Complicating Children’s Rights

Oct 1, 2026 Dara E. PurvisAdd a Comment

Dara E. Purvis

Over the last five years, repeated waves of attacks on transgender children have presented a dichotomy for legal advocates hoping to help transgender and nonbinary kids: how to handle parental rights. On the one hand, conservative legislators and judges have used parents’ rights to justify measures such as statutes requiring teachers to out a student to their parents if the student requests that teachers use a different name or pronouns than those that appear on their formal paperwork. Last year’s Mahmoud v. Taylor held that the religious rights of parents reach into the public school curriculum so extensively that a school presenting any curriculum sufficiently in conflict with parents’ beliefs – in the case, approximately one book per school year with an LGBTQ main character or theme – must provide parents a warning and an opportunity to opt their child out of being exposed to those curricular materials. On the other hand, parents’ rights could be a promising avenue when parents support their transgender children, since the Supreme Court’s 2025 holding relating to gender-affirming care bans did not address potential claims brought on behalf of the parents of children seeking such care. To be sure, the parents whose rights have been vindicated before the courts and who have successfully lobbied in favor of protective legislation have all been antitrans. Consequently, pursuing a parents’ rights claim risks further retrenching conservative notions of which parents are entitled to have their rights protected.

Professor Aníbal Rosario Lebrón’s article Opting Out of Subordination: Minors’ Right to Control Their Bodies and Futures, complicates this dichotomy in a tremendously helpful way. It is too simplistic to summarize the question as whether parents win or lose in a disagreement with the state. Sometimes the central conflict is between parents and state, such as if a state mandates a childhood vaccine that the parents wish to opt out of. But sometimes different arrangements of parent, state, and the child in question create different fights. What if parents say that a public school’s curriculum conflicts with their religious beliefs, but the child argues they don’t share their parents’ faith and asks to stay in class? Or if a parent wants their child to undergo medical treatment for a life-threatening condition, but the child wishes to decline the treatment? All of the potential conflicts between parents, child, and the state are not, Professor Rosario Lebrón establishes, created equal. A thumb on the scale in favor of one member of that triad [by whom/what?] is too blunt a solution for a broad range of issues arising in this context.

The article begins with a dichotomy, but not the results-oriented dichotomy with which this review began. Professor Rosario Lebrón first introduces two competing models of parent/child relationships: the parental authority model, under which children are passive subjects whose rights are subordinate to the fully-realized rights of their parents and the state; and the parental responsibility model, which views the state and parents as holding a fiduciary duty to help children develop into active members of civil society. The article then spends some time demonstrating how the Supreme Court has operationalized both models, albeit with a recent and firm swing towards the parental authority approach. For example, Professor Rosario Lebrón contrasts the respect the Supreme Court showed for the speech rights of public school students in Tinker v. Des Moines Independent School District (1969) with the focus on teaching and enforcing social norms in Bethel School District No. 43 v. Fraser. (1986). The Tinker Court wrote that students “may not be regarded as closed-circuit recipients of only that which the State chooses to communicate,” because even though they were minors and in the school context, students still held fundamental rights. By contrast, in the latter case the Court stressed the importance of “teaching students the boundaries of socially appropriate behavior,” even where doing so limited their free speech rights.

Turning to the most recent Supreme Court terms, Professor Rosario Lebrón writes powerfully that the “combined effect of Skrmetti, Mahmoud, Chiles and Bates . . . reduces children’s role from emerging participants in civic life to passive subjects of parental and state power.” (p. 38)

A number of scholars have come to similar conclusions, and Professor Rosario Lebrón traces the work of several with whom he has already been in conversation in previous scholarship. It is in the last two parts of his article that Professor Rosario Lebrón offers his framework that builds upon this previous work and makes the most significant contribution of this article, creating a multistep pathway that more fully recognizes the many conflicts and interests in play. First, Professor Rosario Lebrón proposes a lens of divergence/convergence to identify which participants in a given decision – child, parents, and the state – agree or disagree with each other. Second, he offers three broad categories of the type of question presented. Easy cases are those with relatively firmly established legal rules and facts – one example he gives is disputes about vaccination. Easy cases can be disposed of relatively quickly with broad rules of thumb. (p. 53-54) Not-so-easy cases are in a gray zone where the interests involved are unclear or contested. The state did not adequately explain the link between its policy and its goal, there is not agreement about consequences of the decision for the minor, or there is doubt about whether the activity in question is constitutionally protected. Professor Rosario Lebrón puts both reproductive decisions and gender-affirming care in this category, although others might categorize those topics very differently. Finally, there are hard cases, in which the right asserted is not recognized even for adults, the state’s goal is unclear, or the decision is irreversible – for example, child euthanasia. In these latter two categories, more individualized evaluation is necessary.

Once these first two levels are mapped out – and note that this is a multilevel table rather than a flow chart – Professor Rosario Lebrón adds a third level of analysis: scrutinizing the scientific grounding and the ideological reasons behind the state or parents’ interests. He proposes that courts assess the scientific basis for a given position in a similar way to the evidentiary Daubert standard, whether the evidence is reliable and sufficiently supported. Second, he proposes that a court ask whether prejudice or animus lies behind any party’s position seeking to limit the rights of the child.

Finally, after the conflict has been mapped out and evaluated in the first three levels, Professor Rosario Lebrón would ask any court hearing a case involving a child’s asserted interests to ensure that the voice of that child is heard and considered. Notably, this step takes place even if a court were to conclude that the parents and state were in alignment against the child, that the right asserted was unclear and thus the case was a hard one, and that the scientific grounding behind the parents’ and state’s position was clear and unsullied by animus – in other words, that the child’s argument was completely without merit. Even in that circumstance, Professor Rosario Lebrón argues, our broader concern for children as developing civic actors counsels courts to do their best to make clear that children’s voices will not be dismissed out of hand.

This is demanding theoretical work, so Professor Rosario Lebrón finishes with several examples of his framework in practice. Vaccination is, as he established earlier, a relatively straightforward example: there is a long history of courts holding that the state can require vaccination in some circumstances as an exercise of its police power protecting public health, and the scientific literature is reasonably undisputed. Thus far, a reader might think that Professor Rosario Lebrón’s framework follows a predictable pro-vaccination path. The convergence/divergence analysis, however, adds important nuance. If the state is broadly in support of vaccination, a child wishes to become vaccinated, and only the parents object, then Professor Rosario Lebrón argues the child’s right to consent to their own vaccination should prevail. If both the parents and child don’t want to vaccinate, however, then the child’s right to opt out should track an adult’s ability to do so, barring a specific difference in circumstances justifying the departure. A court might even be confronted with three different views: a state requiring a specific vaccine at age 16, for example; parents who want to vaccinate their child earlier than the mandated age, and a child who wishes to refuse the vaccine altogether. Professor Rosario Lebrón outlines what a court should look to in its analysis, but concludes that given the difficulty of balancing interests, a court could reasonably side with any of the three parties.

Professor Rosario Lebrón begins his article with the rights of LGBTQ+ youth, and the article finishes by tracing a few versions of disputes centering on LGBTQ+ children through his framework: regulation of conversion therapy, reproductive decisions, and gender-affirming care. The article offers a brief summary of how he believes such disputes should be resolved, but acknowledges that particularly in the context of gender-affirming care, the scientific consensus has been a moving target (or perhaps more specifically, a target deliberately moved by a campaign of the production of scientific literature). This means that Professor Rosario Lebrón does not give a final substantive answer to the numerous questions he poses. This is not a bug, but a feature: his project is not to resolve a handful of issues, but rather to give a methodology for all possible assertions of children’s rights. It is an ambitious project, but one that the article does elegantly, inviting further applications and development in the future.

Regulating Paid Childcare

Sep 7, 2026 Shayak SarkarAdd a Comment

Shayak Sarkar

Family law scholars examine caregiving’s formal and informal systems. Literatures in both economics and law have relatedly tried to document who provides care for children and older and chosen family members, how, and on what terms, and the consequences those arrangements have on other family members’ (especially women’s) engagements outside the home. Tradeoffs emerge: how do we preserve access to care without sacrificing quality (broadly defined)?

In this spirit, Luis Faundez and Manisha Padi focus on childcare, carefully examining California’s daycare licensing regimes and how standards enforcement affects childcare facilities. Their study draws upon an increasingly popular method of data analysis in the law and economics field: exploiting the fact that officials enforce the same laws with significantly different standards and severity.

