This article argues that effective child advocacy is a challenge, given the fact that infants and young children are unable to voice their views or promote their interests, and the related risks that adults will use children to further various adult agendas. True empathy is required to imagine what children would want were they able to think rationally and make informed decisions. But if we were to imagine homeless children capable of making such decisions, then it seems obvious that they would choose international adoption given the horrors of institutional and street life, and the limited options for any kind of adequate home care in their countries of birth. Opposition to international adoption cannot be justified based on any best interest of the child principle, despite the claims of many children's rights organizations. Instead it is grounded in a group of commonly shared but deeply flawed ideas about children and the role of the state, and driven by adult agendas that are not truly informed by children's interests.

This Movement uses the term Racial Disproportionality to indicate that there is something wrong with the system that removes black children to foster care, and it identifies the problem as primarily one of racial discrimination by child welfare decision makers. It calls for addressing the problem by reducing the number of black children removed to foster care to achieve what it characterizes as “racial equity” – the removal of black children at the same rate as white children.

The Racial Disproportionality Movement has already had significant impact. Child welfare leaders proclaim that Racial Disproportionality is the major issue of the day. Many states have accepted the Casey-CSSP Alliance’s lead, and are instituting measures designed to reduce the number of black children removed to foster care. Important federal officials and agencies have endorsed the Alliance’s approach, as have leading private child welfare organizations.

This article analyzes the Racial Disproportionality Movement, and the underlying issues. Child Protective Service agencies remove children to foster care, with court approval, based on reports of child maltreatment, and investigations that substantiate that maltreatment has occurred, and that it poses such serious threats to child safety as to justify removal. The goal is to protect children from repeated maltreatment, to provide services to the parents that enable the children to be safely returned home, and to move children on to adoption if the parents prove incapable of rehabilitation. Black children are identified by child protective services as victimized by serious maltreatment, and in need of the protection that removal, foster care and adoption represent, at higher rates than white children. A central question is whether black children are in fact disproportionately victimized by maltreatment, and in need of child protective services, as compared to their general population percentages. If they are, then they should be removed at rates proportionate to their maltreatment rates, which will necessarily be disproportionate to their population percentages. Racial equity for black children would mean providing them with protection against maltreatment equivalent to what white children get. If black children are in fact disproportionately victimized by maltreatment, the Movement’s proposed reform solutions would put black children at risk for being victimized by maltreatment at higher rates than white children.

The evidence indicates that black children are indeed disproportionately victimized by maltreatment. This is to be expected given that black families are disproportionately characterized by the risk factors associated with maltreatment, including severe poverty, serious substance abuse, and single parenting. This is reason for concern and for reform action. And it does represent an important racial problem, even if not the problem identified by the Movement. Children may need the protection provided by removal to foster care, but children who suffer maltreatment and endure lengthy stays in foster care will be hurt by these experiences, and will as a group not do well later in life. Society should act to prevent the maltreatment, and should feel additional pressure to act because this maltreatment disproportionately affects black children. But the form of action should be quite different from that proposed by the Movement. We should expand programs designed to prevent maltreatment from occurring in the first place. We should provide greater support to families at risk of falling into the kind of dysfunction that results in maltreatment. This should in turn result in a reduction in the percentage of black children in foster care, without putting those children at undue risk.

To date there has been no adequate debate on the issues at the heart of the Racial Disproportionality Movement, because the Casey-CSSP Alliance and its allies have overwhelmingly dominated the discourse. This Article is designed to illuminate the issues surrounding the current racial picture of child maltreatment and foster care, so that policy makers can take action that will protect rather than endanger black children.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: They were more likely to adopt strict liability than appointed courts. But surprisingly, state courts elected to longer terms were the most populist. Many of these judges never expected to face another election, but even without direct political pressure, they were the most responsive group of judges in adopting Rylands after the floods.

This historical episode illuminates the differences between types of political influence on judges. Judicial elections generally may produce judges more sympathetic to public opinion and more responsive to recent events. Longer terms, shielding judges from opposing political pressure from industry favoring the fault rule, then allowed judges to follow those sympathies or new perceptions of public interest in favor of strict liability.

The historical record suggests that judicial elections plus long terms shaped a more responsive bench. A shorthand for these effects are: filtering, role fidelity, and fear and favor. First, these elections created a populist filter: Elections seemed to have filtered out some elite jurists from major urban centers and filtered in more local lawyer-politicians, who would be more connected to public opinion. Second, borrowing from the language used by nineteenth-century advocates of judicial elections and by modern historians, I suggest that the elected judges’ “fidelity” to the people led them to perceive public opinion as an important factor in their decisions.

Even with filtering and role fidelity, judges elected to short terms would still face the reality of “fear and favor,” due to special interests and partisan renomination politics. Elected judges with more job security could be more faithful to their role (hence, “role fidelity”) and could follow their own perception of public interest or public opinion, rather than industrial interests. The Article concludes with some priorities for judicial reform based upon this historical episode.

