Showing papers in "William and Mary Bill of Rights Journal in 2003"

Law Without Law, or Is "Chinese Law" an Oxymoron?

Abstract: the Study of Law and Culture and Senior Fellow at the Center for Chinese Legal Studies, Columbia Law School. J.D. Yale; A.B., A.M. (East Asian Studies), Stanford. Many thanks to Lan Cao for her role in organizing this symposium, and to David Eng, Ben Liebman, and Julia Ya Qin for their comments on an earlier draft of this essay. My research was supported generously by Dean Claudio Grossman at American University. 1 CLIFFORD GEERTZ, Local Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 167, 168 (1983). 2 This symposium contribution grows out of a longer essay delineating a genealogy of “legal Orientalism,” or the ways in which Euro-American writings on Chinese law have served to confirm certain commonsense views of legality and the nature of the legal subject. See generally Teemu Ruskola, Legal Orientalism, 101 MICH. L. REV. 179 (2002). LAW WITHOUT LAW, OR IS “CHINESE LAW” AN OXYMORON?

Environmental Law with Chinese Characteristics

Abstract: Pennsylvania; Eugene P. B eard Faculty Fellow, Center fo r Ethics and the Professions, Harvard University (2002–2003). For com ments, I thank participants in the symposium on the Rule of Law in China at William and Mary School of Law and students at Wharton who heard various early versions of some of the ideas presented here. In particular, I thank Andrew Finkelstein, Stefan Krasowski, David Ho, and Kin Yee W ong who w ere students in my environmental manage ment course. I also thank participants in the World Resources Institute’s Business, Environment, Learning and Leadership conference held at the Bren School of Environmental Science and Management, University of California, Santa Barbara, as well as attend ers of a W harton W est conferen ce on the Fu ture of Chine se Mana gement. 1 William P. Alford & Benjam in L. Liebma n, Clean Air, Clean Processes? The Stru ggle Over Air Pollution Law in the People’s Republic of China, 52 HASTINGS L.J. 703, 747 (2001). 2 Id. at 748. 3 Michael A. Lev, Clearing Skies Over China; Demonstrating Political Will, Beijing Tackles the Cleanup of Some of Earth’s Most Polluted Cities, CHI. TRIB ., Feb. 2, 2002, at 1. 4 Id. 5 Alan Abraham son, Rings, Ka-Ching in Beijing; Prep aring for 2 008 G ames, a $30-B illion Facelift S hows China’s Cultural Evolution . . . or Is That Revolution?, L.A. T IMES, July 13, 2002, at D1. Planned environmental improvements run from a modernized sewage treatment system to the planting o f thousands o f acres of trees. Id. At least, the government wants to avoid embarrassment on environmental as well as other grounds. See, e.g., Be Prepared, ECONOMIST , June 13, 2002, at 15 (predicting that China will be “nervous

The U.S.-China Rule of Law Initiative

Abstract: Yale Law School. This is a slightly expanded version of remarks delivered at a Conference on the “Rule of Law in China” at the College of William and Mary School of Law on February 22, 2002. From 1997–98, the author was Special Representative for the Presidential Rule of Law Initiative at the United States Department of State. The views expressed here are those of the author and do not represent official positions of the U.S. government. I am grateful to the participants in Yale Law School’s Workshop on Chinese Legal Reform for their comments on an earlier draft.

The rights and duties of childrearing

Abstract: What rights and duties do adults have with respect to raising children? Who, for example, has the right to decide how and where a particular child will live, be educated, receive health care, and spend recreational time? I argue that neither biological (gene-provider) nor procreative (zygote-producer) parents have in principle any special rights to raise their offspring. Instead, those rights can be legitimately claimed by anyone for whom possession is suitably in the child's best interest. Those who so obtain childrearing rights have a duty to live up to the "basic expectations" for ensuring that their possession of those rights is in the child's best interest, but have no further duties. In particular, they have no duty to do the best they can for the child.