California’s licensing regime includes routine as well as non-routine inspections. For example, after a facility complaint is filed through the official portal, Licensing Program Analysts (“LPAs”) may interview staff and parents and review records in addition to conducting a non-routine inspection of the facility. As the authors estimate, moving from the most lenient LPAs¹ to the most scrutinizing LPAs “increases the probability of being cited with a violation by more than 50 percentage points.” (P. 13.) And they find that LPA assignments are quasi- random. (P. 14.) As such, when a California childcare provider is subject to an inspection, an LPA’s stringency, or willingness to find a violation, reflects a proverbial roll of the die.

Faundez and Padi’s methodology and detailed data reflect the paper’s many strengths. Their data covers both genres of licensed childcare businesses: family daycare (in-home providers for up to fourteen children) and daycare centers (in commercial, nonprofit, or other spaces, permitted to care for a greater number of children). (Nationally, recent estimates suggest much greater usage of daycare centers than non-relative, family daycare, with the former being the most popular among the highest earning and educated brackets.) Faundez and Padi also distinguish between care-related violations, which are related to level of care, neglect, or abuse, and administrative violations, like recordkeeping, reporting, display of legal notices, and financial issues.²

By exploiting the random-like assignment of LPAs to inspections, and therefore findings of violations, the authors document the impact of enforcement on childcare centers. Specifically, the authors include a battery of results focused on three primary outcomes: change in used capacity (how many of the facility’s regulatorily permitted childcare spaces are actually being utilized); license revocation; and ultimate closure (whether voluntary or forced by license revocation).

I’ll focus on two findings that family law scholars, in particular, might find thought-provoking. First, closure is not solely driven by license revocation, and “family daycares seem to be most responsive to LPA stringency when administrative violations are detected.” (P. 19.) The administrative violation induces demand-side (enrollment) declines and eventual closures of family daycares, even when the license is not formally revoked. By distinguishing the effects of administrative violations from care-related violations, these authors illuminate how imposing additional operational costs can reduce profitability and lead to closure (independent of quality of care). Family daycares, which serve fewer children and operate in private residences, may be less professional than their commercial counterparts, leaving them less able to weather the fallout from an administrative violation. Remedying reputation harms or increasing staffing are expensive measures.

As the authors suggest, if the “largest costs come from complying with administrative requirements, rather than care-related violations,” families’ access to childcare can be limited for reasons I will charitably describe as procedural. Limiting the number of family daycares by stringently monitoring administrative compliance—whether recordkeeping or posting mandatory notices—should be a debated and conscious choice rather than an unintended consequence. Faundez and Padi’s findings leave me thinking that California, and perhaps other states, are falling into the second camp. The resources allocated towards administrative as opposed to care-related enforcement might instead be used to open, as opposed to close, childcare options.

Second, the authors are also able to infer the race and ethnicity of the childcare provider who meets with the LPA during inspection. The authors find that Hispanic providers have different experiences. As the authors estimate, again for administrative violations, “Hispanic providers seem much more likely to close and more likely to be assessed with a suspension or revocation” compared to non-Hispanic providers. (P. 21.) Race and ethnicity have long been lenses of scholarly inquiry in the child welfare or family regulation systems; Faundez and Padi use their rich data to bring these lenses to the childcare system as well and highlight the need to better understand LPAs’ interactions with and scrutiny of Hispanic childcare providers. The authors observe the language of the LPA’s visit (usually English) and generally rule out language barriers as an explanation for the Hispanic differential, which leaves non-linguistic cultural barriers. To that end, the Migration Policy Institute and others have suggested that the prevalence of family, friends, and neighbor (FFN) childcare in immigrant communities captures a desire for, and definition of quality, reflecting culturally-competent care as distinct from affordability. California’s differential impacts may then reveal the way its childcare licensing regime embraces an unduly narrow definition of quality that isn’t embraced by its stakeholders.

Faundez and Padi’s deep dive into the impact of state regulation and enforcement regimes on childcare facilities goes far beyond just ethnicity and facility type. Consonant with other scholars of family law, their paper interrogates whether our efforts to regulate caregiving are in fact best serving the children and families cared for. While the authors are careful to highlight their descriptive analysis rather than normative implications, they raise an important question about the childcare access-quality tradeoff. Do we actually protect and support families through California’s current licensing enforcement regime, especially as applied to financially liminal family daycares? Future scholarship can hopefully pick up where the authors leave off, and consider both further data collection as well as more detailed reforms.

1. To calculate LPA stringency, the authors first predict the probability of a violation based on regional office and other variables, and then calculate the difference (residual) between the actual violation outcome and the predicted probability of a violation. For a fuller explanation of the authors’ instrumental variables approach and construction of the “residualized, leave-out LPA stringency measure.” (Pp. 12-14.)
2. The words abuse and neglect will ring bells for those familiar with the foster care system, and the California complaint system leveraged by the authors includes complaints against licensed resource family-foster homes, though these are not the subject of the authors’ study.

Criminal Claiming in Ban-State Abortion Law

Jul 24, 2026 Rachel RebouchéAdd a Comment

Rachel Rebouché

Criminalization by Other Means is a richly documented and analytically rigorous article that examines how anti-abortion lawyers and activists in Texas have deployed local government ordinances and civil litigation as vehicles for advancing theories of criminal liability for abortion, even as formal criminal prosecutions remain nearly nonexistent. The article’s central thesis—that the meaning and reach of criminal law have been expanded through civil litigation—is both timely and underexplored in existing scholarship. This article spotlights an emerging way in which criminal law has appeared in the guise of private law, and, in so doing, makes an important addition to the fields of criminal law, family law, reproductive rights, and local government law.

One of the article’s primary strengths is its empirical foundation. Engle and Laurin read every publicly available “Sanctuary City for the Unborn” ordinance passed in Texas—local laws passed by city or county councils that aim to prohibit abortion within their jurisdictions through civil lawsuits filed by private citizens (and the city or country in some places)—and systematically tracked their provisions over time. They combine this analysis of over 70 such statutes (at the time of writing) with close readings of discovery petitions filed under S.B. 8 (the Texas legislation that operated like an abortion ban before Dobbs), wrongful death complaints, and related court filings. The resulting dataset is organized into three chronological “waves” (2019–2020, 2020–2022, and 2023–2026), which allows the authors to demonstrate how criminal law claims evolved in response to shifts in the legal landscape, including the Dobbs decision and the enactment of the Texas trigger ban after Dobbs. This temporal framework is particularly effective in revealing how anti-abortion advocates coordinated strategies across local government and civil litigation venues.

The article’s three stated contributions are each significant. First, it fills a gap in the abortion law literature by reading the criminal law claims embedded in these ordinances and civil actions for their doctrinal content, rather than dismissing them as purely symbolic. Prior scholarship tended to characterize the “Sanctuary City” ordinances as “wacky” gestures, and the S.B. 8 and wrongful death litigation as tools of intimidation. Engle and Laurin convincingly argue that such dismissals fail to appreciate the criminal law work being performed in these sites, such as elaborating theories of murder liability, advancing novel interpretations of accomplice liability, and making claims about the validity of pre-Roe “zombie” statutes. Claims of murder liability, for example, have arisen in a recent charge against a person accused of tricking his partner into taking abortion pills.

Second, the article contributes to criminal law scholarship by illuminating underappreciated mechanisms through which the meaning and reach of criminal law are expanded outside of legislative and prosecutorial offices. The authors show that local ordinances serve as testing grounds and rehearsal spaces for criminal law theories that later migrate into civil litigation and state legislation, as evidenced by the cross-fertilization between first-wave ordinances and the subsequent passage of S.B. 8, and by the second-wave ordinances’ recitations of the “writ-of-erasure fallacy” (contesting the power of judges to strike down legislation) that later appeared in legislative findings.

Third, the article illuminates the anti-abortion movement’s increasing acceptance of criminalizing the pregnant person. The authors trace how across the three waves, advocates have moved from exempting pregnant people from liability to insinuating and then openly asserting their criminality—particularly under the Comstock Act (a 1873 federal criminal law that some seek to refashion as a de-facto abortion ban) and the state’s pre-Roe statutes, neither of which contains a clear carve-out for the pregnant person.

