There is no antitrust law without antitrust law enforcement. Unlocking Antitrust Enforcement contends that existing tools to advance antitrust enforcement are well-suited to confront today’s U.S. antitrust challenges. Primarily focused on efforts by the federal antitrust agencies, these Features lay the foundation for an overarching enforcement agenda.
See Thomas Kaplan & Robert Pear, G.O.P. To Use Children’s Health Insurance as Lure for Averting Shutdown, N.Y. Times (Jan. 16, 2018), http://www.nytimes.com/2018/01/16/us/politics/government-shutdown-immigration-childrens-health.html.
See, e.g., Madison Park et al., Found Shackled and Emaciated, Children of Torture Suspects Are Freed, CNN (Jan. 18, 2018), http://www.cnn.com/2018/01/16/us/california-turpin-13 -siblings-held-captive/index.html [http://perma.cc/A7ZG-A9W6].
See generally, e.g., Robert H. Mnookin & D. Kelly Weisberg, Child, Family, & State 2 (6th ed. 2009) (“Law outlines a framework for the distribution of decisional power among the child, the family, and various agencies of the state. Although the pattern of the law is complex, it seems plain that children generally have less liberty than adults . . . .”); see also Anne C. Dailey and Laura A. Rosenbury, The New Law of the Child, 127 Yale L. J. 1448, 1456 & nn.10 & 13 (2018) (noting the field’s classic dynamic of competition between parents and the state over control of children).
As they explain, the new law of the child necessarily requires overturning or revising the vast body of Supreme Court precedent that contours the current field of children and the law. Id. at 1454 (“The new law of the child thus lays the foundation for revising or overruling many foundational Supreme Court decisions . . . .”).
Id. at 1483; see also id. at 1455 (explaining that law reform via the new law of the child will “encourage new ways of living for both children and adults”).
Id. at 1467-70 (describing the focus “on the developmental arc from dependency to autonomy to the exclusion of other meaningful aspects of children’s lives”).
See, e.g., id. at 1530 (explaining that, under the framework, children can protect their rights to “custodial care, education, safety inside and outside the home, and rehabilitation in the juvenile justice system” through state agency enforcement actions, ongoing litigation where the state is already involved and where judges will weigh children’s interests, or affirmative litigation that they bring against the state); see also id. 1528-32 (articulating children’s rights under the new framework). For further explanation, see infra Part III.
Id. at 1457-67; see e.g., Douglas E. Abrams & Sarah H. Ramsey, Children and the Law: Doctrine, Policy, and Practice 1 (2d ed. 2003) (noting “the delicate interrelationships of rights and responsibilities among children, parents, and the government” as a major theme in the field).
Dailey & Rosenbury, supra note 3, at 1456; see e.g., Mnookin & Weisberg, supra note 3, at 2-3; Laura A. Rosenbury, Between Home and School, 155 U. Pa. L. Rev. 833, 833-34, 833 n.1 (2007). Indeed, several law schools term their family law course some iteration of Child, Family, and State, reflecting this triangulation. See, e.g., Harvard Law School (“Child, Family and State”); Loyola University Chicago School of Law (“Child, Parent and State”), Georgetown Law (Family Law II: “Child, Parent, and the State”).
Id. at 1465 (laws concerning driving, drinking, employment, sexual activity, and criminal prosecution).
See id. at 1461 nn.35 & 36 (noting, for example, that courts may consider a child’s wishes in custody and other family disputes and when evaluating a child’s health care decisions).
Id. at 1526 (noting parental and state obligations to help children overcome concrete barriers to participation includes access to reproductive healthcare because “older children’s ability to attend school, to work, and to participate in political activities often turns on meaningful access to such care”).
Id. at 1453, 1529; see also Deshaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 195 (1989) (“[The Due Process Clause] forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.”). The article asserts that Deshaney was wrongly decided because it relied on cases that rejected adult affirmative constitutional rights and neglected to consider whether children—wholly different than adults—have affirmative constitutional rights. See Dailey & Rosenbury, supra note 3, at 1529-30.