A Taxonomy of Children's Existing Rights in State Decision Making About Their Relationships

Abstract: This article constitutes a treatise on the laws governing children’s family relationships, with systematic examination of the extent to which those laws aim to serve the interests of children rather than adults.

Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty

Abstract: This article addresses the role of the genetic tie in the parent-child relationship through three lenses. First, we argue that the legal system recognizes children's rights not by treating children as autonomous actors, but by identifying the individuals and institutions most likely to promote children's interests and encouraging their success. Second, we examine the existing empirical and socio-biological literature that considers the importance of biological relationships, and concludes that it demonstrates not a single set of answers, but a set of tradeoffs. The well-being of young children, particularly in societies less prosperous than our own, may depend on the mother's ability to enlist a partner's material support. The long term involvement of the partner in the child's life may then depend not just on the strength of the bond with the mother, but on the certainty of paternity. Paternity inquiries, however, may contribute to the instability of the mother's existing relationships, undermining their short term benefits for the child's well-being. Third, we consider recognition of these tradeoffs in the law of paternity, and conclude that existing decisions present an incoherent and fractured body of family law. Finally, we propose mandatory paternity testing as an alternative. The proposal would encourage all of those seeking recognition of paternity at a child's birth to undergo testing; those who waive the tests would be permanently estopped from denying fatherhood. We conclude that in an era in which biological connections are increasingly easy to determine, parental relationships should be based on truth and certainty rather than convenience. And while we recognize that biology should not always determine legal parenthood, we also believe that partners should be fully aware of when they are - and are not - assuming the legal responsibilities of the role.

Parental Autonomy and Children's Welfare

Abstract: This essay examines trends in child custody law in the past decade or so, and argues that many of the substantive and procedural legal developments can be understood as an unplanned but coherent effort to influence divorced and separated parents to function more like parents in intact families, by giving them some semblance of the authority and respect that they enjoyed before dissolution. These reforms encourage parents to cooperate and to maintain their commitment to fulfilling their responsibilities to their children through a regulatory scheme that treats them as fiduciaries entrusted with their children's welfare. A fiduciary model of regulation embodies an insight that was lost under traditional custody law - that legal deference is important in promoting role satisfaction and in encouraging parents to dedicate themselves to their children's interest. This theme is prominent both in reforms of substantive custody law that recognize the parental status of both parents and in procedural innovations that encourage parents to take greater responsibility for deciding custody arrangements. At the same time, the growing emphasis on domestic violence as a factor in custody law is a critical component of a fiduciary model of regulation, because it reinforces the boundary of acceptable parental behavior. One recent legal development - the recognition of custody and visitation claims by grandparents and other non-parents - runs counter to the implicit adoption of a fiduciary model of family regulation. This reform, intended to serve the benign purpose of preserving relationships between children and adults who are important in their lives, instead may undermine children's welfare by imposing burdens on parents that diminish role satisfaction. Thus, counter-intuitively, reforms that seem to reinforce parental "rights" serve to protect the parent-child relationship, while those that are designed to promote the child's interest threaten to frustrate the child's most important bond - the relationship with her care-taking parent.

Children's Associational Rights? Why Less Is More

Abstract: This article argues against recognizing children's associational rights, despite compelling calls for such rights in the face of controversial court decisions. The argument is grounded on pragmatic, rather than conceptual, opposition to these rights. While children's interest in maintaining important relationships is at least as great as the parallel interest of adults, children cannot assert those interests on their own. As a result, children are necessarily dependent on some adult surrogate, or group of surrogates, to exercise these rights. The article considers each of these surrogates in turn (interested third parties, lawyers, guardians ad litem, evaluating psychologists, and judges), and concludes that none is in a position to identify a child's associational interests better than the child's parents (the default surrogates in a no-rights world). The article also suggests that invoking children's rights rhetoric, when children have so little control over the associational choices made in their name, risks exploiting children to serve the ends of adults. This piece was written for the symposium on children's associational rights convened by William and Mary's Institute of Bill of Rights Law.