Rather than cataloguing theories of liability, the authors show how each criminal law claim responds to specific enforcement barriers—extraterritorial limits, accomplice liability constraints, and prosecution exemptions—and how this evolution reveals strategic adaptation to those obstacles. They further identify five audiences to which the criminal law claiming is directed: courts that might validate the theories, those who might be chilled from providing or seeking abortion care, prosecutors who might bring charges and take advantage of discovery emerging from civil suits, the anti-abortion public who might be morally galvanized, and legislators who might enact new criminal or civil anti-abortion tools. Engle and Laurin acknowledge that many of the criminal law claims they analyze are incorrect as a matter of law. But they treat them seriously because of their potential influence. This balanced approach lends the article credibility and avoids the trap of either legitimating the theories or dismissing them.

Perhaps one area for further research concerns the comparative dimensions of the strategy the article documents. Engle and Laurin focus almost exclusively on Texas, and while this depth is a strength, the article’s conclusion notes that “abortion abolition” bills have been introduced in nearly every ban state and that the strategy has “national ripple effects.” Future scholarship could investigate whether and how the Texas playbook of criminal law has migrated to other jurisdictions, including to states with partial rather than total bans, and how the strategy interacts with varying state constitutional frameworks, different doctrines of accomplice liability, and the evolving attacks on shield laws enacted by abortion-protective states.

Additionally, as the authors note, the actual impact of these criminal law claims on the behavior of abortion providers, support networks, and pregnant persons remains largely unmeasured beyond anecdotal evidence of “fear and confusion.” Empirical research measuring the chilling effects—for example, through surveys of abortion fund operators, out-of-state telehealth providers, and informal support networks—would provide crucial evidence about whether the aspirational criminalization is achieving its functional objectives even without formal prosecution.

Criminalization by Other Means carries a lesson that extends beyond abortion law: legal fields with distinct doctrinal traditions are increasingly porous. In Texas, criminal law is being made in venues that criminal law scholars do not usually watch and that private law scholars often dismiss or ignore. Family law has long operated at the intersection of criminal enforcement and state coercion. Wrongful death suits brought by putative fathers, fetal personhood expansion, and campaigns to punish pregnant women are shaping criminal exposure and in turn shape family law doctrines. Engle and Laurin’s reconstruction of a coordinated strategy that moved from small-town ordinances to legislative findings could inspire a more expansive field of vision in family law.

Strangers in a Family Law World?

Jun 24, 2026 Naomi R. CahnAdd a Comment

Naomi R. Cahn

Defining and redefining the family law canon is an ongoing project, with family law casebooks and scholars increasingly questioning the boundaries (or even the existence) of a canon. Kaiponanea Matsumura’s chapter, Close Resemblances: The Legal Construction of the Asian American Family, enters this conversation with an initial observation that: “Most of the laws and cases that comprise the current family law canon are race-neutral.” (p. 2). Matsumura identifies others, including Dorothy Roberts, Angela Onwuachi-Willig, and Solangel Maldonado who are challenging this race-neutrality, and he celebrates these efforts. Placing the chapter within these challenges to the canon, Matsumura argues that Asian Americans largely “continue to be ignored.” (p. 3)

The chapter asks what happens when we bring Asian American families into the family law conversation – or even center them. That critical question is the basis for the chapter’s dual goals; first, bringing Asian Americans into family law scholarship; and second, in actually doing so, showing how family law has centrally shaped the “model minority concept” that has an ongoing, and profound, effect on Asian Americans and the families they form. In the process, Matsumura shows that laws governing immigration, marriage, citizenship, labor, and military policy did not merely discriminate against Asians. They helped define what qualified as an “American” family in the first place.

As a preliminary matter, Matsumura notes that the terminology used in the chapter—“Asian American” and even “family law” itself—are “contested” and prone to being essentialized. (pp. 3-4) Notwithstanding the complexities surrounding the use of these categories, Matsumura points out the importance of even beginning this project. Along those lines, it is interesting to note that the chapter is not part of a family law-focused book, but one on race: that makes it doubly appropriate for the Jotwell Family Law section, part of the ongoing project to bring race into the field.

Exploring a series of historical episodes, Matsumura shows how family norms themselves became racialized through the legal treatment of Asians and how that then impacted subsequent generations of Asian American families. Chinese immigration during the nineteenth century sharpened the boundaries of whiteness itself. Anti-polygamy discourse transformed monogamy into an allegedly civilizational—and implicitly white—ideal. Asian familial practices were depicted as alien, despotic, or morally suspect, allowing white lawmakers and judges to define the “American family” in opposition to them. Anti-miscegenation laws targeting Asians were not, then, solely about racial purity but were also about the law of the family—and family itself. Immigration restrictions excluding Asian women coupled with anti-miscegenation laws impacted the potential for Asian Americans to form families. On this account, family law does not simply reflect social norms; it actively produces racial hierarchy through the creation of normative family ideals.

In the discussion of World War II military policies, Matsumura uncovers a world in which the federal government sorted families according to race, gender, legitimacy, and perceived cultural loyalty. When World War II began, just over “200 Japanese Americans were married to whites, of which 120 were men,” a statistic that we only know because of tracking by the U.S. military. (p. 16)  Japanese American wives of white husbands were treated differently from Japanese American husbands of white wives; mixed-race children were subject to special procedures to prevent their exposure “to infectious Japanese thought”; family separation became an ordinary administrative tool. (p. 17) These passages reveal how family regulation naturalized (and reinforced) multiple hierarchies.

Indeed, another reason that the chapter is so compelling is Matsumura’s insistence that the histories of immigration law and racial exclusion are not tangential to family life: family regulation through these laws becomes a mechanism through which Asian Americans were racialized as permanently foreign.

In a fascinating twist on the history of Asian American families being viewed as “deviant,” (p. 9), Matsumura links that history to the “model minority myth” of Asians. (p. 23). The chapter adds a crucial dimension to the family law literature (and immigration and civil rights scholarship) by showing how the legal suspicion historically directed at Asian families helped create the opposite stereotype: the disciplined and achievement-oriented Asian American family. Matsumura traces that shift to World War II, when, at the time of Japanese Americans’ detention, President Franklin Roosevelt stated that loyalty, not race, mattered to becoming an American (p. 24). At that point, “[d]espite the grievous unfairness of their situation, many in the Japanese American community found it necessary to embrace the assimilationist imperative.” (id.) Rather than treating the stereotype as simply a post-1965 ideological phenomenon, Matsumura roots it in earlier legal efforts to pathologize Asian families—and Asian American families’ agency in responding.  The argument is subtle and persuasive: the strategic deployment of respectability, marital stability, educational attainment, and family cohesion emerged as a response to a legal regime that had rendered Asian families suspect. The argument works because it links legal exclusion to later strategies of respectability and belonging.

Seen this way, the model minority myth is not simply external stereotyping, but is produced through the interaction between law, survival, and racial discipline. This analysis also helps explain why the “family values” dimension of the stereotype has proven so enduring. Matsumura shows that the contemporary image of the stable, high-achieving Asian American family cannot be disentangled from the earlier legal project that sought to prevent Asian family formation altogether. At this point, Matsumura notes that the myth “generalizes about highly distinctive groups in ways that obscure disadvantages and underrepresentation faced by some ethnic communities as well as ongoing discrimination faced by all” (p. 31) (a point that could have been even further explored).

Family law scholarship has increasingly recognized that the state governs families through institutions extending far beyond domestic relations courts and the public welfare system. While building on the scholarship of others, Matsumura’s chapter opens up new conversations.  It insists that we cannot understand the history of American family law while bracketing immigration restrictions, racial exclusions, or labor policies that deliberately prevented Asian American families from forming. This new reading can (and should) play a critical role in the effort to reshape how family law scholars understand the field we study and teach.

Editor’s note: Reviewers choose what to review without input from Section Editors. Jotwell Family Law Section Editor Kaiponanea Matsumura had no role in the editing of this article.

Who Wants What?

Jun 1, 2026 Albertina AntogniniAdd a Comment

Albertina Antognini

Law has mostly dealt with unmarried couples by adopting a wait-and-see approach. Rather than states passing legislation ex ante, courts address issues that arise ex post. Among the most commonly litigated questions is property ownership – where courts are asked to sort out who owns what and who owes what to whom. While much scholarship has considered how law should distribute such property, there is precious little information on what cohabitants themselves want. John Morley and Yair Listokin’s article, What Should You Owe Your Ex? A Survey of Attitudes About the Law of Married and Cohabiting Relationships, provides a timely and important intervention, offering an empirical assessment of what cohabiting couples, as compared to married couples, desire when their relationship ends.