Id. at 1528 (“Some of these rights exist under current constitutional doctrine, but many do not.”); see also id. at 1453-54.
See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (striking down a compulsory education statute); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (striking down statute requiring all children to attend public school); Meyer v. Nebraska, 262 U.S. 390 (1923) (striking down a state statute prohibiting foreign-language instruction); see also Troxel v. Granville, 530 U.S. 57 (2000) (finding unconstitutional a state statute permitting third parties to petition for visitation with children over the parent’s objection); Michael H. v. Gerald D., 504 U.S. 905 (1992) (finding that biological fathers have no constitutionally protected rights to a relationship with their children when a mother remarries, and children have no right to a relationship with the biological fathers).
See, e.g., Suter v. Artist M., 503 U.S. 347 (1992) (finding no congressional intent to allow the private enforcement of the Adoption Assistance and Child Welfare Act, thus determining that children could not sue for enforcement); see also Harris v. McRae, 448 U.S. 297 (1980) (finding that states are not required to fund abortions otherwise not reimbursable under Medicaid due to the Hyde Amendment, which restricts the use of federal funds for abortion). Harris v. McRae would either need to be reversed or severely limited to find a teenager’s right to a state-funded abortion.
Morse v. Frederick, 551 U.S. 393 (2007); Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); see also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822 (2002) (finding the mandatory drug testing of public school students participating in extracurricular activities to be constitutional); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (finding the random drug testing of student athletes to be constitutional).
New Jersey v. T.L.O., 469 U.S. 325 (1985) (permitting school officials to conduct warrantless searches upon “reasonable suspicion” that a student violated the law or a school rule). Although T.L.O. recognizes that children have some privacy rights, it is likely that the new law of the child would still require a re-reading of this case to better capture children’s privacy interests (among others), particularly since the ruling relies on a standard lower than probable cause and allows for searches upon suspicion that a student violated “even the most trivial school regulation.” See id. at 377 (Stevens, J., dissenting).
Kent v. United States, 383 U.S. 541 (1966) (finding a minor may be tried and punished as an adult based on an evaluation of various factors including the seriousness of the crime, the minor’s age, and the minor’s criminal background and mental state). Although Kent affords children specific procedural safeguards before a juvenile court may waive jurisdiction over them, it is likely that the new law of the child would still require a re-reading of this case perhaps to find any waiver unconstitutional. Alternatively, the new law of the child might find Kent troubling because it triggered “automatic waiver” statutes and “prosecutorial waiver” practices where juveniles are automatically transferred to adult criminal court, thereby circumventing the procedural protections that Kent provides. See Mnookin, supra note 3, at 782-83; Kristin Simms Cross, Commentary: When Juvenile Delinquents Are Treated as Adults: The Constitutionality of Alabama’s Automatic Transfer Statute, 50 Ala. L. Rev. 155, 156-57 (1998). This practice has led to greater numbers of youth being transferred to adult court, often at increasingly younger ages. Mnookin, supra note 3, at 783.
See, e.g., Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981) (finding indigent parents have no due process right to counsel during termination of parental rights proceeding); Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977) (finding New York’s procedures for removing foster children from foster homes were sufficient).
Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954); see generally Mark V. Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1925-1950 (2004) (chronicling the litigation strategy in Brown).
See Alan K. Chen & Scott L. Cummings, Public Interest Lawyering: A Contemporary Perspective 501-07 (2013); see also Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015) (holding that same-sex couples have a fundamental constitutional right to marry).
See Adam Feldman & Alexander Kappner, Finding Certainty in Cert: An Empirical Analysis of the Factors Involved in Supreme Court Certiorari Decisions from 2001-2015, 61 Villanova L. Rev. 795, 795 (2016).
