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Abstract: This essay responds to the question of What next for law and behavioral biology? by describing an approach to legal scholarship that relies on the scientific method. There are two steps involved in this approach to legal scholarship. First, the legal scholar must become familiar with an area of scientific research that is relevant to the development of law and policy. (This essay uses behavioral biology research as an example.) Second, the legal scholar must seek and form relationships across disciplines, becoming an active member of a scientific research team that conducts studies relevant to particular issues of law and policy. This approach to legal scholarship does not conceive law as a science. It also does not place the legal scholar in the role of a scientist or empiricist. Instead, it places the legal scholar in a much more modest role - as a participating member of a scientific research team. In this role, the legal scholar contributes to a research endeavor that employs the scientific method to produce new knowledge mostly in small, incremental steps. This scholar strives for nothing more than to participate in the production of new knowledge and the effective communication of that knowledge to other scholars, legal decisionmakers, and policymakers. It is a role that requires humility and promises significant advances in knowledge relevant to law and policy.
legal scholarship, law, behavioral biology, scientific method
Abstract: Despite the efforts of public officials to reduce the time children spend in foster care, many children live in foster homes for a substantial portion of their childhoods. In fact, a child placed in a foster home may remain in that home for an extended period, with a significant possibility of remaining there permanently. In light of this situation, the decision to place a child in a particular foster home is extremely important. The federal Multiethnic Placement Act (MEPA) significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child's foster care or adoptive placement on the basis of race, color, or national origin. Federal officials have interpreted MEPA as barring public agencies from routinely and systematically considering race when placing children in particular foster homes. In other words, MEPA precludes these agencies from pursuing children's interests through a policy or practice of matching a child's race with that of his or her foster parent. To date, commentators who have examined MEPA have focused their attention on identifying and weighing the benefits and harms of transracial adoption for minority children and communities. As a consequence, they have not addressed the impact of MEPA on foster care placement decisions in any detail. In contrast, this article examines foster care placement decisions. More specifically, this article uses behavioral biology research on kinship cues and social psychology research on in-group favoritism to formulate a hypothesis that has implications for MEPA's prohibition on the routine consideration of race in making foster care placement decisions. Namely, children placed with non-kin, same-race foster parents are likely to be safer and healthier than children placed with non-kin, different-race foster parents. The article calls for a test of this hypothesis, explains how such a test may proceed, and discusses possible implications for law and policy addressing race and foster care.
child welfare, foster care, race
Abstract: Public child welfare systems rely heavily on kin to serve as foster parents, requiring public actors to consider and choose among different types of available kin (e.g. maternal grandmothers, paternal grandfathers, matrilateral aunts). Behavioral biology researchers have been exploring kinship relationships and the expected level of investment in child care for different types of kin. This paper explains the relevance to kinship foster care of behavioral biology research on kinship relationships and expected levels of parental investment. This research allows for the development of a rank listing of second-degree kin in terms of their likely level of investment in a related foster child. The paper describes how the rank listing could serve three beneficial functions within public child welfare systems. First, child welfare researchers could use the listing to formulate and test hypotheses concerning expected levels of investment by different types of kin in order to develop sophisticated kinship foster care placement practices and policies. Second, public actors could use the listing in conjunction with other relevant considerations when choosing among second-degree kin who step forward to serve as a foster parent for a particular child. Third, public actors could consider the listing, along with other factors, when making decisions about the level of monitoring and support services that is appropriate for particular foster care placements.
child welfare, domestic relations, juveniles, kinship and foster care, law and society, science and technology, social welfare
Abstract: The Westermarck theory maintains that incest avoidance arises from the physical proximity of siblings during a critical period of early childhood. This proximity gives rise to an inhibiting effect on post childhood sexual interest. Two recent studies of sibling relationships have verified and refined the Westermarck theory, indicating that the critical period extends through the first four years of childhood. The theory and the studies have implications for child welfare laws, policies and practices surrounding the placement of siblings in foster care. Namely, the findings provide powerful reasons for placing siblings together during the critical period in order to minimize the risk of post childhood sibling incest. Although public child welfare systems currently recognize the value and benefits of placing siblings together, these systems fail miserably in this area because of a lack of resources. By focusing on children in the critical period of development, resource-poor public systems can marshal their will and target their resources to actually place this discrete group of siblings together, avoid increasing the risk of post childhood sibling incest, and realize all the benefits of maintaining sibling relationships.