Morley and Listokin thus seek to fill a gap not primarily in law (although that too), but in knowledge: “We bring these wishes into focus by directly asking people in a systematic way for the first time what they want for themselves.” (P. 37.) To do so, they surveyed a nationally representative sample of around 3,000 American adults, half of whom were married and half of whom lived with a partner in a nonmarital relationship.

There are a number of limits to a study like this, which Morley and Listokin readily concede. The paper is effective precisely because it is sanguine about its shortcomings, and candid about what the data set does not address. The survey responses do not provide much insight on race; only 120 of the respondents are Black, and the racial composition of the remaining respondents is undisclosed.[1] (P. 25.) The authors also cannot glean much from their LGBTQ respondents because of the way the data were reported. (P. 20 n.9). Such omissions are particularly significant given the prevalence of nonmarriage across these communities.[2] Perhaps even more fundamentally, Morley and Listokin foreground an endogeneity problem: “When we see that married and cohabiting people want different things, this may simply be because people who want different things from their relationship choose different types of relationships.” (P. 13.) A further chicken-or-egg complication is disentangling how law defines a relationship and the obligations that follow from how individuals themselves understand their relationship and the obligations that follow. That is, if law tells married couples they are entitled to something because of their marriage, then those who are married will respond in ways that reflect that entitlement; if law tells unmarried couples they are entitled to nothing because they are not married, then they will respond in ways that reflect that reality. The survey responses therefore become most indicative of what the law says, rather than what the couples want. This problem might be especially acute where, as here, the questions are framed through marriage – whether the respondents, married or not, believe that “different aspects of the law of marriage should apply to their relationship.” (P. 3.)

The data Morley and Listokin do collect is critical to examine, given the various ways the responses they garner can be interpreted and, eventually, operationalized. First, they find that both married and cohabiting people express agreement with awarding child support and dividing property equitably once the relationship ends. (P. 18.) There are, however, differences worth noting. Cohabiting couples express only 49% agreement with child support while 59% of married couples do; 43% of cohabiting couples agree with basic equitable division of property while that number is 72% for married couples. (Pp. 18-19.) Morley and Listokin point out that some of these differences might be explained by the demographic characteristics of the two cohorts. Married respondents tend to be older and better educated than those who cohabit. (P. 23.) They are also much more likely to be parents. (P. 15, Table 1.) The authors suggest that marital status still has independent force, a conclusion that would be bolstered by a direct comparison between parents – married and unmarried – in order to cleanly separate marital status from parenthood.

Second, the paper reveals that the most salient disagreement between married and cohabiting couples concerns the attitudes respondents have towards awarding alimony at the conclusion of their relationship. Alimony attracts 38% agreement among married couples and 20% agreement among unmarried couples; the disagreement might be more telling, in that 57% of unmarried couples oppose alimony while only 37% of married couples do. (Pp. 18-19.) Although law generally disfavors granting alimony at divorce, and couples at the end of a nonmarital relationship do not often seek its equivalent, the authors spend some time unpacking the delta in preferences because it “attracts the widest divergence of views among our respondents.” (P. 25.)

Morley and Listokin explain that being married and a parent are strongly predictive of a preference for alimony. (Pp. 27-28.) Within the married respondents, they further uncover a gendered distinction: Both men and women agree that alimony, along with other financial obligations, should be imposed on the man more than the woman in a different-sex relationship. (P. 20.) The women surveyed believe this to be true more than the men. (P. 22.) The preference for alimony becomes especially pronounced when the income between the spouses, or their “income share,” differs. (P. 28.) Specifically, the authors note that a spouse who earns no income expresses more agreement with imposing alimony obligations on the other spouse than does the spouse who earns all of the couple’s income. (Pp. 28-29.). Taken together, these findings suggest that the individual who is a lower-income earner, who appears more often to be a woman given the gendered break-down of responses, expects to receive alimony from the breadwinner, beyond what he is willing to give.

Interestingly, the authors observe that the gendered preferences based on differential income fade in the context of cohabiting couples, as do the gendered views of financial obligations generally. (P. 28.) Morley and Listokin reason that this result is consistent with cohabitants engaging in less role specialization throughout their relationship. (P. 29.) The paper’s “income share” variable, however, measures only earnings disparity, not specialization itself. Meaning, a partner with lower income might be unemployed, in school, earlier in their career, or a stay-at-home parent. As such, the relationship between income disparity and role specialization is worth further exploring, given that it raises a number of interesting possibilities that are not only, or even principally, explained by the relative degrees of specialization (presumed to be high in marriage and low in cohabitation).

For example, as Morley and Listokin remark, the less-gendered preferences expressed in the cohabiting context could be a function of couples agreeing to fewer obligations overall, making their potentially still-gendered preferences less obvious. (P. 22.) Or the income differential could be less predictive in the context of cohabiting couples because there are fewer assets to distribute (as seen by their lower average income). Or cohabitants’ income may be more uniform (accepting that there is some disparity), which coexists with, rather than contradicts, role specialization.[3] Or they might have lower expectations of their partner – either because they want less or because the legal regime signals they should expect less. These alternative explanations all show that the preferences cohabiting couples convey might reveal something other than an egalitarian attitude towards, or an actual egalitarian breakdown of, financial and nonfinancial contributions to the relationship.

Considering these varied accounts for preferences regarding property division and role specialization outside of marriage, and parsing the role that gender in particular plays, matter a great deal in thinking about law reform, as Morley and Listokin emphasize.[4] (Pp. 5–8.) If, say, cohabiting relations are in fact more egalitarian than marriages and the individuals within them have chosen a relationship form that reflects those values, then imposing laws that mandate sharing beyond their agreed-upon preferences would be inapposite and, where overriding explicit preferences, paternalistic. If, on the other hand, these cohabiting couples still hold gendered attitudes towards the division of labor that are being suppressed because they lack property to distribute, or because they believe they cannot expect anything from each other, then we might imagine a different set of law reform proposals taking hold.

To be clear, these findings do not have much to say about courts’ current gendered devaluation of domestic labor – other than to show that law might influence what kind of labor we think of as generating value. But, with reference to courts specifically, the data Morley and Listokin plumb demonstrate that in the rare situation where there is a written agreement between a cohabiting couple, it (unsurprisingly) positively predicts an expectation of alimony. (P. 32.) These agreements seem to reflect an understanding that there will be some degree of sharing after the relationship ends. Courts should therefore be cautious in refusing to enforce such agreements where they exist. Insofar as statutory reform is an option, Morley and Listokin argue that these responses indicate support for something like the Uniform Cohabitants’ Economic Remedies Act, which allows cohabitants to enforce claims generally available in contract and equity. (P. 37.)

Regardless of what path the law of nonmarriage ultimately takes, Morley and Listokin have provided a crucial intervention – by grounding discussions of reform in what individuals who are not married might actually want.

[1] See R.A. Lenhardt, Race Matters in Research on Nonmarital Unions: A Response to Amanda Jane Miller’s and Sharon Sassler’s “Don’t Force My Hand”: Gender and Social Class Variation in Relationship Negotiation, 51 Ariz. St. L.J. 1317, 1318 (2019) (“race matters in the important work being done on nonmarriage and [] we can learn a lot about race, inequality, and intimate choice by attending to it more intentionally”).

[2] Around 41% of partnered same-sex households are unmarried. See https://www.pewresearch.org/social-trends/2025/06/12/rising-number-of-u-s-households-are-headed-by-married-same-sex-couples/.  While 57% of white adults are married, only 33% of Black adults are. See https://www.pewresearch.org/social-trends/2019/11/06/the-landscape-of-marriage-and-cohabitation-in-the-u-s/. Black adults are not, however, necessarily cohabiting at higher rates. See id. (noting that 8% of white and Hispanic couples are cohabiting and 7% of Black couples are).

[3] In Cohabitation Nation, sociologists Sharon Sassler and Amanda Miller consider the question of how middle- and lower-class cohabiting couples address the division of domestic labor. They found that the majority of couples surveyed tended to follow “conventional practices, where the woman does the bulk of the domestic labor,” which was even more pronounced among lower-class – which Sassler and Miller refer to as service-class – couples. The service-class women also worked outside of the home, although they typically made less than their male counterparts. Sharon Sassler & Amanda Miller, Cohabitation Nation: Gender, Class, and the Remaking of Relationships 75-76 (2017).