Steven J. Burton, The Conflict Between Stare Decisis and Overruling in Constitutional Adjudication, 35 Cardozo L. Rev. 1687, 1687-98 (2014) (explaining Justice Kennedy’s and Chief Justice Roberts’s opinions in Citizens United, 558 U.S. 310; quoting the plurality opinion in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); and quoting Justice Sotomayor’s concurring opinion in Alleyne v. United States, 570 U.S. 99 (2013)).
See, e.g., Chen & Cummings, supra note 60, at 225 (noting an “important limit” to progressive public interest litigation is its dependency on receptive courts, which are waning due to the “increasing conservatism” on the Supreme Court and lower federal courts, and thus making courts “potentially unstable and unreliable institutions for sustaining reform”); Tushnet, supra note 59, at 169 (noting that public interest litigation campaigns died down at the end of the twentieth century due to an increasingly conservative bench).
See, e.g., Dailey & Rosenbury, supra note 3, at 1482 (“To be clear, we do not simply seek to transfer a regime of adult liberal values on children. Our normative account of children’s interests goes well beyond an understanding of the core values that animate law’s regulation of persons more generally.”).
Id. at 1482-83. For example, under the new law of the child, female children would be guaranteed a right to a state-funded abortion, even though adult women own no such right. Id. at 1526.
See, e.g., Chen & Cummings, supra note 60, at 226-27; Tushnet, supra note 59, at 143-44; Derrick Bell, Brown v. Board of Education: Reliving and Learning from Our Racial History, 66 U. Pitt. L. Rev. 21, 26 (2004).
Bell, supra note 67, at 26. Children’s Rights, a leading nonprofit focused on reforming child welfare systems through impact litigation, also highlights this. Of their thirteen open cases, ten are in the monitoring phase, some of which reflect settlements dating back 25 years. Children’s Rights responsibly considers monitoring a central part of its strategy to bring about reform, but the fact that such intensive monitoring is necessary demonstrates the real struggle in effectuating legally recognized rights. See Class Actions, Child. Rts., http://www.childrensrights.org/our-campaigns/class-actions [http://perma.cc/X5C7-TAZ9].
See, e.g., Katherine Hunt Federle, Lawyering in Juvenile Court: Lessons from a Civil Gideon Experiment, 37 Fordham Urb. L.J. 93, 93-96, 104, 107-10 (discussing lawyers’ resistance to client-centered representation of children because of entrenched notions that children are not capable of making rational decisions for themselves).
See, e.g. Justice Ginsburg on How She Thinks Roe v. Wade Should Have Been Decided Differently, Wash. Post (Mar. 2, 2016, 10:11 AM), http://www.washingtonpost.com/video/national/justice-ginsburg-on-how-she-thinks-roe-v-wade-should-have-been-decided-differently/2016/03/02/5c4c7820-e08d-11e5-8c00-8aa03741dced_video.html [http://perma.cc/Q79T -UVVK]; Meredith Heagney, Justice Ruth Bader Ginsberg Offers Critique of Roe v. Wade During Law School Visit, Univ. of Chi. L. Sch. (May 15, 2013), http://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit [http://perma.cc/H5GB-XXDG].
See Martha Minow, What Ever Happened to Children’s Rights?, 80 Minn. L. Rev. 267, 267 & nn. 2-3, 269-70 (1995); Amy Rothschild, Is America Holding Out on Protecting Children’s Rights?, Atlantic (May 2, 2017), http://www.theatlantic.com/education/archive/2017/05/holding-out-on-childrens-rights/524652 [http://perma.cc/T3V8-YG3E] (noting conservative opposition to the Convention on the Rights of the Child); see also, e.g., S. Res. 99, 112th Cong. (2011) (explaining that the Convention would supplant parental authority and therefore should not be ratified, as sponsored by then South Carolina Republican Senator Jim DeMint).