Foster Care, Family Law, Incest, Child Welfare, Juvenile Law,
Abstract: In 1997, Congress enacted the Adoption and Safe Families Act (ASFA) in an attempt to reform the nation's troubled public child welfare systems. In passing ASFA, Congress emphasized two primary themes. First, Congress made clear that the paramount goal for public child welfare systems is to secure the health and safety of the children who enter these systems. Second, Congress recommitted public child welfare systems to the goal of securing timely permanent placement outcomes for children.
An appreciation of ASFA's historical context is necessary to gain an understanding of its actual goals and its consistent design. Consideration of the historical context is also necessary in order to assess the likelihood of ASFA's success. As became apparent under Adoption Assistance and Child Welfare Act of 1980 (AACWA), the breach can be quite wide between legislative design and actual implementation in the trenches of public child welfare systems.
Because of the need to consider ASFA's historical context, Part II of this article assesses the implementation of AACWA. Part III examines ASFA in light of the AACWA experience and assesses the likelihood of, and the role of legal professionals in, the effective implementation of ASFA. Part IV considers the possibility of additional congressional action.
Adoption and Safe Families Act, ASFA, Adoption Assistance and Child Welfare Act of 1980, AACWA, public child welfare systems, reform, permanent placement, permanency planning ,health and safety of children, implementation, legal professionals, legislation, congressional action
Abstract: The clinical movement has had a dramatic impact on the nation's law schools. Administrators and faculty members cannot successfully ignore it or wish it away. Instead, they must address it and seek ways to harness its energy. My perspective on this subject stems from my entry into academia as a clinician. I was a faculty member in the University of Michigan's Child Advocacy Law Clinic for three years before joining the faculty at the University of Pittsburgh in 1990 with the charge to create and implement an in-house clinic program. Over the past ten years, I have assisted in the creation of the Child Welfare, Corporate Counsel, Elder, Environmental, Health, and Low Income Taxpayer Clinics. Thus, my actions indicate that I am a supporter of clinical legal education. However, my support is not unconditional.
Clinical legal education poses uncomfortable challenges and significant problems for legal educators. Several are mentioned in this work. Yet no matter what one thinks about clinical teaching methods, clinical faculty status, or even clinical education in general, I believe that the creation of clinics can transform a law school's curriculum and environment in many positive ways.
legal clinics, clinical legal education, clinical education, teaching methods, faculty status, interdisciplinary skills, methodology, experiential learning program, community involvement
Abstract: Public child welfare systems increasingly rely on kin to serve as foster parents. This study tests two hypotheses concerning kinship foster care that have been formulated based on evolutionary theory and behavioral biology research. The first hypothesis is that on average foster children are likely to benefit from higher levels of parental investment and realize better outcomes if placed with kin rather than non-kin foster parents. The second hypothesis is that on average children in kinship foster care placements are likely to benefit from higher levels of parental investment and realize better outcomes if placed with some types of kin than others. The study uses a large administrative data set from an urban county human services system to compare children who had ever lived in kinship foster care with children who had lived only in non-kin foster care on four primary outcome measures. The study’s findings fail to support fully the first hypothesis. While a smaller percentage of children who had ever been placed in kinship foster care received mental health services following their initial kinship placement, a larger percentage of kinship care children received drug and alcohol treatment services following their initial kinship placement. The differences between the two groups concerning the outcomes of juvenile detention and county jail are not statistically significant. The study also uses a small data set from the primary kinship care agency in the project county to compare outcome measures among placements with different types of kin. The study’s findings fail to support the second hypothesis. The comparison of placements with different types of kin reveals no significant differences in the percentage of children who had experienced mental health services, drug and alcohol treatment services, juvenile detention, or county jail following their primary kinship placement. In addition, the study compares the number of placements for children placed in kinship care within the first three months with the number of placements for children placed only in non-kin foster care or in kinship care after three months, finding that kinship placements were less stable than non-kin placements. This finding is inconsistent with prior comparative research on kinship placements. The study’s results provide guidance for further research in this area.
