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Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN.

The question of the relationship between criminal law and family law has been amply explored in recent years, the seemingly neat separation between the fields coming under repeated challenge.1 Scholars have tackled the question from a variety of different perspectives: showing us how criminal law can function as family law for a specific section of the population, obliterating in the process basic family law assumptions about privacy and autonomy;2 or demonstrating the ways in which family law and criminal law have always operated in tandem to enforce specific sexual mores or ideals of intimacy.3 In Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, Elisabeth Katz contributes to this body of scholarship in a way that has the potential to unmoor contemporary assumptions about the civil nature of family court jurisdiction.

In this carefully researched and thoughtfully written piece of legal history, Katz concentrates on the history of family courts and their jurisdiction especially in the first half of the twentieth century. Adding a plethora of original sources to the historical literature on domestic relations courts,4 Katz highlights aspects of this history that had perhaps gone underappreciated inside family law.5 At their inception, some of the most influential domestic relations courts in the country focused heavily on the criminal prosecution of nonsupport cases and no one at the turn of the twentieth century would have thought of domestic relations courts as anything other than a branch of the criminal courts. More importantly, Katz argues that criminal jurisdiction over non-support cases continued to be at the core of family courts’ expansive jurisdiction, even as states strategically recharacterized the nature of these courts as civil in order to give judges more flexibility without the necessity of criminal law protections.

Katz tells this story in three steps. The first step is the gradual criminalization of family non-support in the late nineteenth century. States adopted criminal penalties for family non-support, usually at the misdemeanor level, at the behest of overburdened charities using a discourse of paternal moral failures reminiscent of the “deadbeat dads” of more recent welfare reforms. Some criminalized non-support as a felony, but in most states misdemeanor non-support was judged sufficient to qualify for extradition, a tool thought of as necessary in an era of increasingly mobile family deserters.

  1. See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. Gender Race & Just. 617 (2012); Cynthia Godsoe, Redefining Parental Rights: The Case of Corporal Punishment, 32 Const. Comment. 281 (2017); Jeanie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006); Andrea L. Dennis, Criminal Law as Family Law, 33 Ga. St. U.L. Rev. 285 (2016).
  2. See, e.g., Suk, supra note 1; Dennis, supra note 1.
  3. See, e.g., Murray, supra note 1.
  4. See, e.g., Anna R. Igra, Wives Without Husbands: Marriage, Desertion, &Amp; Welfare In New York, 1900-1935 (2007); Michael Willrich, City Of Courts: Socializing Justice In Progressive Era Chicago (2003); Amy J. Cohen, The Family, the Market, and ADR, 2011 J. Disp. Resol. 91, 100-103 (2011).
  5. With exceptions as Katz notes. See, e.g., Amy J. Cohen, supra note 4; Janet Halley, What Is Family Law?: A Genealogy Part II, 23 Yale J.L. & Human. 190 (2011).
Cite as: Michael Froomkin, Footnote break test, JOTWELL (April 1, 2019) (reviewing Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN), https://zetasec.jotwell.com/footnote-break-test/.

Wp to twitter test post

Beth Tucker Long

Beth Tucker Long

This post update should show a smaller thumnbail author image. An alternate post update with minor tweak to the new filter. This is a new post for tweeting that uses a different profile image. Using a new filter to upload the author image (if it exists).

WP to Twitter Test post

Beth Tucker Long

Beth Tucker Long

As more and more states legalize physician aid in dying, it appears that the acceptability of aid in dying turns on three critical requirements—that the patients be competent to make medical decisions, that they be terminally ill, and that they self-administer the lethal dose of medication. From Oregon to Hawaii, every state that has legalized aid in dying has included these three criteria for eligibility. But a report from Canada on that country’s experience with aid in dying suggests that only two of the three requirements may be needed.

The three basic requirements help ensure that patients really are suffering from a serious illness that is incurable and irreversible. They also help ensure that the desire for aid in dying reflects a genuine expression of self-determination1 rather than the irrational choice of someone suffering from mental illness. Controversial cases of aid in dying have involved patients who were no longer able to express their wishes or who appeared to need psychiatric care.