Indeed, women’s rights advocates might find offensive that the new law of the child would protect a child’s right to a free, state-funded abortion, even though an adult woman owns no such right. See Dailey & Rosenbury, supra note 3, at 1526. Such advocates might also voice concern that children’s rights might attach in utero and restrict a woman’s access to abortion. Cf. Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative 229-30 (1999) (noting pro-choice advocates’ concerns about attempts to control substance abuse during pregnancy, against child-rights advocates who seek to protect children from substance effects); Minow, supra note 77, at 283-87 & n.101 (noting the complicated and sometimes hostile relationship between the women’s right and children’s rights movements).
Scholars debate whether or not “the Constitution is a charter of negative rather than positive liberties.” Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (Posner, J.). Compare, e.g., id. (asserting that the federal Constitution does not afford citizens positive rights), with David P. Currie, Positive and Negative Constitutional Right, 53 U. Chi. L. Rev. 864, 886-90 (1986) (arguing that while Posner is generally correct that the Constitution protects negative liberties, the Constitution may also be read as imposing certain positive duties).
See, e.g., U.S. Const. amend. XI (superseding Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)); id. amends. XIII, XIV (superseding Dred Scott v. Sandford, 60 U.S. 393 (1857)). Recent efforts include a constitutional amendment to supersede Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). See, e.g., Getting Big Money Out of Politics and Restoring Democracy, Bernie, http://berniesanders.com/issues/money-in-politics [http://perma.cc/9GEM-Z2Z8]. In his last book, Justice John Paul Stevens proposed six constitutional amendments that would supersede various Supreme Court decisions. John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution (2014).
Stephen M. Griffin, The Nominee Is . . . Article V, 12 Const. Comment. 171, 172 (1995); see also Eric Posner, The U.S. Constitution Is Impossible To Amend, Slate (May 5, 2014, 4:22 PM) http://www.slate.com/articles/news_and_politics/view_from_chicago/2014/05/amending_the_constitution_is_much_too_hard_blame_the_founders.html [http://perma.cc/TGK9-2AY8] (noting the U.S. Constitution is “an outlier” compared to most other liberal democracies that amend their constitutions fairly frequently, sometimes even yearly).
See U.S. Const. art. V. Under Article V, an amendment may be proposed only if two-thirds of each House of Congress vote in favor of it and then three-quarters of the states ratify it. Id. Alternatively, two-thirds of state legislatures can vote for a Constitutional Convention, where an amendment is proposed and then adopted if, again, three-quarters of the states ratify it. Id. The former route has occurred twenty-seven times in history (really only eighteen, since the Bill of Rights was adopted all at once in 1791). See id. amends. I-XXVII; see also Griffin, supra note 82, at 172 (noting that the Constitution has been amended so infrequently because “Article V comes close to requiring unanimity to approve any amendment as a practical matter). The latter route, never. See Stevens, supra note 81, at 4; Michael B. Rappaport and David A. Strauss, Common Interpretation, Const. Ctr., http://constitutioncenter.org/interactive-constitution/articles/article-v/article-v-by-michael-b-rappaport-and-david -a-strauss/interp/22 [http://perma.cc/Q2C8-HR6L].
Debra Cassens Weiss, How Scalia and Ginsberg Would Amend the Constitution, ABA J. (Apr. 21, 2014, 11:30 AM CDT), http://www.abajournal.com/news/article/how_scalia_and_ginsburg_would_amend_the_constitution [http://perma.cc/446S-9HLE].
Even an advocate for the Equal Rights Amendment confessed that she “was not surprised” when the amendment failed, as she “knew from the beginning” how difficult the Constitution is to amend. Mary Frances Berry, Amending the Constitution; How Hard It Is to Change, N.Y. Times (Sept. 13, 1987), http://www.nytimes.com/1987/09/13/magazine/amending-the-constitution-how-hard-it-is-to-change.html
118 Cong. Rec. 9,598 (1972) (counting 84 senators in favor); 117 Cong. Rec. 35,815 (1971) (counting 354 House members in favor).
