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Volume 41, Issue 4, Summer 2008

How Bad Are Mandatory Arbitration Terms? Omri Ben-Shahar

There is a new bad boy in the contract law block: the mandatory arbitration clause. Increasingly pervasive in the boilerplate portion of mass contracts, the mandatory arbitration clause controls the manner by which aggrieved parties can vindicate their rights, and-according to a widely held viewÑeffectively diminishes access to justice.


Arbitration Costs And Forum Accessibility: Empirical Evidence Christopher R. Drahozal

So which is it? Is arbitration cheaper than litigation, or more expensive? Does arbitration enhance access to justice for consumers and employees, or does it prevent them from vindicating their legal rights?




Arbitration's Summer Soldiers: An Empirical Study of Arbitration Clauses And Nonconsumer Contracts Theodore Eisenberg
Geoffrey Miller
Emily Sherwin

We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared the use of arbitration clauses in firms' consumer and nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in the vast majority of material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. Our data suggest that the frequent use of arbitration clauses in the same firms' consumer contracts may be an effort to preclude aggregate consumer action rather than, as often claimed, an effort to promote fair and efficient dispute resolution.

Mandatory Arbitration: Why It's Better Than It Looks Theodore J. St. Antoine

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even better, although successful plaintiffs get larger monetary awards in court. Perhaps most important as a practical matter, lower-paid employees generally cannot get access to court while they can secure a hearing in arbitration. For most such workers, arbitration may be the only realistic option. This Article will conclude that the primary concern should be to ensure due process in mandatory arbitration. That would mean guarantees such as a mutually selected arbitrator, no broad prohibition of class actions, a fair hearing, reasonable costs, and the same remedies as provided by any applicable law.

The Public Trust in Surface Waterways and Submerged Lands of the Great Lakes States W. Mark C. Weidemaier

A growing body of empirical research explores the use of arbitration to resolve employment disputes, typically by comparing arbitration to litigation using relatively traditional outcome measures: who wins, how much, and how quickly. On the whole, this research suggests that employees fare reasonably well in arbitration. Yet there remain sizeable gaps in our knowledge. This Article explores these gaps with two goals in mind. The first and narrower goal is to explain why it remains exceedingly difficult to assess the relative fairness of arbitration and litigation. The outcome research does not account for a variety of "filtering" mechanisms that influence the relative merits of the cases adjudicated in each system. This Article explores these filters, focusing on one in particular: most employee grievances are resolved within the workplace through relatively informal procedures. Workplace structures thus filter out most employee grievances before they reach arbitration. This fact has significant implications for efforts to interpret the arbitration outcome research. It also highlights the significance of the workplace as a locus of dispute resolution activity. Indeed, a growing body of research focuses directly on workplace compliance and grievance procedures.


Recognizing the significance of workplace dispute resolution leads to this Article's broader goal. That goal is to expose, and hopefully bridge, an artificial conceptual divide that separates the arbitration research from research into workplace dispute resolution. Many researchers view internal compliance and grievance procedures as a means of harnessing the employer's own regulatory capacity. This conception drives a research agenda that explores the role of workplace structures in generating private norms and in implementing (or subverting) public norms like anti-discrimination. By contrast, the arbitration outcome research conceives of arbitration narrowly as a court surrogate, one that should ideally yield equivalent outcomes at lower cost. Although legitimate to a degree, this conception artificially separates arbitration from other employer-structured disputing procedures and yields an empirical agenda that leaves fundamental questions unanswered. This Article closes by discussing two of these questions: First, do arbitrators play a meaningful regulatory role, either by shaping other arbitratorsÕ practices or by shaping the terms of arbitration contracts? Second, under what circumstances do arbitrators effectively generate and enforce norms?