[4] See also Erez Aloni, Married by Default, 62 Osgoode Hall L.J. (2025) (analyzing the downsides of an opt-out system for cohabitants in British Columbia, drawing on interviews with thirty couples who cohabited between two to five years).

My Child

Apr 28, 2026 Kaiponanea MatsumuraAdd a Comment

Kaiponanea Matsumura

As a person of a certain age, I’ve attended my fair share of dinner parties hosted by parents of young children. More times than I can count, the conversation has been interrupted by sounds emanating from a baby monitor; parents will activate their smartphones, searching night-vision images of fidgeting children for the telltale glowing eyes that indicate that their child is awake. This innocuous-seeming surveillance is the entry point into what Nila Bala describes as “a parenting culture…defined by constant involvement and supervision” in her compelling new article, Guilt by Parenthood. (P. 41.) As children age, parents monitor their locations with wearables, track their smart phone usage, and watch their comings and goings through motion-activated cameras. In all my years passively observing these parents trade one form of monitoring for another, only a few have ever even questioned whether they were invading the privacy of their children. None of them doubted their right to do so.

Much has been written by family law scholars in recent years about the expansion and evolution of parental rights as a legal concept, especially as courts and lawmakers have used it as a justification to limit what is taught in schools and to curtail children’s exploration of their gender and sexual identities. Much, too, has been written by criminal law scholars about the public’s desire to punish parents for the transgressions of their children, as recent high-profile prosecutions of the parents of school shooters illustrate. Bala, whose expertise lies at the intersection of both realms, convincingly argues that recent developments in these seemingly disparate areas share the same normative underpinning. The assumption that parents have the right to monitor their children draws support from the conception of children as property of their parents. This conception is a holdover of coverture, the regime that vested total control—akin to ownership—of wives and children in the male head of household.

The first important contribution of Bala’s article is to synthesize an account of parental liability in criminal law. Although scholars have been critical of statutes holding parents criminally liable for the acts of their children for decades, the issue of parental liability has gained visibility with the recent convictions of parents of school shooters—prosecutions brought under general criminal laws rather than laws speaking directly to parental liability. What Bala shows is that high-profile prosecutions are but the tip of the iceberg: states have increasingly enacted legislation imposing parental liability for failure to safeguard firearms, failing to prevent online misconduct like cyberbullying, and promoting or restricting access to reproductive and gender-affirming care. (Pp. 8-13.) Many municipalities have also enacted laws imposing criminal liability on parents for misconduct like truancy and curfew violations. (Pp. 14-16.) Bala’s descriptive account not only succeeds in capturing the expansiveness of the phenomenon, but also reveals common patterns in these laws, like the frequent absence of mens rea requirements and the pervasive imposition of criminal fines.

Bala then juxtaposes this expansion of parental liability with an account of the parental rights doctrine, which is also the site of significant legal activity and evolution. She points to the enactment of laws at the state level granting parents greater control over public school curriculum as well as access to information about their children pertaining to matters like the child’s chosen gender identity. Some states have also enacted laws requiring parental consent for access to reproductive and sexual healthcare. And, of course, the U.S. Supreme Court recently held in Mahmoud v. Taylor that parents are entitled to notice of, and the option to opt out from, LGBTQ+-inclusive curriculum that they find objectionable. The through-line of these developments is the aggrandizement of parental authority vis-à-vis the state, and the continued absence of children’s autonomy as a relevant consideration. (P. 28.)

Bala argues that although one might perceive a tension in these developments—the expansion of parental authority and the imposition of criminal consequences for parental inaction—they both “rest on a shared analytical foundation: a legal presumption of parental control so strong that it borders on the erasure of the child as a distinct agent, with her own interests.” (P. 28.) She persuasively argues, building on the work of Barbara Bennett Woodhouse, that this assumption of parental control was central to the foundational Meyer v. Nebraska and Pierce v. Society of Sisters cases—both of which objected to the confiscation of the parents’ proprietary interest in deciding how to educate their children (albeit in dicta). Laws imposing criminal liability likewise turn on the assumption of parental control, which explains the absence of parental mens rea requirements. “If the child is understood to fully ‘belong’ to the parent, then any misconduct is attributed to the parent.” (P. 37.)

Bala rounds out the article by identifying and critiquing problems caused by the persistent ideology of child coverture. As an initial matter, she criticizes child coverture for justifying the disregard of children’s autonomy and individuality. She notes how parental liability insidiously corrupts the parent-child relationship by incentivizing, and in some cases requiring, parents to surveil and control their children. Through this process, children lose privacy rights nominally protected by the Fourth Amendment: the state “effectively deputizes parents to perform oversight it could not constitutionally impose itself[.]” (Pp. 39-40.) Fragile parent-child relationships are further strained. And the entire surveillance apparatus can be applied unequally based on race and class, justifying the monitoring of families of color and making it more likely that those families enter the child welfare system.

Bala closes with two reasonable reforms. The first is to reconceptualize the parent-child relationship for the purposes of criminal law as one akin to agency rather than ownership. Under this approach, a parent (principal) would only be liable when the child (agent) acted “within the scope” of the parent-child relationship, the parent “exercise[d] control over the conduct,” or when the child acted “to further the [parent’s] purposes.” (P. 49.) This change would effectively mean that parents could not be prosecuted simply because of their parental status. For example, in a typical case involving parental prosecution for a child’s truancy, the prosecution would have to show that the parent “actively facilitate[d]” or “encourage[d]” the child to miss school; otherwise, parents would not be criminally liable. (Pp. 49-50.) Bala argues that by narrowing the scope of parental responsibility, the shared responsibility of the state for the raising of children would come into sharper view. Her second suggested reform is therefore to increase state support for families in the form of economic support payments, child tax credits, and childcare grants. (P. 54.)

Both of these ideas are good ones, but they only go part of the way to addressing the insight that this article so compellingly reveals: the need for a new conceptualization of the parent-child relationship. Bala backs off from saying that the agency relationship is the most appropriate paradigm, characterizing it instead as an “illustrative” “analogy.” (P. 49.) Moreover, she expressly limits the scope of her analysis to the criminal law realm, setting aside civil parental liability. (P. 7.) These are perfectly reasonable moves and do not detract from the quality of the article, but they leave room for future work in this area. Any reassessment of the parent-child relationship should account for all its manifestations.

Moreover, as Bala herself acknowledges, the expansion of parental rights and the imposition of parental liability are at least partly based on underlying substantive views about matters besides the parent-child relationship itself. As Aníbal Rosario Lebrón has argued, courts have used rights-granting logic initially developed to protect vulnerable minorities to grant counter-rights to majorities, effectively wiping away gains in the realms of sexual orientation and gender equality. He points out that when the Supreme Court decided United States v. Skrmetti, the case upholding Tennessee’s gender-affirming care ban, concerns about parental rights were conspicuously absent despite the parents’ support for their children’s right to transition. This example is consistent with Bala’s insight that “parental rights have historically operated less as a genuine recognition of family autonomy and more as a strategic tool, deployed or withheld depending on whether they serve state interests.” (P. 34.)

We must therefore ask what interests the parent-child relationship serves. Here, too, Bala points to an answer that exists somewhat apart from her reform proposals. Bala notes that the concept of parens patriae and the emergence of the juvenile court system were rooted in the idea of “parental blame,” which served to distinguish between bad and good parents, or “our” and “other people’s” children. (Pp. 17-18.) At the close of the nineteenth century and during the first several decades of the twentieth century, these distinctions were thought to reflect genetics. Lawmakers embraced the logic of eugenics that treated criminal behavior as hereditary. (P. 19.) Perhaps these beliefs linger. Is it a mere coincidence that Black and poor parents are disproportionately targeted under the current regime,³ and that upper-middle-class surveillance of children is not pathologized but celebrated? Although Bala does not make this claim, perhaps the system of parental discipline that she describes is nothing short of the law operating as it should to denote “good” and “bad” subjects in a stunning example of Foucauldian biopower.

