The Family Law of
Civil Procedure
Lisa Martin, South Carolina
Children have legal rights,
including the right to access the courts. Yet, children typically lack the
legal capacity to represent their own interests in courts, and generally must
rely on adults such as their parents to act for them. When federal courts are
presented with children’s civil claims, the Federal Rules of Civil Procedure
require courts to ensure that children’s interests are protected. To protect
child litigants, courts decide matters such as who can speak and make decisions
for the child within the litigation, and whether the appointment of a
representative, such as a next friend or guardian ad litem, is needed. The
Rules map out a loose process for addressing these concerns, but fail to fully
account for a critical factor in court decisions about the interests of child
litigants: the role of parents as
parents.
Because parents have
constitutionally-protected authority to care for and control their children,
litigation brought on a child’s behalf presents a classic tangle of rights and
obligations between parents, children, and the state. This collision between
family law and federal procedure gives rise to numerous questions, including:
what preference, if any, parents should have to represent their children’s
interests in litigation; what deference, if any, should be given to parents’
litigation decisions by courts; when parents’ constitutional rights give them
independent standing to vindicate their children’s rights, and how should
courts proceed when children’s and parents’ rights conflict?
This article untangles the
parent-child-state issues that inevitably arise when child litigants come
before the federal courts and provides an analytical account of the family law
of civil procedure.
Eliminated: The
Disappearance of Disability
Katherine Moore, Seton Hall University
Increasingly, medical technology
and the law coordinate to eliminate the occurrence of disability in our
society. This is happening even as these fields fail to recognize the serious
implications of technological advances such as genetic disease screenings and
cochlear implants; laws regarding physician-assisted suicide and consent to
sexual activity; or attempts to cure conditions such as autism. The rush to
advance in these areas overlooks a number of very real consequences.
Eliminationism is any set of
policies, beliefs, and actions that serve to eliminate disability or advocate
for its elimination. It is the confluence of factors that combine to reduce the
instance of disability in society. Eliminationism need not be intentionally
directed to reduce the number of people with disabilities, yet that is its
frequent consequence.
Traditional bioethics embraces an
approach that prioritizes a particular conception of the “good:” one in which
people are at their optimal health, and in which disabilities are managed or
cured. This article will address how to preserve advancements in technology and
the right to individual choice, while also addressing the concerns of eliminationism.
Potential solutions may include more education and integration, along with
support for disabilities even as they may fade in frequency.