Like Oregon and other states, Canada restricts aid in dying to adults who possess decision-making capacity and who are terminally ill, though Canada has a different definition of terminal illness (the patient’s death must be “reasonably foreseeable” rather than expected2 within six months). But Canada allows physicians and nurse practitioners to administer the lethal dose rather than requiring self-administration. And in the government’s most recent report on the country’s experience with aid in dying, health practitioners administered the medication in virtually all cases. Self-administration occurred in only 5 out of the 1,382 cases that were included in the report. (The Netherlands reports similar data—in 2015, physician-administration outnumbered self-administration by 829 to 22.)

  1. * This is the first footnote
  2. * This is the second footnote

Despite the fact that bisexuals are, by most counts, the largest sexual minority group in the United States, they remain woefully under-researched and under-theorized. This invisibility in the realm of research and scholarship may be tied to the fact that bisexual programs and organizations receive only a minuscule amount of funding compared to either gay or lesbian organizations. As one study noted, over a forty-year period, bisexual programs and organizations received less than 0.3% of the funding awarded to their gay or lesbian counterparts. See Anthony Bowen, Forty Years of LGBTQ Philanthropy: 1970–2010, 33 (2012). Furthermore, bisexuals face alarming physical and mental health disparities—including higher levels of mood and anxiety disorders and of suicidal ideation—compared to individuals of other sexual orientations, which may well be a consequence of the fact that bisexuality is stigmatized by both heterosexual and homosexual communities.

This background of invisibility and stigmatization helps illustrate the importance of Brian Dodge et al.’s Attitudes Toward Bisexual Men and Women Among a Nationally Representative Probability Sample of Adults in the United States, published in the journal PLoS ONE. The article—and the study on which it is based—fills an important gap in the existing research on bisexuality as to prevailing societal attitudes toward bisexuals and the persistence of common stereotypes of this group, despite the considerable advances in societal attitudes towards gays and lesbians. 

Prior to the publication of this article, the only published research to address such attitudes that was based on a nationally representative probability sample was a 2002 article by Gregory Herek in which he found that heterosexuals rated bisexual men and women lower than any of the other fourteen named political, racial, ethnic, and religious groups identified in the study—except for injecting drug users. See Gregory M. Herek, Heterosexuals’ Attitudes Toward Bisexual Men and Women in the United States, 39 J. Sex Res. 264, 268 (2002). While compelling, Herek’s findings have become outdated, particularly given the known advances in societal attitudes toward gay men and lesbians over the past decade and a half. Moreover, unlike the work of Brian Dodge and his colleagues, Gregory Herek was able to assess only heterosexuals’ attitudes toward bisexuals because the number of gay and lesbian respondents in his study was too low. Id. at 267. Because bisexuals are known to face prejudice from both the straight and LGBT communities and because this intra- and inter-group prejudice is thought to contribute to bisexuals’ poorer health outcomes, the information that Dodge and his colleagues obtained about gay and lesbian attitudes is crucial.

Dodge and his colleagues, who specialize in public health, medicine, and social work, asked their respondents to rate the extent to which they either agreed or disagreed with five stereotypes of bisexuals, relating to perceptions of confusion, perceptions of HIV/STI “riskiness,” perceptions of non-monogamy, perceptions of promiscuity, and perceptions of bisexuality as temporary. Because attitudes toward bisexual males are known to be more negative than those toward bi women, the researchers asked about attitudes toward each gender group separately, without separating out transgender men and women from either group.

Across all of the stereotypical statements regarding bisexual men and women, the authors found that the largest proportion of respondents—over one-third—neither agreed nor disagreed with each stereotype. Although it may appear on the surface that this result reflects neutrality toward bisexuals, in fact the result is quite concerning in that it appears to evidence a widespread unwillingness to disavow such stereotypes, whereas, with better-understood groups, one would expect respondents to readily recognize the perniciousness of stereotypes. Instead of recognizing the stereotypes as such, the largest proportion of respondents could be viewed as expressing indifference or perhaps lack of knowledge or understanding of bisexuals. Another cause for concern is that the authors found that attitudes toward bisexual men were in fact more negative across the board than those toward bisexual women. Although, for most of the stereotypical statements, these differences were slight, the negative attitudes were significantly stronger toward bisexual men on the question of the riskiness of contracting HIV or STIs from having sex with bisexuals. While, as the authors point out, there are several factors relating to the behavior of bisexual men that suggest that they are in fact less likely than members of other groups to transmit HIV, the study demonstrates that this stereotype of bisexual men as a bridge for HIV transmission is unfortunately alive and well. Finally, the study indicates that heterosexuals harbor more prejudice toward bisexuals than do gays and lesbians. Those who identified themselves as “other” or “asexual,” by contrast, demonstrated the least prejudice toward bisexuals.

