Volume 31, Issue 1
Fall 1997

Child Advocacy Symposium

Articles

Developing a Child Advocacy Law Clinic: A Law School Clinical Legal Education Opportunity
Donald N. Duquette
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An Interdisciplinary Seminar in Child Abuse and Neglect with a Focus on Child Protection Practice
Suellyn Scarnecchia

Family Group Conferences as a Form of Court Approved Alternative Dispute Resolution in Child Abuse and Neglect Cases
Jolene M. Lowry

We Know Better Than We Do: A Policy Framework for Child Welfare Reform
Donald N. Duquette
Sandra K. Danziger
Joan M. Abbey
Kristin S. Seefeldt

Speaking to Tribal Judges on the Matter of Improving Children’s Court Practice in Child Abuse and Neglect Cases in Our Country: A Proposal for a Uniform Children’s Code
Julian D. Pinkham
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Notes

Crafting and Advocate for a Child: In Support of Legislation Redefining the Role of the Guardian ad Litem in Michigan Child Abuse and Neglect Cases
Albert E. Hartmann
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“Supervisor” Hostile Environment Sexual Harassment Claims, Liability Insurance, and the Trend Towards Negligence
Amanda D. Smith
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Volume 31, Issue 2
Winter 1998

Articles

“Crimtorts” as Corporate Just Desserts
Thomas Koenig
Michael Rustad

Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children
Susan H. Bitensky

Adverse Possession of Municipal Land: It’s Time to Protect This Valuable Asset
Paula R. Latovick
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Note

Reforming Accretion Analysis Under the NLRA: Supplementing a Borrowed Analysis with Meaningful Policy Considerations
Matthew S. Miner

Articles

Hooting: Public and Popular Discourse About Sex Discrimination
Kenneth L. Schneyer
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Against Common Sense: Why Title VII Should Protect Speakers of Black English
Jill Gaulding
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Proposition 215: De Facto Legalization of Pot and the Shortcomings of Direct Democracy
Michael Vitiello
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Note

Local Government Anti-Discrimination Laws: Do They Make A Difference?
Chad A. Readler
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Volume 31, Issue 4
Summer 1998

Articles

The Electronic Media and the Flight from First Amendment Doctrine:
Justice Breyer’s New Balancing Approach          
Jerome A. Barron

Did the Civil Justice Reform Act of 1990 Actually Expire?
Carl Tobias

A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law
Robert B. Porter
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Note

Extraditing Mexican Nationals in the Fight Against International Narcotics Crimes
Joshua S. Spector
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Abstracts

Developing a Child Advocacy Law Clinic: A Law School Clinical Legal Education Opportunity
Donald N. Duquette

        Clinical legal education has become an accepted and integral complement to traditional law school curricula. Professor Duquette argues that clinical education is uniquely able to integrate the teaching of practical skills and legal doctrine, elevating students’ understanding of both. Duquette maintains that a child advocacy law clinic can teach a broad range of practical skills, benefit the hosting law school by providing an opportunity for interdisciplinary education as well as a public relations benefit, while simultaneously serving an important need in most communities for quality representation of all parties in child abuse and neglect cases. Most importantly, participation in a child advocacy law clinic has a profound effect on students who must face significant ethical, emotional, and legal issues that require both quick learning and deep reflection. In hopes of aiding other law schools interested in developing a child advocacy clinic, Duquette describes the University of Michigan Child Advocacy Law Clinic, detailing the selection of cases for the representation of children, parents, and social service agencies, the supervision of students, the classroom component of the curriculum, and the staffing and budgeting choices made.

Speaking to Tribal Judges on the Matter of Improving Children’s Court Practice in Child Abuse and Neglect Cases in Our Country: A Proposal for a Uniform Children’s Code
Julian D. Pinkham

        Since the 1970s, the responsibilities of the tribal children’s courts have increased dramatically. In child welfare cases, tribal courts no longer simply determine whether a child has been abused or neglected. They now also oversee the placement of the child in a shelter, foster care, or a permanent home, as well as determine the parent’s treatment or visitation rights. The complexity of the cases causes unacceptable delays in placing Indian children in need of care and hinders the placement of Indian children within the tribal community.
        Judge Pinkham introduces a proposed solution to the problems of current tribal child welfare cases: a uniform children’s code. The proposed code provides a strong framework for tribal nations to solve the problems of delay and non-tribal placement of Indian children. Five goals guided Judge Pinkham as he drafted the uniform children’s code: avoiding unnecessary separation of Indian children from their families, reunifying separated families, laying out a procedure for cases in which reunification is not feasible, making timely decisions, and enhancing the oversight role of the tribal courts.