If all this is true, then genetic parenthood and child coverture are mutually constitutive. The genetic tie traditionally implied in the phrase “my child” bolsters claims of ownership; the ownership imperative elevates genetic relationships over non-genetic ones. Bala’s insightful article provides the means to see that one cannot be dismantled while the other remains intact.⁵

1. As Dorothy Roberts has argued, our society and legal system continue to treat race as the ultimate heritable characteristic. Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209, 211 (1995).
3. As Dorothy Roberts has argued, our society and legal system continue to treat race as the ultimate heritable characteristic.⁴Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209, 211 (1995).

How Should a Mother Feel?

Mar 27, 2026 Sarah LorrAdd a Comment

Sarah Lorr

What makes a good mother? This question, once answered simply by staying alive, has become more complicated over time. For example, the recent Heritage Foundation Report, Saving America by Saving the Family: A Foundation for the Next 250 Years, seems to suggest that a good mother is defined, at least in part, by her marital status. Some might locate good mothering in the willingness and ability to deeply research childcare-related choices and provide labor-intensive care, while others caution against this sort of “intensive parenting.” And how should a mother feel? Is it healthy to feel conflicted about motherhood? Is it normal?

In a cultural context that prizes the selfless mother above all, Professor Elizabeth Kukura’s engaging and insightful article, Normalizing Maternal Ambivalence, argues that scrutinizing and punishing maternal ambivalence is the result of restrictive gender stereotypes about the self-sacrificing and overwhelmingly joyful mother. Maternal ambivalence, which is “both common and normal,” can be defined as having mixed feelings about mothering and the role of motherhood. Psychologists consider such complex, uncertain feelings about motherhood typical; the multiplicity of modern motherhood memoirs and their market success offer evidence that ambivalent feelings about motherhood are both common and relatable to many. Despite the ubiquity of maternal ambivalence, Professor Kukura shows us that it can be a basis to punish mothers in the criminal legal system and separate families in the family regulation system.

Professor Kukura begins by defining maternal ambivalence. Using motherhood memoirs, social science, sociology, and psychotherapy, Kukura is careful to distinguish maternal ambivalence from postpartum depression and the stress of parenthood. Postpartum depression—a mood disorder that can develop after a mother gives birth—is marked by purely negative experiences and feelings. The stress of parenthood is the mundane experience of parenting: the daily grind of parenting, the stress of a toddler’s tantrums, the harried period between school pickup and dinner. In contrast, maternal ambivalence is marked simply by mixed feelings about the role of mother. Still, the relationship between the two experiences and maternal ambivalence is nonetheless complex. The sadness associated with postpartum depression can be mistaken for ambivalence, and the stress of parenting may indeed make some mothers more ambivalent about taking on the role.

Professor Kukura is most concerned with normalizing maternal ambivalence because of the ways in which it has become a basis for judging and even prosecuting mothers. She describes the way women who experience miscarriages and still births—especially poor and non-white women—can face punishment based on reproductive outcomes. Mothers who share feelings of being overwhelmed or who previously considered an abortion can be prosecuted or investigated for having still births, revealing how state authorities and medical professionals have coextensive and overlapping power to police mothers who are perceived as deviant. Professor Kukura demonstrates that vague statutes designed to criminalize the act of hiding a fetus or stillborn baby (called concealment of birth) and abuse of a corpse can be used to prosecute and punish maternal ambivalence. We also learn the way expressions of ambivalence—such as considering abortions in prior pregnancies, sharing uncertainty about an upcoming childbirth, or verbalizing the stress and anxiety experienced during pregnancy—can be understood as indicators that a mother might harm her children in the family court context. In these cases, state investigators and judges sometimes remove children from mothers who have expressed anxiety or uncertainty about their role as mothers.

Professor Kukura then offers another gift to her reader: an account of the true ubiquity of maternal ambivalence. Here, she recounts the range of experiences ambivalent mothers-to-be might have: inconsistent use of contraceptives, delay of decisions related to childbearing, voluntary childlessness, and others. If a pregnancy is carried to term, the experience of ambivalence may be complicated further by what sociologist Sharon Hays calls “the ideology of intensive mothering.” (P. 591, n. 175.) This is based on white, middle- or upper-class norms that call upon mothers to put their children above themselves and prioritize the child as the center of their lives. While apparently exalting motherhood, these norms also set a standard that is nearly impossible to reach. Such strong pressure to reach intensely high standards can itself create ambivalence.

Kukura next turns to the psychology and sociology of maternal ambivalence. Her treatment of maternal ambivalence is nuanced, and she takes care to show that the ideals related to good motherhood and what it might mean to be a selfless mother differ by race, class, and other cultural contexts. For example, while the white middle class norm may regard selflessness as forgoing work outside of the home, “[a]gainst the backdrop of economic struggle, a good mother is someone who is able to provide for their children and keep them safe.” (P. 603.) The reality that different cultures have different values about motherhood makes clear both that stereotypes—derived mostly from white, middle- or upper-class norms—motivate the legal understanding of what it means to be a “good mother” and why it is so problematic for the law to punish or investigate expressions of perceived ambivalence at all.

Professor Kukura ends by making a strong case that the punishment of maternal ambivalence is a discriminatory form of sex stereotyping. She argues that punishing women who express ambivalence about motherhood rest on a culturally produced, internalized, concept of the ideal mother. When women deviate from this stereotypical ideal—a notion informed by white middle-class values associated with stay-at-home mothers—they are being punished based on their failure to meet a sex-based stereotype.

From there, she puts forward several legal interventions to help normalize maternal ambivalence. Though she acknowledges the underperformance of past federal policies designed to support mothers, she suggests universal access to prenatal, childbirth, and postpartum doula support, lactation support, and “Finnish-style newborn starter kits,” regardless of insurance status or ability to pay. She also suggests universal access to counseling for all pregnant and postpartum women to not only offer concrete support but also to normalize the idea that many women might experience identity conflicts around motherhood. Even more concretely, she suggests repealing vague concealment statutes to foreclose the prosecution and punishment of maternal ambivalence; training mandatory reporters and medical providers on both the consequences and true contours of their reporting obligations; and the adoption of evidence rules that would exclude evidence of maternal ambivalence in criminal and family court.

By offering this well-researched critique of the role of maternal ambivalence in prosecuting mothers or separating them from their families, Professor Kukura does exactly what she calls upon the law to do: normalize maternal ambivalence. All mothers—prosecuted or not—are better off for this work.

Meeting the Challenge of Civic Education in Hyperpolarized Times

Feb 26, 2026 Linda C. McClainAdd a Comment

Linda C. McClain

What role can civic education play in polarized times? That is the pressing question posed by Civic Education in Polarized Times, edited by Elizabeth Beaumont and Eric Beerbohm.⁶ As Beaumont’s introduction explains, “as political polarization has intensified across the world, civic education seems more urgent, but it has also become more challenging.” (P. 1.) The volume brings together an eminent group of education scholars, legal scholars, political theorists, and philosophers to consider challenging questions about how to carry out civic education “in a polarized era” and “for a polarized era.” (P. 2.)

The first set of questions includes the impact of polarization on efforts to teach civic education when “schools, administrators, teachers, parents, and teachers are also operating in a divided world.” (P. 2.) Questions about how to prepare students for a polarized world include determining the aims of civic education amidst hyperpolarization, what types of “civic learning” hold the greatest promise to help students prepare to navigate their way in the current political landscape, and whether civic education should seek to “reduce or counteract polarization.” (P. 2.)

These questions–and the range of answers provided–have much to offer family law scholars and teachers. Civic education implicates the dual authority, in the U.S. constitutional order, of parents and schools for educating children and generating the capacities for democratic and personal self-government. Children are neither, as Pierce v. Society of Sisters famously expressed it, “mere creatures of the state” nor, as political scientist Stephen Macedo aptly puts it (in Diversity and Distrust: Civic Education in a Multicultural Democracy  (2000)), “simply creatures of their parents.” (P. 243.)

The idea that families play an indispensable role in forming good citizens has a long history, evident in references to families as “seedbeds” of civic virtue.⁷ So, too, does the premise that public education, as Brown v. Board of Education stated, provides the “very foundation of good citizenship” and for “success in life.”

The tension between parents and schools was revisited in the U.S. Supreme Court’s recent decision, Mahmoud v. Taylor, which held that religious parents had a First Amendment free exercise right to opt their elementary-school-aged children out of English Language Arts curriculum that featured “LGBTQ+-inclusive” storybooks that (the Court declared) threatened their ability to educate their children about marriage, gender, and sexuality. The Court gave little weight to the civic purposes undergirding this curriculum, such as “promoting diversity, equity, and nondiscrimination” and providing curriculum that “promotes equity, respect, and civility” by more inclusive representation of the school district’s children and families.