While studies that utilize convenience samples are also valuable, the fact that the Dodge et al. study is based on a nationally representative probability sample is important because it means that the study provides generalizable information about our societal outlook as a whole. In an era when the United States government is dropping questions about sexual orientation from its own surveys and even forbidding agencies from mentioning some sexual minorities in their budget requests, the information uncovered in the Dodge et al. study will undoubtedly prove all the more valuable. See, e.g., Lena H. Sun & Juliet Eilperin, CDC Gets List of Forbidden Words: Fetus, Transgender, and Diversity, Wash. Post (Dec. 15, 2017). Moreover, this trend in the federal government is highly likely to lead to less research funding being available for the study of LGBT communities, which in turn will make studies based on nationally representative probability samples more difficult to conduct because of the expense of obtaining such samples.  

In short, this study will serve as an indispensable resource for legal scholars who conduct empirical work or who engage in normative scholarship on bisexuality. It provides a much-needed lay of the land as to prevailing attitudes regarding bisexuality, demonstrating that, although attitudes have improved somewhat over the past fifteen years, perceptions of bisexuals still lag behind those of gays and lesbians. Moreover, the study particularly highlights the need for strategies to reduce stigmatization of bisexual men.

Rules vs. Standards

Sarah Lawsky, A Logic for Statutes (Fla. Tax Rev., forthcoming), available at SSRN.

Professor Sarah Lawsky (Northwestern) has written a fascinating and thought-provoking essay on the logic of statutory interpretation—specifically as it applies to the Internal Revenue Code. Notwithstanding a long tradition of scholarship addressing the interpretation of legislative texts in general, careful attention to interpretation of the Code has received comparatively little attention. An important reason for this, as we have argued in previously published articles, has been the tendency to frame Code provisions as rules and to apply them deductively to the facts of particular cases. Such a practice pushes in the direction of a more-or-less mechanical interpretation of the Code, which in turn makes questions regarding statutory interpretation seem fairly uninteresting. Professor Lawsky’s essay engages directly and critically with this practice.

Professor Lawsky argues that while the application of statutes involves “rule-based reasoning,” it is “not best understood as merely deductive.” Rather, the proper logical model for understanding statutory reasoning is what Professor Lawsky calls “default logic.” She argues that application of the Internal Revenue Code does not proceed as the direct, deductive application of an individual statutory provision to a set of facts; rather, the structure of the Code comprises two different orders of rules: (1) “default rules” (if-then rules) and (2) priority rules (rules that establish the “relationship between” and the “relative priority of” the default rules). As an example, Professor Lawsky applies this more complex rule structure to Section 163(h) of the Code (which permits a deduction for home mortgage interest), and argues that default logic “more accurately reflects rule-based legal reasoning as actually practiced by lawyers, judges, and legislative drafters.”

What has prompted us to comment on Professor Lawsky’s forthcoming article is its conception of statutes, generally, and tax statutes, particularly, as rules. Professor Lawsky understands her project of developing a “logic for statutes” as explicating “rule-based reasoning,” and her proposed model for statutory reasoning is one that applies multiple orders of rules. But as we have claimed in our own work, a complex statute, including the Internal Revenue Code, cannot be reduced to rules. 1

To see where Professor Lawsky’s approach differs from ours, consider that her analysis explicitly “examines the structure of rule-based reasoning after ambiguities [in the statutory rule] are resolved and the meaning of the rule’s terms established.” As we see it, to by-pass engagement with the ambiguities of a statutory text is to neglect the very issues that form the core of statutory interpretation. As Karl Llewellyn, whom Professor Lawsky appropriately cites, famously argued, a statutory text is intrinsically susceptible to different constructions, and applying the text requires choices among those different constructions. These choices, we have argued, require taking into account a variety of often competing values. In the context of interpreting the Code, they include tax values, values having to do with the significance of statutes, and broader social values. And it is precisely because these values are multiple and heterogeneous that statutory provisions appear “ambiguous.” In short, ambiguities in statutes cannot be “resolved,” much less assumed away, without making decisions about which values will be advanced. Indeed, this swirl of relevant values renders the very rules on which Professor Lawsky’s approach depends—the default rules and the priority rules—ambiguous; that is, determination of just what the default and priority rules are requires the choices Llewellyn pointed to.