Volume 41, Issue 3, Spring 2008

Truth and Innocence Procedures to Free Innoncence Persons: Beyond the Adversarial System Tim Bakken

Through innocent pleas and innocence procedures, this Article urges a fundamental change to the adversarial system to minimize the risk that factually innocent persons will be convicted of crimes. The current system, based on determining whether the prosecution can prove guilt beyond a reasonable doubt, results in acquittals of guilty persons when evidence is sparse and convictions of innocent persons when evidence is abundant. It might be easier philosophically to accept that guilty persons will go free than to know that some innocent persons will be convicted and imprisoned, especially in the American justice system where erroneous jury verdicts based on factual determinations are virtually never reversed. Thus, where defendants claim to be factually innocent, the adversarial system should provide for a plea of innocent, as opposed to only a not guilty plea, as well as innocence procedures through which to search for the truth of the prosecution's allegations. Innocence procedures would require the defendant and the prosecution to engage in a truth-seeking function. The prosecution would have to investigate with a view toward finding exculpatory evidence, rather than expecting the defendant to produce it. The defendant would have to submit to interrogation, and his attorney would have to affirm that the defendant is innocent. Jury instructions at trial would ensure that the prosecution and defendant acted in good faith, and where a defendant pleaded innocent, submitted to interrogation, and then still faced trial the prosecution would be required to prove guilt to a standard higher than beyond a reasonable doubt. By introducing a truth-seeking function into the adversarial system prior to trial, innocent persons would have a more realistic opportunity to save themselves, when in the current system their fates are virtually irrevocably sealed when a jury returns a guilty verdict.

Subordination and the Fortuity of Our Circumstance Sergio J. Campos

The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates affirmative action due solely to the existence of subordination, regardless of its causes. Third, the affirmative action required by the antisubordination principle requires preferential treatment that burdens innocent persons. Rather than defend affirmative action on past discrimination or diversity grounds, the Article argues that these sacrifices are justified given the arbitrary nature, or fortuity, of the circumstances into which we are born. Unlike John Rawls and other philosophers who have recognized this fortuity, but have argued that it only implicates what persons are entitled to, the Article instead argues that this fortuity provides the basis for a solidarity with those born into subordinated positions. Because anyone could have occupied positions of subordination but for the accident of birth, we all have reason to make reasonable sacrifices to end subordination.

The Terrorism Exception to Asylum: Managing the Uncertainty in Status Determination Won Kidane

The Immigration and Nationality Act ("INA"), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however, the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing scheme provides little help in screening out the real terrorists. The Article demonstrates these flaws and proposes some substantive and procedural modifications.

Money As Property: The Effects of Doctrinal Misallocation of Campaign Finance Reform Maneesh Sharma

By applying First Amendment jurisprudence to campaign finance measures, this Note argues that the Supreme Court has misallocated campaign finance within its doctrinal scheme. This doctrinal misallocation has stymied the ability of legislatures to enact effective reforms to reduce the role of money in politics. This Note argues that money in the political process more closely resembles property than speech and should therefore be analyzed under a less stringent property review. This Note concludes by proposing a standard of review developed from the Court's property jurisprudence.

The Failing Company Defense After The Commentary: Let It Go Oliver Zhong

This Note proposes the abolishment of the failing company defense in merger control law. This call for reform is based on a comprehensive critique, which consists of a revisit of the doctrinal history, a survey of problems in current practice, and an inquiry into the normative merits of both the status quo and alternative plans. The reform advocated will purify the doctrine and improve the practice with minimum adjustments, in line with the ongoing movement to modernize merger review with the publication of the Commentary to the Merger Guidelines.


Volume 41, Issue 2, Winter 2008

Systemic Compliance Complaints: Making Idea's Enforcement Provisions a Reality Monica Costello

The current "war on terror" provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith's "American Way," where Keith sings that "you'll be sorry that you messed with the USofA, 'Cuz we'll put a boot in your ass, It's the American Way."