Alexander White, Keep ‘Em Separated: Article I, Article V, and Congress’s Limited and Defined Role in the Process of Amending the Constitution, 113 Colum. L. Rev. 1051, 1075 n.137 (2013). ERA legislation continues to be introduced, as recently as last year, but passage has still yet to occur. See, e.g., S.J. Res. 6, 115th Cong. (2017); H.R.J. Res. 33, 115th Cong. (2017).
Roberta W. Francis, The History Behind the Equal Rights Amendment, Equal Rts. Amend., http://www.equalrightsamendment.org/history.htm [http://perma.cc/UUG9-R4GP].
Ronald D. Rotunda & John E. Nowak, 6 Treatise on Constitutional Law: Substance & Procedure, app. M (6th ed. 2017) (“Beginning with the proposed Eighteenth Amendment, Congress has customarily included a provision requiring ratification within seven years from the time of the submission to the States.”).
This aspect, however, reflects one of the authors’ most extreme positions, and is seemingly contrary to the ethos of their new framework. The article envisions a categorical ban on homeschooling for secondary school children, see Dailey & Rosenbury, supra note 3, at 1522-23, without any consideration of the individual child’s circumstances. Although the authors claim that the new law of the child “embrac[es] diversity” among children, id. at 1478, and acknowledges that children’s interests vary and are “deeply situational,” id. at 1468, they take an incompatible position in refusing to acknowledge that homeschooling might in some circumstances serve a child’s broader interests.
See id. at 1452; Determining the Best Interests of the Child, Child Welfare Info. Gateway, http://www.childwelfare.gov/pubPDFs/best_interest.pdf [http://perma.cc/EB8E-A6PB].
See id. at 2 & n.12 (listing fourteen states whose statutes do not require courts to consider only the specified factors). Additionally, three states require courts to consider “any other factor” or “other factors” relevant to the decision. See Ga. Code Ann. § 15-11-26(20) (2014); Mich. Comp. Laws § 722.23(l) (2016); Va. Code Ann. § 20-124.3 (2012).
Id. at 1279-83. Although the article casts the Best Interest of the Child analysis as an exercise of “unprincipled judicial discretion,” Dailey & Rosenbury, supra note 3, at 1452, lawyers often rely on a judge’s discretion and “broad equitable powers,” see Odetta, 32 N.E.3d at 1280, to advocate for recognition of child’s broader interests.
Id. at 116-17. There, the juvenile court ordered the aunt not to home school the children for a minimum of one year because they were “accustomed to going to a public school and being involved in both classes with other non-related children and in public school related extracurricular activities.” Id. at 116. The aunt argued the ruling was unconstitutional, but the appeals court found that issue not properly raised. Id. at 117. One judge in concurrence found the homeschooling prohibition constitutional on the merits.
See Dailey & Rosenbury, supra note 3, at 1530 (contemplating agency action to vindicate children’s rights).
See generally Children’s Advocacy Inst., Shame on U.S.: Failings by All Three Branches of Our Federal Government Leave Abused and Neglected Children Vulnerable to Further Harm, U. San Diego Sch. L., http://www.firststar.org/wp-content/uploads/2015/02/Shame-on-U.S._FINAL.pdf [http://perma.cc/D3SU-Z4XR] (arguing that all three branches of the federal government and the states have failed to adequately protect abused and neglected children); see also, e.g., Tom Morton, The Pernicious Failure of Child Welfare Reform, Chronical of Soc. Change (Nov. 21, 2017), http://chronicleofsocialchange.org/child-welfare-2/pernicious -failure-child-welfare-reform [http://perma.cc/5677-7L68] (identifying the structural faults in child welfare agencies).
Admin. for Children & Families, Child Maltreatment 2016, U.S. Dep’t Health & Hum. Services 54, http://www.acf.hhs.gov/sites/default/files/cb/cm2016.pdf [http://perma.cc/6V6Q-WPJW].