Moreover, when we sort through the complex of values relevant to interpreting tax statutes, it turns out that many provisions in the Internal Revenue Code are best interpreted not as rules at all, but as standards. As we have argued, for example, determining whether catching a record-breaking homerun baseball or receiving a haircut from one’s spouse constitutes “gross income” under section 61(a) of the Code requires that all relevant facts and circumstances be taken into account. That is, the definition of income is a standard, and the application of standards cannot be subsumed within Professor Lawson’s model of default and priority rules. That model simply will not tell us whether this or that accession to wealth counts as gross income under the Code.

Interpreting section 61(a) as a standard enables judgments about what is and is not income. However, those judgments (like all judgments involving the application of standards) are necessarily contestable and provisional, turning on debate over what facts and circumstances are relevant—the opposite of conclusions arrived at through deductive reasoning. In this sense we agree with Professor Lawsky about the inadequacy of a simple deductive model of statutory reasoning. Where we differ is in the reason for the inadequacy. Professor Lawsky believes that statutory reasoning requires complexifying the deductive model by adding priority rules to resolve conflicts among the default rules. We believe that what appear to be conflicts among statutory rules are often better understood as the indeterminacy that occurs when standards are applied to new facts and circumstances.

Our particular disagreements notwithstanding, Professor Lawsky’s analysis of statutory reasoning in the context of tax law is an important contribution to this undertheorized concern for practitioners and scholars. From our different perspectives we share the objective of showing that the application of the Internal Revenue Code is a more complex enterprise than has been traditionally thought. Her objection that statutory interpretation is “taken as simple in legal scholarship” seems to us a correct worry, especially when applied to tax analysis. Professor Lawsky’s essay vigorously engages with that mistaken view, and in so doing, pushes forward the development of this critical issue in tax jurisprudence.

  1. * See Alice G. Abreu & Richard K. Greenstein, The Rule of Law as a Law of Standards: Interpreting the Internal Revenue Code, 64 Duke L.J. Online 53 (2015); Alice G. Abreu & Richard K. Greenstein, It’s Not a Rule: A Better Way to Understand the Definition of Income, 13 Fla. Tax Rev. 101 (2012); Alice G. Abreu & Richard K. Greenstein, Defining Income, 11 Fla. Tax Rev. 295 (2011).
Cite as: Alice Abreu & Richard Greenstein, Rules vs. Standards, JOTWELL (May 26, 2018) (reviewing Sarah Lawsky, A Logic for Statutes (Fla. Tax Rev., forthcoming), available at SSRN), https://zetasec.jotwell.com/rules-vs-standards/.

Photo Plugin Test

Beth Tucker Long

Beth Tucker Long

Lorem ipsum dolor sit amet, an soluta ceteros mandamus his. Nominavi offendit accusamus ne duo, facilisis patrioque in mel. Ullum nonumy ne nam. Sea et dicant corrumpit, per utroque dissentiet cu. Harum prompta insolens at eos, ea mel solet maluisset, no eos case postea.

Melius numquam vix no, usu ne mazim choro. Ad vim regione recusabo, ut nusquam reprimique efficiendi eam, ne illud civibus vis. Per quaestio eleifend ut, causae viderer appellantur eu eum, his dicam doctus inciderint in. Ex libris omittantur qui.

Atqui causae et mea, mei ea putent viderer facilis. Omnesque appetere at vis, tation iisque ei ius, ne eius choro recusabo his. Ex nam esse vero, at est luptatum expetenda interpretaris. Percipit praesent similique nam eu, qui et sale summo eruditi. Diam scribentur has ei.