No aspect of the "war on terror" more clearly addresses this balance than coercive interrogation. In a recent decision, Hamdan v. Rumsfeld, the United States Supreme Court found the procedures governing the Guantanamo Bay Military Commissions to be inadequate. Though the Court called on the Administration to create appropriate procedures and processes, the recently enacted Military Commissions Act and the subsequently issued Department of Defense Manual for the Trial of Detainees suggest that the Administration has not fully internalized Hamdan's significance regarding the coercive interrogation of detainees.

In seeking a clear articulation of interrogation standards, this Article turns to the pages of American history for guidance. Drawing a comparison between the current detainees and African Americans in the Deep South, this historical analysis argues that the same constitutionally based protections against coercive interrogation of African Americans can and should be extended to the detainees, a currently unprotected class.

This historical analogy is accomplished by analyzing a set of cases termed the Bram-Brown progeny. This watershed line of cases shows the Supreme Court's willingness to enter the interrogation context in the Deep South, where the Court eventually mandated the extension of constitutional protections to an unprotected class of people.

This Article concludes by formulating recommendations based on constitutional, criminal, and international law that the author posits will both cure the deficiencies identified by the Court in Hamdan and provide a means for the United States to return to its moral stance in the international community.

Where Equity Meets Expertise: Re-Thinking Appellate Review in Complex Litigation Michael J. Hays

The field of complex litigation continues to grow as both an academic study and a popular phenomenon. One cannot escape news accounts of major class action litigation, and lawyers continue to find new ways to push the outer bounds of civil litigation practices to accommodate large-scale disputes involving multiple claims or parties. Many question whether traditional procedures can or should apply to these cases. Drawing on this well-recognized procedural tension, this Article explores the relationship between trial and appellate courts in complex litigation and argues for a revised standard of appellate review for trial court decisions affecting the party structure of a lawsuit. The Article examines historical equity practices and modern principles of administrative law to explain the function of a trial court in complex litigation and to justify the form of appellate scrutiny that is applicable to that role.

Addressing Segregation In The Brown Collar Workplace: Toward a Solution For the Inexorable 100% Letitia M. Saucedo

Despite public perception to the contrary, segregated workplaces exist in greater number today than ever before, largely because of the influx of newly arrived immigrant workers to low-wage industries throughout the country. Yet existing anti-discrimination frameworks no longer operate adequately to rid workplaces of the segregation that results from targeting immigrant workers. This Article suggests a new anti-discrimination framework to address workplace segregation. The Article reviews how litigants have attempted to rid the workplace of conditions resulting from segregated departments through existing anti-discrimination frameworks. It then suggests a simple, yet powerful, shift in the inferences that can be drawn from the inexorability of a segregated workplace. It asks the reader to imagine an inference created from the "inexorable 100," the mirror image of the inexorable zero inference, and a shorthand description for a segregated job category or department within a workplace. The Article proposes a segregation framework that views segregation as an expression of subordinated work conditions, and that offers courts the opportunity to craft broader remedies, both to eliminate segregation and improve the working conditions of segregated workers.

Long Live the Lie Bill! Lucia I. van Dam

What successful defamation plaintiffs typically desire and doctrinally deserve is to have their reputations restored. Presently, however, a plaintiff who has established that she was defamed by the defendant is entitled only to an award of damages, which does nothing to restore reputation. This Note proposes that in addition to a damages award, courts-if they are to take seriously their obligation to compensate the plaintiff-should order the defendant to retract the defamatory statement. Contrary to the prevailing view, this Note argues that the proposed retraction order does not jeopardize the First Amendment guarantee of free expression.

Frank Allen Tributes
The Articulate Frank Allen James J. White

Frank Allen had all of the wonderful talents that Ted St. Antoine and Rick Lempert ascribe to him. He was exceptionally smart and thoughtful (no one gets to give those fancy lectures who is not). He was a wise man (he led the faculty through the tough times at the end of the Vietnam War). And he was compassionate but tough as nails (he favored affirmative action, but was willing to close down the BAM affirmative action disruption with police if necessary-Frank's statement of his intention to call the police after the law school classes were disrupted forced the timorous Central administration to take action).

