Volume 81, Number 2

May 2006

Parent-Child Speech and Child Custody Speech Restrictions

Eugene Volokh

The “best interests of the child” test—the normal rule applied in custody disputes between two parents—leaves family court judges ample room to consider a parent’s ideology. Parents have had their rights limited or denied partly based on their advocacy of atheism, racism, homosexuality, adultery, nonmarital sex, Communism, Nazism, pacifism and disrespect for the flag, fundamentalism, polygamy, and religions that make it hard for children to “fit in the western way of life in this society.”

Courts have also penalized or enjoined speech that expressly or implicitly criticizes the other parent, even when the speech has a broader ideological dimension. One parent, for instance, was ordered to “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic,” because the other parent was homosexual. Another mother was stripped of custody partly because she accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn’t in fact the girl’s biological father.

Courts have also restricted a parent’s religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory (sometimes pure speculation, sometimes based on some evidence in the record) that the children will be made confused and unhappy by the contradictory teachings, and will be less likely to take their parents’ authority seriously.

This article argues these restrictions are generally unconstitutional, except when they’re narrowly focused on preventing one parent from undermining the child’s relationship with the other. But in the process the article makes several observations that may be helpful whether or not readers endorse this proposal: (1) The best interests test lets courts engage in a wide range of viewpoint-based speech restrictions. (2) The First Amendment is implicated not only when courts issue orders restricting parents’ speech, but also when courts make custody or visitation decisions based on such speech. (3) Even when the cases involve religious speech, the Free Speech Clause is probably a stronger barrier to the judge’s penalizing the speech than are the Religion Clauses. (4) If parents in intact families have First Amendment rights to speak to their children, without the government’s restricting the speech under a “best interests” standard, then parents in broken families generally deserve the same rights. (5) Parents in intact families should indeed be free to speak to their children—but not primarily because of their self-expression rights, or their children’s interests in hearing the parents’ views. Rather, the main reason to protect parental speech rights is that today’s child listeners will grow up into the next generation’s adult speakers. (6) Attempts to allow restrictions only when the speech imminently threatens likely psychological harm (or even causes actual psychological harm) to children may seem appealing, but will likely prove unhelpful.

Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders

Margo Schlanger

Lawyers obtained the first federal court orders governing prison and jail conditions in the 1960s. This and other types of civil rights injunctive practice flourished in the 1970s and early 1980s. But a conventional wisdom has developed that such institutional reform litigation peaked long ago and is now moribund. This Article’s longitudinal account of jail and prison court-order litigation establishes that, to the contrary, correctional court-order litigation did not decline in the late 1980s and early 1990s. Rather, there was essential continuity from the early 1980s until 1996, when enactment of the Prison Litigation Reform Act (PLRA) reduced both the stock of old court orders and the flow of new court orders. Even today, ten years after passage of the PLRA, the civil rights injunction is more alive in the prison and jail setting than the conventional wisdom recognizes. Yet while the volume of court-order litigation had, prior to 1996, remained stable, the nature of court-order practice changed from a “kitchen sink” model to something much more precise. Where in the 1970s litigation tended to be broad in scope, with loose standards of causation and sweeping remedies, through the 1980s and 1990s litigation grew ever more resource-intensive, and addressed increasingly narrow topics with more rigorous proof and causation requirements. This Article argues that this change was caused not only by the increasing conservativism of the federal bench, but more interestingly by a generalized skepticism about issues of causation in law, the increased presence of large pro bono firms accustomed to a resource-intensive mode of litigation, and the salience of several extraordinarily extensive litigations as models.

The Demand for Immutable Contracts: Another Look at the Law and Economics of Contract Modifications

Kevin E. Davis

One of the most challenging questions in contract law is whether parties should be free to create contracts that limit their own freedom of contract and thereby, in effect, contract over the scope of freedom of contract itself. So far the debate has revolved around the enforceability of “anti-modification clauses,” which state that subsequent modifications to the contract in which they are contained will be unenforceable. The courts appear reluctant to enforce anti-modification clauses. Some rominent law and economics scholars have argued that in certain circumstances parties would benefit from being able to make their contracts immutable and that courts therefore should enforce anti-modification clauses. This Article advances several claims that contradict the underlying remises of this argument. It begins by setting out a variety of reasons why the demand for immutable contracts, or at least those created by adopting anti-modification clauses, might be low. The central claim is that although anti-modification clauses may be unenforceable, contracting parties can duplicate their economic effects by using a technique labeled the “representative trustee technique.” The essence of this technique is that the parties agree to turn over the benefits of any modification to a trust with a large number of beneficiaries. The conceptual building blocks of the representative trustee technique are all familiar, yet there is no indication of its use in practice. If valid, these observations are inconsistent with the idea that there is a significant demand for enforceable anti-modification clauses. It is, however, possible that, contrary to the primary argument in this Article, contracting parties are unaware of the possibility of adopting the representative trustee technique. In that case, the analysis here is still relevant because it suggests that once the technique is publicized it will satisfy at least some of the demand for enforceable antimodification clauses. In any case, there seems to be no compelling reason to heed calls to enforce anti-modification clauses.