Civic Education in Polarized Times confronts how schools can carry out their civic role at a time of “pernicious” polarization, defined as “division into hostile camps with fierce animosities and distrust akin to political sectarianism or tribalism, by its entrenchment in political dynamics, and by its array of harmful effects” on democratic citizenship, norms, and institutions. (P. 6.) Civic education “has become part of the political tug-of-war.” (P. 8.) There is widespread agreement on the crucial role of educating school children about civics and history, but sharp disagreement over the how and what.

A sobering example is the competing narratives about the January 6^th insurrection—a violent effort to stop the certification of President Biden as the legitimate winner of the 2020 election. Some educators called January 6 a “Sputnik moment” for reviving civics instruction (P. 98), referencing the U.S.’s ramped up investment in what is now called STEM in the wake of the Soviet Union’s 1957 launch of a rocket into space. On this logic, a better grounding in basic processes of democratic governance, including elections, might render people less vulnerable to believing conspiracy theories and misinformation—and resorting to violence.⁸ Robust civics instruction might counter the troubling version of patriotism that animated the “Stop the Steal” movement and January 6^th attack on the Capitol: the narrative that because Trump was “chosen by God” to serve two terms (a belief “immune from factual refutation”), “good Christians” must join the battle to fight the “forces of evil” seeking to hinder God’s plan.⁹ Five years later, with Donald Trump back in office, that dangerous version of patriotism continues: in the MAGA narrative about January 6, the insurrectionists are now-pardoned patriots.

I highlight two of the many timely and insightful perspectives that Civic Education in Polarized Times offers on how to engage in civic education given this political landscape. In Civic Education, Students’ Rights, and the Supreme Court, legal scholar Justin Driver argues for a “student-centered approach to civic education” that centers “the historic struggles for students’ constitutional rights.” (P. 101.) Such education would foreground “the major Supreme Court decisions that have shaped the everyday lives of students across the nation” and use those decisions “as a springboard for discussing the broader issues, arguments, and student activism that fueled those controversies.” (P. 101.)

Driver’s inspiration is Chief Justice Roberts’ 2019 “Year-End Report on the Federal Judiciary,” in which Roberts wrote: “By virtue of their judicial responsibilities, judges are necessarily engaged in civic education.” (P. 97.) As an example, Roberts offered Brown, concise enough to be reprinted in major newspapers and provide “every citizen [an opportunity to] understand the Court’s rationale.” (P. 98.) Roberts cautioned that “civic education has fallen by the wayside.” (P. 98.)

Building on Roberts, Driver argues that “the facts of leading cases involving students’ constitutional rights will fascinate and captivate students in a visceral fashion that no other civic-education topic can match,” raising “scintillating” questions about (among other things) whether students’ constitutional rights constrain school authority to limit student protest and speech (including off-campus) or to compel speech, to physically discipline, strip-search, and drug test students, or to ban unauthorized immigrants from obtaining a K-12 education. (Pp. 101-102.) Students would learn about the role of prior generations of young people in standing up for their rights and shaping the constitutional order. They would evaluate the “sharply divergent views” among the Justices about what citizenship for young people means. (P. 106.)

On the one hand, there is the “robust conception” of student citizenship in Tinker v. Des Moines Independent School District and other cases: American schools are “the nurseries of democracy.” As Justice Jackson wrote in West Virginia Board of Education v Barnette, “[t]hat [public schools] are educating the young for citizenship is a reason for scrupulous protection of Constitutional freedoms of the individual…if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” (quoted on P. 105.) On the other hand, the Court sometimes espouses a “Report Card Citizenship”: a thinner, “even anemic,” view of citizenship that suggest schools should concentrate on imposing “order” and “discipline,” which are “integral” and “important” to “training our children to be good citizens.” (P. 106.)

Such civic education, Driver suggests, could help to reduce political polarization and increase empathic understanding. (P. 104.) As students engage in “active debate” about the proper scope of constitutional rights in schools in “novel factual scenarios,” they would learn to “disagree with each other’s constitutional views respectfully, and thereby aid our ailing democratic experiments.” (P. 104.)

The tool of debate is also central to the contribution by political scientists Sigal Ben-Porath, Amy Gutmann, and the late Dennis Thompson, Teaching Competition and Cooperation in Civic Education. Given that the politics in which young people will participate “is likely to remain hyperpolarized and competitive for the foreseeable future,” they argue that a civic education focused only on the skill of cooperating for a “common good” cannot meet the task of developing “effective democratic citizens.” (P. 221.) Instead, students should develop “the skills and attitudes of both competition and cooperation.” (P. 222-23.) Further, both competition (as in voting) and cooperation (working together to find common ground) are important components of democracy; each has an ethical dimension, such as “fair play and mutual respect.” (P. 228.)

Classroom debates can be an effective method for teaching competition: while competition’s aim is to win, competition should be “fair,” opponents should not be demonized, and participants should accept the results. Learning effective competition can be motivating and empowering for all young people, and for “marginalized students” in particular: they can learn how to defend their interests by engaging in practices like “nonviolent protect, political campaigning, and turning out the vote.” (Pp. 228-29.)

To teach cooperation for the common good, students could follow a classroom debate over a controversial issues with an exercise of trying cooperatively to “reach a collective decision” about those issues (for example, by drafting and enacting a bill). The authors contend: “by teaching competition, we bring out the difficulties of polarized politics, and by then teaching cooperation, we try to determine how they can be overcome.” (P. 229.) Students also learn about compromise, which requires both cooperative and competitive skills and attitudes. (P. 230.)

This review has provided a small sampling of the contributions included in Civic Education in Polarized Times, which explore topics like the challenges posed for civic education by racial, gender, and socioeconomic inequalities in U.S. schools and society and how best to cultivate more informed and participatory citizenship, including critical reflection about the gap between the Nation’s ideals and practices. I recommend the entire volume to those interested in how to bolster civic education in the current challenging political climate—and the relationship between parents, child, and state. 

1. Civic Education in Polarized Times is the sixty-sixth volume of NOMOS, the annual yearbook of the interdisciplinary American Society for Political and Legal Philosophy and grew out of a 2021 conference (xi). The volume includes an introduction by Beaumont and chapters authored by (in order): Seana Valentine Shiffrin; Brandon M. Terry; Robert L. Tsai; Justin Driver; Jennifer Morton; Lisa García Bedolla; Ilana Paul-Binyamin, Wurud Jayusi, and Yael (Yuli) Tamir; Rima Basu; Kristine L. Bowman; and Sigal Ben-Porath, Amy Gutmann, and Dennis Thompson.
2. See Linda C. McClain, The Place of Families 50-84 (2006).
3. Anthony W. Crowell, Civic Anemia: Law Schools Should Give Boosters to Counter Its Effects, in Beyond Imagination?: The January 6 Insurrection 231 (2022).
4. Robert K. Vischer, Christian Nationalism and the Rule of Law, in Beyond Imagination?: The January 6 Insurrection 141-149 (2022).

What We Can Learn from Family Abolition

Jan 27, 2026 Brian BixAdd a Comment

Brian Bix

There are benefits to thinking about extreme proposals—suggested utopias and radical restructurings of institutions. However unlikely it might be that such proposals are ever put into effect, they help us to think more clearly both about what needs to be changed and about what might yet be feasible. The particular extreme or utopian (or perhaps dystopian) set of proposals Susan Frelich Appleton and Albertina Antognini consider in their recent work is, as their title indicates, “abolishing the family.” While family, in conventional social and political ideologies, is often presented as an ideal, it has also for a long time been the subject of sharp criticism by many feminists and more than a few family law scholars. And, from the perspective of such critics, moderate reforms have turned out to be frustrating, teaching us (as the authors put it) “not only that inequality and its counterpart, privilege, continuously find ways to reassert themselves” (P. 60, fn omitted), but also that many suggested reforms “have failed because they defy core pillars of what families are assumed to be or do.” (P. 61.)

