Legal Commentary

I apologize for the relative dearth of blogging on my part the last few weeks. Between Vancouver and Prawfsfest! and SEALS, there has been surprisingly little time to start and/or finish a few articles and a book, and throw in some blogging. Though I have some thoughts and reactions I want to share on a host of topics in the near future, I'll use this post for familiar purposes :-)

Happily, Ethan, Jennifer Collins and I have just uploaded to SSRN a new draft of our piece, Punishing Family Status. You can download it here. This draft is a good bit more streamlined than the earlier draft and, unlike the earlier draft, it also addresses filial responsiblity laws, ie, a "family ties burden" in various states that require adult children to subsidize their indigent parents. We're also more explicit about the roles played in our account by voluntarism, vulnerability, and liberal minimalist approaches to criminal law. We were gratified to see that our paper was one of the top 10 most downloaded criminal law articles on SSRN the last few weeks -- but with only double digit downloads so far we have to assume everyone is enjoying the summer, or migrating to bepress to find their drafts!

The piece is currently scheduled to come out in the December 20098 (oops!) issue of the Boston University Law Review, where it will be the subject of a mini-symposium. Professors Michael O'Hear (Marquette; editor of Federal Sentencing Reporter) and Rick Hills (NYU) have graciously contributed shrewd and learned responses, and we have just finished a first draft of our reply. We will circulate that on SSRN pretty soon too. (Btw, big props/kudos to SSRN for making the uploading of new drafts a lot easier and quicker!!)

The current abstract of the piece appears after the jump.

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of "family ties burdens" or laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental liability statutes based on failure to supervise, incest, bigamy, adultery, and failure to pay child or parental support.



Part II then develops a framework for the normative assessment of these family ties burdens. We first ask how these laws can properly be understood to be "burdens." We then look at these sites synthetically and contextually to uncover a pattern underlying most of these family ties burdens: namely, they tend to serve the promotion and of voluntary care-giving relationships. We endeavor to explain why this rationale is instructive and normatively attractive for the design of family ties burdens within a criminal justice system committed to what we call "liberal minimalism." As Part II concludes, we articulate the contours and basis of a critical scrutiny that should attach to family ties burdens in the criminal justice system.



Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status but are still capable of promoting and vindicating voluntary care-giving relationships.