Nec malis periculis eloquentiam eu, aeque blandit sea an. Ex vim vocent vidisse, ius malis affert sanctus eu, ne pro expetenda assentior. Mei ei oblique malorum, enim fuisset ut eum, qui duis ullum integre et. Sumo posidonium nam in, tale aliquip nusquam nam ne, ea sea meliore fierent elaboraret. Ut vim adhuc pericula incorrupte, quo wisi diceret in. Ludus facete mea ne, eu has iisque sapientem assentior, cum te possim perfecto.

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Duo lorem dicam sensibus ex, te accusam ancillae salutatus vix. Nulla commodo vis cu. Te nec veritus volutpat, per quas decore democritum ad. Commodo scriptorem efficiantur ex vim, ne vim elit invenire, usu decore audire suscipit an. Et mea rebum modus mollis. Elit dissentiet cu mei. Duo exerci aliquip ornatus te, te per feugait accommodare.

Title Testing Post

Will the title be saved? That is what we are testing. It didn’t work in the previous post until I shifted the main post text box to “visual” and even then it only saved one letter the first five times I tried. it. Maybe this will be better?

Will the title be saved? That is what we are testing. It didn’t work in the previous post until I shifted the main post text box to “visual” and even then it only saved one letter the first five times I tried. it. Maybe this will be better?Will the title be saved? That is what we are testing. It didn’t work in the previous post until I shifted the main post text box to “visual” and even then it only saved one letter the first five times I tried. it. Maybe this will be better?

Will the title be saved? That is what we are testing. It didn’t work in the previous post until I shifted the main post text box to “visual” and even then it only saved one letter the first five times I tried. it. Maybe this will be better?Will the title be saved? That is what we are testing. It didn’t work in the previous post until I shifted the main post text box to “visual” and even then it only saved one letter the first five times I tried. it. Maybe this will be better?Will the title be saved? That is what we are testing. It didn’t work in the previous post until I shifted the main post text box to “visual” and even then it only saved one letter the first five times I tried. it. Maybe this will be better?

Footnote Testing Post

A. Michael Froomkin, Blog Post, Discourse.net (2017).

Our footnote plugin has been abandoned, and WordPress advises against using it. 1 I’ve long believed that neither Paul Ryan nor Mitch McConnell were quite nuts enough to fail to extend the debt ceiling. It’s not even mainly that McConnell at least likely understands how terrible it would be for the US to default on its obligations. No, it’s that failing to pass a debt ceiling increase would be political suicide for Republicans. Their major claim (however undeserved) to the public’s trust — that Republicans are the party of fiscal probity — would be exploded for a generation or more.The new one has to work with both old footnote codes. It must respect both codes.

So I’ve been confident that if push came to shove McConnell runs something through by unanimous consent, or some other means. And I’ve been almost as confident that when Ryan finds he cannot tame the crazies in his own party, he accepts Democratic votes to get a majority. So while the debt ceiling vote is easily the biggest domestic political issue on the near-term horizon, and even today there is no obvious road from there to there (not to mention precious few legislative days when Congress is actually in session), I wasn’t worrying about it all that much.

Indeed, both Sen. McConnell and now Speaker Ryan have promised to get a bill out of Congress.

But now there’s a new wrinkle: suppose Congress passes an eleventh-hour bill and Trump vetoes it? He hasn’t said he would in so many words, but the signs are there in his fued with McConnell; there may be no geological formation known as Trump Peak, but Trump pique could be a giant crater.

After all, Trump has tweeted that he wants the budget to be tied to funding for the Gran Muralla, and wouldn’t mind a government shutdown if he doesn’t get it. In terms of really dumb ideas, t’s not that far to the debt ceiling. And Office of Management and Budget director, Mick Mulvaney originally argued that a US default was not such a big deal — although he’s now recanted and said he wants it raised too.

If there’s a veto, and I think at this point there’s really nothing we can’t put past the guy, we don’t just need a majority in both houses, we need a super-majority — and maybe in a hurry. Are the votes there?

  1. * So we need a new one.
Cite as: Michael Froomkin, Footnote Testing Post, JOTWELL (August 25, 2017) (reviewing A. Michael Froomkin, Blog Post, Discourse.net (2017)), https://zetasec.jotwell.com/699-2/.