Questioning the Efficiency of Summary Judgment

D. Theodore Rave

The primary justification for summary judgment is efficiency, but the motion’s efficiency has been largely assumed. Avoiding trials reduces costs, but that savings is only realized when the motion is granted. This Note offers a framework for analyzing the efficiency of summary judgment. If the cost of trials avoided does not exceed the cost of summary judgment motions filed, then summary judgment is inefficient. Modern doctrine places a low production burden on defendants moving for summary judgment and a high production burden on plaintiffs opposing the motion, creating incentives for defendants to file many motions and for plaintiffs to incur substantial costs in opposing them. If the motion is not granted with enough frequency and does not have a positive impact on the settlement rate, then its availability and use may cost more than the trials it avoids. Drawing on available empirical data and assumptions based on the incentives of the parties, this Note goes on to lay out some of the conditions necessary for summary judgment to be efficient and concludes with a call for more empirical investigation into the success rate of summary judgment motions and the costs of litigation.


Trade and Morality: The WTO Public Morals Exception After Gambling

Jeremy C. Marwell

Despite a broad commitment to the liberalization of trade in goods and services, Member States of the World Trade Organization (WTO) retain legal authority to impose trade-restrictive measures “necessary to protect public morals.” As a matter of first impression under WTO law, in April 2005 the WTO Appellate Body interpreted the term “public morals” as it is found in the General Agreement on Trade in Services (GATS). The Appellate Body held that certain U.S. laws prohibiting the cross-border provision of Internet gambling services, alleged by the United States to be necessary to protect U.S. public morals, were inconsistent with U.S. obligations under GATS. This Note argues that the test adopted by the Appellate Body to determine whether a given trade-restrictive measure is “necessary to protect public morals” improperly impinges on the autonomy of WTO Member States. The Note proposes an alternative doctrinal framework which would better protect Member State autonomy while guarding against potential protectionist abuses and trade-regulatory inefficiencies. The increasing likelihood that trade-morality conflicts will arise in a heterogeneous WTO, the extensive employment of public morals clauses in trade practice worldwide, and the potential relevance of the public morals clause to the integration of international economic law and human rights suggest the growing importance of this emerging area of international economic law.

Managing the News: The History and Constitutionality of the Government Spin Machine

Jodie Morse

This Note grows out of two recent efforts by the Bush administration to shape media coverage of its programs: secret payments to columnists and the dissemination of fake press reports. It explores the little-studied history of such covert news management tactics and shows that, contrary to the prevailing wisdom, such attempts to manage the media by stealth did not originate with the Bush administration. Though these tactics may be time-honored, they have continually sparked criticism that they compromise the independence of the media. This Note further analyzes the treatment of government news management under current law. After showing why the regulatory regime is irredeemably flawed, this Note contends that judicial intervention is necessary to address core constitutional concerns. Specifically, it concludes that news management tactics that conceal the government’s role as a source are unconstitutional forms of viewpoint discrimination that violate the First Amendment.

Finding Flow: The Need for a Dynamic Approach to Water Allocation

Jenny Huang

Recent crises stemming from diminishing groundwater resources highlight the failure of existing water allocation agreements to account for changing circumstances. This note focuses on two case studies—a dispute over the All-American Canal between the United States and Mexico and a decade-long litigation between Kansas and Colorado regarding the Arkansas River Compact. Domestic and international issues stem from the same challenges of highly technical decisions, changing circumstances, and historical sensitivity of water rights. This Note argues that domestic and international water agreements place too much emphasis on onetime allocations despite warnings that imposing hard and fast rules unnecessarily burdens the ability to adapt to future changes in water conditions. These two case studies further demonstrate that traditional ex post dispute and litigation mechanisms are no longer adequate. After considering challenges to reform, this Note argues that the increasing urgency of water crises around the world have made conditions ripe for institutional change. As a solution, this Note proposes creating joint management institutions that provide ongoing expert administration for the changing dynamic of water resource crises.