children, child welfare, domestic relations, foster care, juveniles, kinship, kinship care, law and society, social welfare
Abstract: This article discusses two studies of evolution and human behavior addressing child-adult relationships and explores implications for policies and practices surrounding placement of children in foster homes. The first study indicates that men favor children whose facial features resemble their own facial features. This study may justify public child welfare decisionmakers in considering facial resemblance as they attempt to place children in safe foster homes. The second study indicates that parents are likely to invest more in children who are biologically related to them, thus enhancing their long term well-being. Among other implications, this study may justify public child welfare decisionmakers in attempting to preserve biological families and avoid the removal of children from biological parents. It may also justify maintaining contact between biological parents and children even if removal is necessary. Although this article recognizes that the studies do not provide for comprehensive decisionmaking rules, the article articulates how the studies can be used to incrementally construct, test, and improve policies and practices in a specific area of public activity.
: Juveniles, Law and Society, Human Behavior, Family Law, Behavioral Biology
Abstract: This article brings behavioral biology research on attitude similarity as a kinship cue to bear on the laws, policies, and practices surrounding the placement of children in foster care. The basic logic of the article relies on the nature and power of kinship cues. Individuals perceive others as kin through fallible, often unconscious mechanisms. Because these mechanisms are fallible, individuals may come to believe that unrelated persons are kin. Once a cue gives rise to the perception of kinship, the individual who acquires this perception about another person is more likely to treat that other person favorably, providing important benefits to this other person. This prosocial behavior could certainly benefit foster children. More specifically, if foster parents perceive their foster children as kin, they may provide better care, likely reducing incidents of maltreatment. Attitude similarity serves as a kinship cue. Individuals who share attitudes on a variety of items are more likely to treat each other favorably. This article explores how public actors may be able to construct a kinship cue that elicits prosocial behavior by matching foster parents with children who share their attitudes.
foster care safety, kinship cue, behavioral biology, attitude similarity, prosocial behavior, pro-social, maltreatment
Abstract: This article proposes that modern child custody law should be reassessed in light of recent scientific findings. Judicial determinations of custody use the "best interests of the child" rule. The rule is justified to a large extent by the goal of maximizing child developmental outcomes. The assumption is that a child whose "best interests" are protected stands a better chance of becoming a socially well-adjusted, productive and prosperous citizen.
Recent child development studies have shown that so-called "shared environment," or home environment factors have little effect on child development so long as the shared environment is minimally adequate. Genetics and "non-shared environment" have a far greater influence on child development outcomes. While other reasons for the "best interests" rule may ultimately justify it, maximizing positive child development is not a justification supported by science.
behavioral genetics, child decision rule, child custody law, best interests of the child, shared environment, home environment factors
Abstract: A recent decision by the United States Supreme Court has brought into sharp focus important questions about the nature and extent of parents' prerogatives to dictate how their children are raised. In the case of Troxel v. Granville, the Court addressed a Washington third-party visitation statute that permitted "any person" to petition for visitation with a child. Under the statute, a petitioner had to allege that visitation would serve the child's best interest. A judge hearing such a petition could order visitation whenever he or she found that such visitation may serve the child's best interest.
The United States Supreme Court's consideration of the Washington statute resulted in a splintered array of opinions that call for a serious and full public discussion of third-party visitation statutes. Justice Scalia's opinion opens the door to such a discussion by moving the issues away from constitutional rights rhetoric that only leads to confusion and stalemate in discussions of family policies and issues. He wisely calls for the public discussion and debate to begin. The participants in this public discussion would be well served by a deep and probing consideration of the family's political functions within a large pluralistic democracy.
Troxel v. Granville, parents' prerogatives, child's best interest, third party visitation statutes, rights of custodial parents, parental rights, children's rights, political functions of the family
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