This Article examines when communications with third party consultations should be protected. It is informed, in part, by some empirical research I conducted on attorneys' communications with external public relations consultants. It argues that exchanges between attorneys and third party consultants should be protected in certain circumstances. As a means to achieve that protection, this Article recommends the attorney-client privilege protect these exchanges when there is a strong nexus between the consultant's service and the legal advice provided to the client. It proposes that the proponent show that communication with the third party was necessary to provide legal advice or services. To guard against the use of attorneys as shields for non-privileged communications and to help the court determine that the primary purpose of the exchange was for legal (as opposed to business) advice, it proposes that courts also take into account: 1) whether the lawyers were not skilled in the area in which they sought expert assistance; 2) the way the communication was conducted or distributed; 3) contemporaneous documentary support e.g., a separate retainer agreement; and 4) the substance of the law involved. Unlike the narrowest standard, this multi-factored nexus test embraces the role third party consultation plays in the provision of legal advice to large corporations. Unlike the broadest standard, this test prevents the ease with which corporations can funnel communications with third party consultants unrelated to legal services through their attorneys for protection. Further, these recommendations simplify the current doctrine and make it slightly more predictable.

Immigration is a hot button issue about which Americans have sent a clear message. They prefer not to admit more aliens until the government is able to credibly screen for entrants who will abide by the terms of admission and sanction those who do not. While immigration debates now focus almost entirely on undocumented workers, they have overshadowed another critical, yet poorly understood challenge: designing institutions to properly screen for aliens who are visa-compliant and sanction non-compliant aliens. Because failed guest worker programs unquestionably increase the size of the undocumented population, this article addresses the difficulty of institutional design by analyzing the highly controversial guest worker provisions of the Immigration and Nationality Act. This article presents original data from a study of visa-compliance decisions of Jamaicans who work in Canada under a program in which screening is precise, sanctioning is effective and compliance is high. On the basis of this study, this comparative immigration law project contends that the United States should partially outsource screening and sanctioning to source-labor countries.

This article critiques the historical uni-national approach to immigration law. This approach fails to recognize that there are critical asymmetries between the United States and the countries from which aliens originate in their capacity to gather information about potential entrants and to sanction visa-violators. This recognition leads to the following insight: source-labor countries are often better placed to screen because can access accurate information about potential entrants from their communities. Source-labor countries are also often well-placed to deter non-compliance because through collective sanctioning, they can influence communities of origin to persuade their members to abide by visa terms. The criminal law scholarship regularly recognizes the impact of norms on deterring crimes; this ethnographic study suggests that the same may be true with respect to immigration violations. This article contends that aliens are more likely to be compliant so long as the authorities design legal rules that augment compliance norms already present in source-labor communities and incentivize community members to reinforce them.

Section 501(c)(3) of the Internal Revenue Code prohibits charities from intervening in a political campaign for or against a candidate for public office. The IRS currently interprets the campaign-intervention ban to absolutely prevent charities from communicating their views on candidates, even if such communications are completely financed by non-501(c)(3) affiliates.

This article argues that the current IRS enforcement paradigm is unconstitutional because it exceeds the government interest in preventing tax-deductible donations to be used for campaign-intervention. A constitutional interpretation exists under the current statutory framework, but it would require the IRS to shift its focus exclusively to campaign-intervention-related expenditures. The IRS could compel 501(c)(3) organizations to make all expenditures through a non-501(c)(3) affiliate using funds that were raised on a non-deductible basis, or receive reimbursement from a non-501(c)(3) for all such expenditures.

Enforcement of the ban under the proposed “expenditure” paradigm requires an ability to “value” campaign-intervention speech to provide a means for a non-501(c)(3) affiliate to pay for or reimburse the cost of such speech. This article evaluates competing valuation theories, and finds that campaign-intervention speech that communicates a charity’s endorsement of a candidate (whether official or unofficial) may “cost” more than commentators have previously considered. Because an endorsement implicates the “goodwill” that an organization has built up using tax-deductible contributions, it may well be appropriate to take the cost of developing that goodwill into account in determining the cost of the campaign-intervention communication. The article proposes some guidelines for valuing the speech of charities, taking the cost of goodwill into account. It concludes that an “expenditure” paradigm that adequately valued the speech of charities may be more enforceable, and therefore more effective at limiting excessive or abusive campaign-intervention speech by charities, while staying within constitutional parameters.

Current research in law and neuroscience is promising to answer these questions with a “yes.” Legal scholars working in this area claim that we are close to realizing the “early criminologists’ dream of identifying the biological roots of criminality.” In the grip of a “neuroeverything” craze, legal scholars, practitioners, and lawmakers have already begun incorporating new “neurolaw” into criminal adjudications, lawmaking, and criminal law scholarship. These breathless hopes for a neuroscientific transformation of the criminal law, although based in the newest research, are part of a very old story. Criminal law and neuroscience have been engaged in an ill-fated and sometimes tragic affair for over two hundred years. Two failures have appeared in current work that mirror precisely the prior failures. First is the claim is that the various phenomena we call “criminal violence” comprise a single entity, which arises causally from dysfunction within specific locations in the brain (“localization”). Second is that violent crimes are committed by people who are essentially biologically different from typical people (“otherization”). This Article first demonstrates the parallels between current neurolaw claims and past movements in law and neuroscience: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a scientific critique of the shortcomings of current neurolaw claims about the neurological bases of criminal violence. Drawing on research and interviews with leading neuroscientists, this Article shows that causally localizing what we call “criminal violence” to bits of the brain is highly scientifically contestable and epistemologically untenable. In viewing the criminal law-neuroscience relationship through the lens of history of science, this Article hopes to offer caveats to legal users of “neurolaw” and a realistic and constructive portrait of how current neuroscience might inform criminal law discourse about regulating violence.