As the authors note (P. 4), the analysis of family abolition broadly evokes the discussion of abolishing marriage associated with Martha Fineman in work such as The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies and others (see, e.g., the contributors to Anita Bernstein (ed.), Marriage Proposals: Questioning a Legal Status and Elizabeth Brake (ed.), After Marriage: Rethinking Marital Relationships). During the later stages of the same-sex marriage movement, some more conservative voices also urged getting the state out of the business of recognizing marriage (so as not to be forced to give official sanction to same-sex unions). Despite such right-wing arguments joining critiques from within the LGBTQ+ movement and older left-wing arguments against marriage, civil marriage, now expanded to include same-sex couples, is still with us, and with little likelihood of imminent abolition.

In any event, what does it mean to want to “abolish marriage”? Appleton and Antognini discuss a range of ideas and proposals from other disciplines that fall under that label, and show how the proposals tend to aim at certain problems with families and family law: “keeping dependency private, devaluing care, policing families that depart from the prevailing norm, and camouflaging legal constructions as ‘natural’ facts.” (P. 46.) As the authors note, “family law’s participation [in privatizing support] is often difficult to see because it consistently hides its involvement by appealing to nature or how things are.” (P. 20.)

The advocates of those proposals have generally been clear that they were not trying to tell people whom to love or with whom to live (the authors quote one activist in the area, Sophie Lewis, as emphasizing that “‘[m]ost family abolitionists love their families’” (P. 61, brackets in original.)). However, some of the proposals summarized do prescribe certain aspects of family structure, in that they would determine how children were to be raised (according to some proposals, this would be done collectively (Pp. 32-35.)).

One obvious theme to these proposals is that the alternative to delegation to families tends to be a greater role for the marketplace (for example, removing legal penalties for prostitution and greater legal recognition for surrogacy (e.g., Pp. 27-32)) and/or a greater role for the state (e.g., Pp. 42-43). The latter may seem especially dystopian to many these days, as we watch with horror what is being done by and in the name of the federal government and some state governments.

Ultimately, Appleton and Antognini conclude that, as with many utopian proposals, the approaches seeking to remove the special status of families or to remove current requirements and prohibitions in the interactions of partners and parents with their children, tend either to be entirely unworkable or to carry problems even worse than the status quo. The article notes that past experiments with communal care for children “offer[] a cautionary talk about the viability of an arrangement built on the forced separation of parents and children.” (P. 35.) As Appleton and Antognini point out, some of the abolitionist theorists seem unbothered by hard issues left unresolved by their proposals: Sophie Lewis is said to “reject as a ‘bad question’ any inquiry about who has responsibility for care of a dependent or vulnerable individual.” (P. 45.)

The authors conclude (again quoting Sophie Lewis) that “it remains near impossible to ‘imagine the end of . . . the family.’” (P. 61.) Appleton and Antognini praise abolitionist proposals for the way they “expose the family as contingent, and contestable” and undermine rhetoric portraying current practices as natural or inevitable. Such proposals also show, indirectly, “why reform efforts have proven so difficult to implement.” (P. 60.) Given how we think about families and the role the state gives to families within society (like privatizing care), these pre-existing conceptions make it hard to change just one aspect of family law and family life. Abolitionist proposals may be the necessary “first step[s] in being able to even consider alternat[ive] structures.” (P. 61.)

Before Meyer and Pierce

Dec 15, 2025 Josh Gupta-KaganAdd a Comment

Josh Gupta-Kagan

In the standard story taught in typical Parents, Children, and the State or Children & the Law courses, analysis of parental rights has a clear beginning. In 1923, at the height of the Lochner era, in Meyer v. Nebraska, a case of first impression, the U.S. Supreme Court declared that “[w]ithout doubt” the Due Process Clause protected the right “to marry [and] establish a home and bring up children.” Two years later, in Pierce v. Society of Sisters, the Court recognized “the liberty of parents and guardians to direct the upbringing and education of children under their control.” But, in The Origins of Family Rights and Family Regulation: A Dual History, Laura Savarese demonstrates that the Court did not invent those rights. Rather, those cases followed a string of state court decisions from the end of the Civil War through the Progressive Era that established core legal protections for family integrity. Savarese’s work deepens our understanding of parental rights, helps protect those rights from potential attack, and informs legal advocacy to constrain the present-day family regulation (a.k.a. child protection) system.

Savarese identifies and fills an important gap in conventional understanding of foundational family law doctrines. The crucial rights that the U.S. Supreme Court would eventually articulate were born in parents’ resistance to the early family regulation system’s efforts to take and keep their children. That system empowered private institutions and organizations to house children who were found destitute or had been deemed neglected by their parents or delinquent. The family separations that resulted were largely upheld by state courts as lawful exercises of states’ parens patriae authority (a concept courts uncritically imported from English law), most famously in the Pennsylvania Supreme Court’s 1839 decision Ex Parte Crouse (4 Whart. 9). But, as Savarese points out, after the Civil War, parents began to succeed with state habeas petitions challenging children’s initial or continued commitment to these institutions because parents were denied notice of the charges against them or their children, or that specific cases violated statutory grounds.

These cases established elemental due process rights: procedural rights to notice and an opportunity to be heard on children’s placement and specific allegations (not vague assertions of delinquency or neglect), and substantive rules that parents maintain superior rights to foster parents and the system should often reunify families upon evidence of rehabilitation. (P. 21.) Each of these points is a foundational element of modern family regulation law, ratified by 20^th century Supreme Court cases or statutes: In re Gault required notice of allegations against children in delinquency cases, Santosky v. Kramer required “fundamentally fair procedures” in termination of parental rights cases, Smith v. OFFER recognized parents’ superior status to foster parents, and federal law required states to make “reasonable efforts…to preserve and reunify families” (42 U.S.C. § 671(a)(15)(B)).

This litigation also generated some limited victories that also revealed troublesome elements of family regulation law that persist to this day. First, when parents sought to regain custody of children, they won rulings that courts could order children released over institutions’ objections, but that still granted trial courts wide discretion to determine whether and when to reunify families—discretion often used to deny parents’ requests. (Pp. 34-38.)

These cases also exposed the family regulation system’s predominant focus on poor families. The 19^th century cases challenged the common law rule that parental poverty abrogated parental rights, leading courts to draw a line between mere poverty and neglect and delinquency. (Pp. 30-31.) That line later informed legislation in some states. (Pp. 53-54.) While these rules establish an important principle—poverty alone cannot justify separating a family—they failed to establish meaningful legal tests for distinguishing poverty from the often-amorphous concept of neglect. More optimistically, Savarese credits 19^th century habeas litigation with helping inspire the social safety net expansion via early 20^th century Progressive reforms; if poverty could lead to family separations, the state should help alleviate the most extreme forms of poverty.

Finally, these habeas cases indirectly led to the development of a pro-termination of parental rights (TPR) ideology. Some cases challenged the institutions’ efforts to place children for adoption and thereby terminate children’s relationship with their parents. Courts split, with some insisting that parents were entitled to due process before an adoption and others treating parents as obstacles to their children’s interests and upholding adoptions without so much as notice to parents of the adoption proceeding. (P. 48.) As a matter of due process, the former view has largely won out in the modern era. But Savarese aptly notes that the 19^th century cases catalyzed the argument that once children are separated from parents, parents’ rights “frustrated efforts to place needy children in new homes” and were harmful to children. Savarese finds that view echoed in the much-criticized Adoption and Safe Families’ Act of 1997’s requirement that CPS agencies seek terminations on an expedited timeline, which has led to tens of thousands of TPRs annually. (Pp. 54-56.)

Savarese’s history also sheds light on two other doctrinal questions that resonate in the 2020s. First, establishing how 19^th century courts widely respected parental rights helps explain why parental rights should remain secure post-Dobbs v. Jackson Women’s Health Organization. These “unenumerated family rights” (P. 50) are justified not only out of respect for the Supreme Court’s 1920s precedents (and those that followed) but because they can trace their origins more deeply into history and tradition. (This point builds on other scholarship, including Peggy Cooper Davis’s history of family integrity’s centrality to the 14^th Amendment and Christine Gottlieb’s exploration of the “enduring vitality of Meyer and Pierce” post-Dobbs).

Second, Savarese explains how the 19^th century cases recognized children’s right to liberty from institutional custody and to live with their parents, a formulation that presents children’s rights as reciprocal versions of parental rights. (P. 24.) Savarese thus provides strong doctrinal and historical support for a key principle: that children’s rights are not in tension with parental rights because the most fundamental children’s right is to be with their parents, supporting more contemporary arguments about children’s right to family integrity and contrary to efforts to use children’s rights rhetoric to drive a wedge between family members. (Pp. 51-52.)