In Memoriam: Francis A. Allen Yale Kasimar

Francis A. Allen graced the law faculties of five universities in the course of a r emarkable, forty-six-year teaching career. In that time, he established himself as one of the half-dozen greatest twentieth-century American scholars of criminal law and criminal procedure.

[* This In Memoriam essay was previously published in the first issue of Volume 106 of the Michigan Law Review (October 2007).]

Frank Allen: An Appreciation Richard Lempert

Francis Allen was the Dean who hired me. First deans are, in their own way, as memorable as first kisses; they set expectations for all that follows. The expectations that Frank Allen set were high indeed. In this young professor's mind (I was 24 when I received my offer; 25 when I joined the faculty) he embodied what I still regard as the two most important academic virtues: scholarship and decency. These virtues combined to make him, at the time he accepted the Michigan deanship, perhaps the nation's most powerful voice for criminal justice reform and the country's leading scholar of criminal procedure, or so I was told in my first year by a visiting specialist in this area. Later, when he left the deanship, generations of students would directly benefit from Frank's virtues, as he not only stepped gracefully into a teaching role but also became, almost immediately, one of those professors whom students universally acclaim as "special."

Frank Allen-Dean And Colleague Theodore J. St. Antoine

Frank Allen was chosen as Dean at Michigan during my first year on the Law School faculty. I had never met him but my colleagues had provided splendid reports about his work and about him personally. I was also impressed by his response to our inquiry concerning his possible interest in the deanship. He said he had established a couple of conditions for being a dean anywhere. First, it would have to be at a school to which he felt a special attachment. Second, it would have to be at an institution where he felt he could make some particular contribution.


Volume 41, Issue 1, Fall 2007

Child Well-Being: A Beneficial Advocacy Framework For Improving The Child Welfare System? Sarah H. Ramsey

This Article explores the advantages and disadvantages of child well-being as a child welfare system advocacy framework. It examines the use of the concept of child well-being as a social indicator and the importance of poverty rates to the child welfare system. It also examines the use of child well-being as an outcome measure for the child welfare system, in particular in Child and Family Service Reviews ("CFSRs") and court evaluations. The possible impact of the child well-being concept is considered in the context of several programs, including income supports and problem-solving courts. The Article concludes that, overall, well-being provides a valuable framework for the future of child advocacy.

"I'll Try Anything Once": Using The Conceptual Framework of Children's Rights Norms in the United States Bernadine Dohrn

International human rights law provides norms, concepts, and standards of immediate and practical value to attorneys for court-involved children in the United States. The conceptual framework of the comprehensive rights of the child is broadly congruent with, or closely related to, the strongest aspects of U.S. constitutional law and practice. The expansive language of children's human rights offers an historic opportunity: new tools and a more comprehensive context in which to change how we think about young people in conflict with the law, children in state custody, and children in related legal settings. The challenge is to use these fresh substantive concepts as terms of reference in our work and our thinking, as a prelude and incentive to integrating the "instructive" nature of children's international law with the interpretation of our own laws and constitutional traditions. The adoption of the discourse itself can encourage and influence future implementation of enforceable domestic and international law that expands the rights and well-being of children.

The Eighteenth Birthday of the Convention of Rights of the Child: Achievements and Challenges Jaap E. Doek

Although the U.N. Convention on the Rights of the Child has produced positive results in many countries, the United States remains one of the few nations that has not signed on to this treaty. This Essay will begin by describing the content of the treaty. This Essay will discuss the achievements, challenges, and solutions resulting from the treaty in the areas of child poverty, violence against children, and child labour. Given the positive results produced in other countries, this Essay will conclude with an invitation to the United States to join the Convention on the Rights of the Child.

