Legal Commentary

I'm happy to report that there's now a slightly revised draft of Punishing Family Status up on SSRN. You can download it here. This is an article I wrote with Jennifer Collins and Ethan Leib. As mentioned the other day here, it's forthcoming in the BU Law Review later this year, and it's part of a book project with Oxford University Press, forthcoming 2009, entitled Privilege or Punish: Criminal Justice and the Challenge of Family Ties. We are still busily revising the manuscript for both Punishing Family Status and the book project, which includes materials published earlier here in the U. Illinois Law Review. So if you have thoughts you'd like to share with us, we'd be grateful for your feedback. To whet your appetite, the abstract for PFS is below.

This Article spotlights 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 first revealing a variety of laws permeating the criminal justice system that together form a string of "family ties burdens" or penalties that impose punishment upon individuals on account of their familial status. The six burdens we train our attention on are omissions and vicarious liability, incest, bigamy, adultery, and failure to pay child support.



Part II then develops a framework for the normative assessment of these family ties burdens, asking in which ways can these laws be properly understood as "burdens." By looking at these sites synthetically, we also uncover a latent rationale for these family ties burdens: namely, the promotion of voluntary care-giving relationships. We explain the nature of this rationale and its implications for proper policy design¿particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. 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 and instead capable of promoting voluntary care-giving