Crafting and Advocate for a Child: In Support of Legislation Redefining the Role of the Guardian ad Litem in Michigan Child Abuse and Neglect Cases
Albert E. Hartmann

        Michigan’s current statutory system leaves the role of the child’s attorney unclear. In this Note, Hartmann advocates the adoption of a legislative proposal that will redefine the role of the child’s attorney. The proposal specifies that the child’s primary legal representative should be a guardian ad litem who will represent the best interests of the child. Hartmann begins by describing the current system and then analyzes how the proposal will modify the role of the child’s attorney. Hartmann argues that the proposed changes would be highly beneficial and identifies specific points of improvement. Hartmann concludes by suggesting several reforms to improve the child welfare system in Michigan.

“Supervisor” Hostile Environment Sexual Harassment Claims, Liability Insurance, and the Trend Towards Negligence
Amanda D. Smith

        A lack of settled standards for determining liability in supervisor hostile environment sexual harassment lawsuits combined with similar uncertainty in the context of employer liability insurance coverage has resulted in increased litigation in this area. This Note argues that the current predominant standard in the employer liability context, which is based on negligence principles, should be rejected in favor of an apparent authority standard, which more appropriately strikes a balance between encouraging employers to identify harassing behaviors and exonerating them from liability when they do so and take appropriate remedial action. It further argues that in order to develop effective mechanisms for preventing supervisor hostile environment sexual harassment and to adequately compensate victims, courts should consider the cost-shifting effects of employer liability insurance coverage and also the conduct that substantive standards will encourage or discourage.

Adverse Possession of Municipal Land: It’s Time to Protect This Valuable Asset
Paula R. Latovick

        The hornbook rule is that adverse possession statutes do not run against land owned by state governments. Yet, in practice, the land of many states is subject to loss by adverse possession. Few states have statutes that simply and explicitly protect all state land from adverse possession. This Article describes the variety of ways in which states protect or fail to protect their land from adverse possession. It concludes with the recommendation that, given increasing development pressures and limited state enforcement budgets, state legislatures should protect completely all state land from adverse possession.

Hooting: Public and Popular Discourse About Sex Discrimination
Kenneth L. Schneyer

        In this Article, Professor Schneyer focuses on the debate surrounding the Hooters restaurant chain. He argues that the debate surrounding Hooters inevitably addresses the nature and importance of gender and sexuality in culture and business. Professor Schneyer uses the lens of constitutive rhetoric to analyze several texts created by both sides during this debate. He concludes that varying participants in the debate use rhetoric for different purposes. Some, like commentator Laura Archer Pulfer, use rhetoric that encourages growth and critical analysis, while others, like Hooters itself, use rhetoric to encourage unquestioning belief. Overall, Professor Schneyer observes that Hooters’s supporters use their rhetoric to proffer the view that the intellectual and political elites are at war with “common sense” and the ordinary American. In a debate this complex, however, rhetoric of this sort is not helpful in resolving the underlying issue of the propriety of sexual entertainment in a society that condemns sex discrimination. To address this issue, Professor Schneyer argues that we need a nuanced debate that encourages critical and independent analysis of the complexities involved, not a debate hemmed in by simplistic metaphors and thought-stifling rhetoric.