Neither Dyad Nor Triad: Children's Relationship Interests Within Kinship Caregiving Families Sacha M. Coupet

Utilizing a research design lens as a platform for exploring children's relationship rights, this Essay examines first, the limitations of a rights-based framework and second, insufficient participation by children in decision-making regarding their access to and interest in relationships with significant others. This Essay posits that neither the dyadic rights-based framework in domestic relations nor the, ostensibly, triadic one in child welfare serve the interests of children, since children's rights are invariably subordinated to those of adults and the state. In place of a rights-based approach, this Essay endorses an interests-based model more attuned to the holistic aim of child well-being. Acknowledging that even if an interests-based approach were to grow in favor, this Essay highlights the limitations of its implementation since the proverbial "best interests of the child" remains too attenuated as a critical decision-making factor due to currently limited mechanisms of children's participation. This Essay argues that these limitations are particularly harmful to the development of a meaningful discourse on children's relationship rights.

The Multiethnic Placement Act: Threat to Foster Child Safety and Well-Being? David J. Herring

Despite the efforts of public officials to reduce the time children spend in foster care, many children live in foster homes for a substantial portion of their childhoods. In fact, a child placed in a foster home may remain in that home for an extended period, with a significant possibility of remaining there permanently. In light of this situation, the decision to place a child in a particular foster home is extremely important.


The federal Multiethnic Placement Act ("MEPA") significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child's foster care or adoptive placement on the basis of race, color, or national origin. Federal officials have interpreted MEPA as barring public agencies from routinely and systematically considering race when placing children in particular foster homes. In other words, MEPA precludes these agencies from pursuing children's interests through a policy or practice of matching a child's race with that of his or her foster parent.


To date, commentators who have examined MEPA have focused their attention on identifying and weighing the benefits and harms of transracial adoption for minority children and communities. As a consequence, they have not addressed the impact of MEPA on foster care placement decisions in any detail.


In contrast, this Article examines foster care placement decisions. More specifically, this Article uses behavioral biology research on kinship cues and social psychology research on in-group favoritism to formulate a hypothesis that has implications for MEPA's prohibition on the routine consideration of race in making foster care placement decisions. Namely, children placed with non-kin, same-race foster parents are likely to be safer and healthier than children placed with non-kin, different-race foster parents. The Article calls for a test of this hypothesis, explains how such a test may proceed, and discusses possible implications for laws and policies that address race and foster care.


Interdisciplinary Clinical Teaching Of Child Welfare Practice To Law And Social Work Students: When World Views Collide Kathleen Coulborn Faller Frank E. Vandervort

Because child welfare cases in the world of professional practice require interdisciplinary collaboration, it would seem to follow that graduate students, who will become child welfare professionals, should be trained together, both in the classroom and in clinical settings. However, the implementation of interdisciplinary training is far from straightforward. In this Article, we focus on law and social work students. First, we describe the roles of lawyers and social worker in child welfare work. Next we argue that interdisciplinary classroom teaching is easier than clinical teaching, proposing a series of topics to be covered in an interdisciplinary course. Finally, we describe the challenges of clinical training of lawyers and social workers together, noting that they have different roles in child welfare cases, different ethical guidelines, different approaches and methods of intervention, and different social statuses, each of which affect how they approach casework in child welfare cases.


Advancing the Future Of Family Violence Law Pedagogy: The Founding of a Law School Clinic Melissa Breger Theresa Hughes

This Article advocates for law schools to integrate family violence law further into their curricula and proffers reasons why family violence training is critical in preparing students to practice law. The authors posit that although live-client specialty clinics are the most in-depth way to teach family violence law, the topic should also be offered through doctrinal courses, externships, or general subject matter clinics. The Article then describes the authors' own experiences in co-founding a child advocacy clinic in New York City, outlining the steps taken to transform a vision into the actual formation of a clinic. Finally, the authors conclude with thoughts about the future of family violence law in legal academia, including mandating family violence law education for all law students.


KidsVoice: A Multidisciplinary Approach to Child Advocacy Scott Hollander Jonathan Budd

There is growing recognition that effective child advocacy requires a broad range of knowledge that often goes well beyond the legal needs of the child. This Essay details the multidisciplinary approach to child advocacy that KidsVoice, a Pittsburgh legal services organization representing almost 5000 dependent children each year, has implemented to better develop uniquely tailored recommendations regarding which placement and services might create better possibilities of success for each child and family.


