extract key information, and—most importantly—make them freely available to the public. The database currently covers all federal cases initiated in 2016 and 2017, and we intend to expand this coverage to all years. This Essay explains the shortcomings of existing systems (such as the federal government’s PACER platform), how we built SCALES to overcome these inadequacies, and how anyone can use SCALES to empirically analyze the operations of the federal courts. We offer a series of exploratory findings to showcase the depth and breadth of the SCALES platform. Our goal is for SCALES to serve as a public resource where practitioners, policymakers, and scholars can conduct empirical legal research and improve the operations of the federal courts. For more information, visit www.scales-okn.org.
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Lawyerless litigants, filing fees, transaction costs, and the federal courts: Learning from scalesTwo Latin phrases describing litigants—pro se (for oneself) and in forma pauperis (IFP, as a poor person)—prompt this inquiry into the relationship between self-representation and requests for filing fee waivers. We sketch the governing legal principles for people seeking relief in the federal courts, the sources of income of the federal judiciary, the differing regimes to which Congress has subjected incarcerated and nonincarcerated people filing civil lawsuits, and analyses enabled by SCALES, a newly available database that coded 2016 and 2017 federal court docket sheets. This Essay’s account of what can be learned and of the data gaps demonstrates the challenges of capturing activities in federal lawsuits and the burdens, unfairness, and inefficiencies of current federal court waiver practices.
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MultiparenthoodFamily 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.
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The Multicultural State: Progress or Tragedy?This essay is a short response to Daniel Bonilla Maldonado's contribution, »Beyond the State: Can State Law Survive in the Twenty-First Century?« to the recently published Cambridge History of Latin American Law in Global Perspective. While Bonilla sees progress in the movement from the centralized nation-state to the multicultural state, my essay argues for an appreciation of the values that motivated the creation of the unified state as a single constitutional order in the post-colonial period. This effort may have failed, but with that failure went a distinct and valuable idea of freedom.