Against Common Sense: Why Title VII Should Protect Speakers of Black English
Jill Gaulding

        The speech of many black Americans is marked by phrases such as “we be writin” or “we don’t have no problems." Because most listeners consider such “Black English” speech patterns incorrect, these speakers face significant disadvantages in the job market. But common sense suggests that there is nothing discriminatory about employers’ negative reactions to Black English because it makes sense to allow employers to insist that employees use correct grammar.
          This article argues against this common sense understanding of Black English as bad grammar. The author first analyzes the extent of the job market disadvantages faced by Black English speakers and discusses the failure of common sense solutions designed to eliminate Black English speech patterns. The author then provides linguistic evidence to show that Black English is actually a distinct but equally valid dialect of English, which for historical reasons is largely limited to the African American community. She argues that, given this scientifically accurate understanding of Black English, employers who reject Black English speakers because of their speech patterns are in fact violating Title VII’s prohibition against race discrimination. The author explains why discrimination against Black English speakers should fall under the existing Title VII disparate impact framework and suggests a possible extension of Title VII doctrine to protect those Black English speakers whose employment opportunities are limited by weak written language skills. Throughout the Article, the author challenges readers to consider the sources and effects of their own “common sense” beliefs about language and urges them to accept responsibility for solving the problem of language discrimination.

Proposition 215: De Facto Legalization of Pot and the Shortcomings of Direct Democracy
Michael Vitiello

        In 1996, California voters passed Proposition 215, officially titled The Compassionate Use Act of 1996, and popularly known as the “medical marijuana” initiative. This initiative allows qualifying people and their caregivers immunity from criminal prosecution when the state attempts to charge them with possession or cultivation of marijuana. Professor Vitiello uses the medical marijuana initiative as a case study illustrating flaws in California’s ballot initiative process. He examines the history of the initiative process in California, misleading aspects of the campaign for Proposition 215, and ambiguities in the proposition’s language. Concluding that the initiative process as it now stands fosters poor legislation, Professor Vitiello assesses several reform measures proposed by the non-partisan Citizens’ Commission on Ballot Initiatives and adds his own proposed reforms to address the problems of misleading advertisements and misleading ballot pamphlets.

Local Government Anti-Discrimination Laws: Do They Make A Difference?
Chad A. Readler

        During the past decade, local governments have expanded their role protecting individuals from discrimination in private employment. Although federal and state laws already protect individuals from employment discrimination based on race, sex, color, religion, national origin, age, and disability, local anti-discrimination ordinances protect an even wider range of characteristics, such as sexual orientation, marital status, military status, and income level. The author details the results of a survey indicating that the agencies and dispute resolution processes mandated by local anti-discrimination ordinances are seldom used to protect this wider range of characteristics. He argues that effective, uniform anti-discrimination protection should come from the federal government.

A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law
Robert B. Porter

       In this Article, cast in the form of a letter to President William Jefferson Clinton, Professor Porter argues for the decolonization of federal Indian control law. After detailing the religious and colonialist roots of early Supreme Court decisions dealing with the Indian nations and giving an overview of the evolution of federal Indian policy, Professor Porter argues for the decolonization of federal Indian control law on several grounds: 1. the world community has rejected colonialism policies; 2. federal Indian control law denies basic human rights of self-determination; 3. colonization has partially succeeded in destroying the Indian nations; and 4. decolonization is an efficient use of federal resources. Professor Porter then describes recent reform efforts in this field of law and explains why they have not been as successful as their proponents might have hoped. He concludes by outlining a proposal to decolonize federal Indian control law through several means: 1. defining all aspects of the federal-tribal relationship by agreement; 2. implementing Bureau of Indian Affairs (BIA) reform; 3. repealing colonial federal Indian control law; and 4. abandoning the colonial foundation of federal Indian control doctrine.

Extraditing Mexican Nationals in the Fight Against International Narcotics Crimes
Joshua S. Spector

        In recent years, Mexican narcotics trafficking has become a major threat to the security of the Americas. Mexican narco-traffickers have used their wealth and violence to corrupt political and judicial systems and avoid effective prosecution or penalty in Mexican courts. Historically, Mexico has refused to extradite its nationals in reliance on Mexican law prohibiting the extradition of nationals in all but “exceptional” cases. This Note argues that Mexico should take a step toward controlling the cross-border narcotics trade and recognize international drug trafficking as an “exceptional” crime. Upon recognizing narcotics crimes as “exceptional,” Mexico should then begin extraditing Mexican narco-traffickers to the United States.