Why Children Still Need A Lawyer Marcia Robinson Lowry Sara Bartosz

Every day approximately 500,000 children across the United States wake up in foster care, most in foster family homes, though many others in group homes and institutions. These children entered the state foster care system as innocent victims of abuse or neglect occurring in their birth homes. As wards of the state, they depend completely on the government to provide for their essential safety and well-being and to reconnect them with a permanent family, hopefully their own.


Though state child welfare agencies possess fundamental legal obligations under the United States Constitution and federal and state statutes to provide adequate care to all children in foster care, they are all too often failing in this vital mission. High caseloads, insufficient caseworker training and compensation, a combination of unstable and ineffective agency management, and a lack of resources plague foster care systems from coast to coast. As a result, children who were removed from their homes for basic protection actually suffer continuing harm in state care.


The federal government has sought to improve the performance of state foster care systems through legislative reforms that have subjected these systems to the oversight of family court judges and federal auditors. Though well-intended, these federal reform efforts have not achieved the desired result. The same structural impediments that historically have prevented child welfare agencies from delivering quality services similarly have blunted the impact of federal reforms.


Child advocates have utilized class action litigation to ignite and sustain systemic reform. These class actions suits, typically involving claims for violation of substantive due process and statutory rights, have resulted in court enforceable consent decrees that have resulted in improved care, services, and permanency outcomes for children by obligating state agencies to undertake essential structural improvements. This Essay will present the disappointing history of the federal reform efforts and the promise that structural reform class actions hold for children in foster care.


Juvenile Justice: The Nathaniel Abraham Murder Case Eugene Arthur Moore

Once in a while, a case will come along that has such an enormous impact on the law that it is certain to draw attention. One such case was the Nathaniel Abraham murder case-a case involving the sentencing of a young eleven-year-old child in a system designed for older juvenile offenders, which demonstrated some of the novel and important issues facing the juvenile courts today. With the onset of such issues, the Juvenile Justice System has developed into a complex field of vital importance. Investing in the Juvenile Justice System allows us to invest in our future. Although frequently viewed as a social issue, rehabilitation of youthful offenders should become a goal for the legal profession as well as for members of the public.


Troubled Children And Children In Trouble: Redefining the Role of the Juvenile Court in the Lives of Children Ann Reyes Robbins

This Essay considers the emerging research in the area of dual-jurisdiction children, often referred to as "crossover kids"-those currently or previously involved in maltreatment proceedings who have also committed delinquent acts. Part I describes the development of the juvenile courts in the early twentieth century. Part II of this Essay questions the need to "track" children along one legal path or another and points to the pitfalls of providing services to some children through a criminal justice paradigm instead of treating all children through a social work paradigm. Finally, Part III advocates a redesign of the juvenile court-a return to its roots-to better enable a court to consider the needs of the whole child, in context with the needs of her/his family.


Reflections On The Future Of Child Advocacy Bobbe J. Bridge

This Essay emphasizes the foster child's rights to well-being and permanency, as well as safety. Noting an ongoing parent-centered approach, this Essay advocates a new paradigm, moving away from a focus on adults and toward a focus on the child. This Essay concludes by reviewing recent advances that promote a child-centered approach.



Measuring The Next 30 Years Beth Locker Andrew Barclay

The last thirty years have seen many changes in the field of child protection, as child welfare law and policy have been undergoing nearly constant change. Those changes, however, have rarely been supported by data or scientific research; rather, they seem to have been largely driven by individual perception of events and gut instincts resulting in what has become essentially a folklore-based system. By focusing on data and scientific research, we hope for better outcomes, but short of that, we at least hope to know whether, and why, outcomes change. The move towards data collection and analysis has begun, but many scholars and practitioners appear to overlook the question we keep failing to answer-"Has this change benefited children?" Knowledge creates context for better decision-making. This assertion is an essential part of why so many national organizations are turning toward the use of data collection and analysis. The overwhelming needs of the children and families in our child welfare system are overshadowing the question of whether our responses are effective. This can no longer continue. Measuring process is not enough; we must measure outcomes. It is the right thing to do.


Innovation Held Hostage: Has Federal Intervention Stifled Efforts to Reform The Child Welfare System? Vivek Sankaran

The past thirty years have been marked by an increased federalization of child welfare law, which, like other areas of family law, traditionally remained within the sole purview of state legislatures. Despite increased oversight by the federal government, outcomes for foster children remain unacceptably poor. The number of children in foster care has more than doubled over the past twenty-five years and reports of suspected maltreatment have skyrocketed. Children continue to stay too long in care and have too many placements. Case workers assigned to work with families and attorneys representing parents and children are overwhelmed and rarely provide meaningful assistance. State courts face pressures to move cases through a busy docket rather than spend the time needed to make informed decisions about individual children. Many child welfare systems are or have been subject to court monitoring after evidence that the systems violated the constitutional and statutory rights of families.


This Article explores the unintended consequences of federal involvement in child welfare policy and argues that federal involvement in dictating the substance of child welfare policy must be minimized to spark the vigorous debate and innovation needed to reform child welfare systems. The Article first explores the significant growth in federal laws affecting the foster care system over the past thirty years. Then, it discusses the unintended consequences of this growth, primarily its impact on stifling much needed innovative approaches and rigorous debate in the area. Finally, the Article proposes that the federal government's role in child protection issues should be limited to four areas: 1) supporting, not supplanting, the states' responsibility to design systems to meet the needs of their families; 2) ensuring that states protect the constitutional rights of parents and children; 3) resolving interstate issues affecting children that cannot be adequately addressed by individual states; and 4) providing research and technical assistance to states as they design their policies.


Looking Ahead: A Personal Vision of the Future of Child Welfare Law Donald N. Duquette

The participants in the Thirtieth Anniversary Celebration of the Child Advocacy Law Clinic were all challenged to envision the future of child welfare and to address these questions: What should the law and legal institutions governing children's rights and child and family welfare look like in thirty more years? What steps are necessary to achieve those goals? After setting out the historical and optimistic circumstance in which the Child Advocacy Law Clinic was founded, this Article responds to the organizing questions by presenting the author's vision of the future of child welfare law and practice. When families fail children, what interventions and what process is appropriate? A premise is that our society expects too much of the child welfare system. If America adopted policies to support children and families far fewer children would enter the child welfare system and the courts, thus freeing up capacity to respond to children who really need the assistance. This personal vision of the future of child welfare discusses nine interconnected dimensions of child welfare law and policy: 1) America will address child poverty and strengthen its policies supporting children's families and the institutions that help children grow and develop into healthy and productive citizens; 2) America will be better at preventing child abuse and neglect; 3) Child protective services, the entry point into the child welfare system, will rely more on a rehabilitative approach and less on the punitive, fault-based accusatory response of today; 4) Formal legal process, apart from adjudication, will rely more on problem-solving approaches that include the entire family; 5) There will be less reliance on the courts for routine management of cases, with rights-based application to the courts only where coercive, involuntary action is required to protect the child or to protect parents and children from an overzealous state intervention; 6) Dispositional orders will be based on a comprehensive assessment that includes the entire family, generally provide for more contact between parent and child, and rely more on a cadre of professional foster parents; 7) Permanency and stability for the child will remain a centerpiece of American law and practice, but, after the finding of parental unfitness at adjudication, more persons will participate in the permanency decisions and the range of acceptable permanency options will expand; 8) Legal services for children and families will be better organized and also more broadly conceived than today with private and preventive law playing a large role; 9) The education of lawyers and other professionals in child welfare will be more sophisticated and increasingly interdisciplinary.

The University of Michigan Journal of Law Reform