Substance Abuse and Child Welfare Resources, Nat’l Conf. St. Legislatures (Feb. 2, 2017), http://www.ncsl.org/research/human-services/substance-abuse-and-child-welfare -resources.aspx [http://perma.cc/X873-L82D]; see also, e.g., Sherry Lachman, Opinion, The Opioid Plague’s Youngest Victims: Children in Foster Care, N.Y. Times (Dec. 28, 2017), http://http://www.nytimes.com/2017/12/28/opinion/opioid-crisis-children-foster-care.html [http://perma.cc/4Z8S-YUMX] (reporting that since 2010, the number of children in foster care has doubled in Montana, increased by eighty percent in Georgia, and increased by forty-five percent in West Virginia).
See, e.g., The Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93-247, 88 Stat. 4; The Keeping Children and Families Safe Act of 2003, Pub. L. No. 108–36, 117 Stat. 800; see also Major Federal Legislation Concerned with Child Protection, Child Welfare, and Adoption, Child Welfare Info. Gateway (March 2015), http://www.childwelfare.gov/pubPDFs/majorfedlegis.pdf [http://perma.cc/NX4H-TLUE] (providing an overview of child protective legislation at the federal level).
For a compilation of state laws, see State Statutes Search, Child Welfare Info. Gateway, http://www.childwelfare.gov/topics/systemwide/laws-policies/state [http://perma.cc/D6XG-LXJB].
Prevention Programs, Child Welfare Info. Gateway, http://www.childwelfare.gov/topics/preventing/prevention-programs .
PISA 2015 Results (Volume 1): Excellence and Equity in Education, Org. for Econ. Co-operation & Dev. 25 (2016), http://www.oecd-ilibrary.org/docserver/download/9816061e.pdf?expires=1520466916&id=id&accname=guest&checksum=6CF4D9B4381F297246B6865DE730E881 [http://perma.cc/UL4Z-F5YS].
Id. at 149, 177, 207; see Joe Heim, On the World Stage, U.S. Students Fall Behind, Wash. Post (Dec. 6, 2016), http://www.washingtonpost.com/local/education/on-the-world-stage-us -students-fall-behind/2016/12/05/610e1e10-b740-11e6-a677-b608fbb3aaf6_story.html [http://perma.cc/EU3Z-J3CF].
State Budget Shortfalls, SFY 2017 and SFY 2018, Kaiser Fam. Found., http://www.kff.org/other/state-indicator/state-budget-shortfalls/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Facing%20Shortfalls%20in%20either%20SFY%202017%20or%20SFY%202018%3F%22,%22sort%22:%22asc%22%7D [http://perma.cc/Y4CC-EA3H].
Fiscal 50: State Trends and Analysis, PEW Charitable Tr. (Mar. 1, 2018), http://www.pewtrusts.org/en/multimedia/data-visualizations/2014/fiscal-50 [http://perma.cc/9J9N -9PHQ].
See, e.g., Dailey & Rosenbury, supra note 3, at 1478 (discussing how law both reflects and shapes reality, and that adopting the new law of the child, which values children’s broader interests, will signal to society to value children’s broader interests, too).
See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000e-2(a) to (d) (2012)) (prohibiting employment discrimination “because of . . . sex”); Education Amendments of 1972, Pub. L. No. 98-318, tit. IX, 86 Stat. 373 (codified at 20 U.S.C. § 1681(a) (2012) (prohibiting sex discrimination in federally funded schools); Pregnancy Discrimination Act of 1978, Pub. L No. 95-555, 92 Stat. 2076 (codified as amended at 42 U.S.C. § 2000e (2012)) (prohibiting, as discrimination “because of sex,” discrimination on the basis of pregnancy, childbirth, or related medical conditions); Violence Against Women Act of 1994, Pub L. No. 103-322, tit. IV, 108 Stat. 1902 (protecting women from gender and sexual violence); 29 C.F.R. § 1604.11 (1980) (EEOC guidelines prohibiting sexual harassment in the workplace and finding it to be a form of sex discrimination under Title VII); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986) (finding sexual harassment, in the form of a hostile work environment, to be a violation of Title VII); Harris v. Forklift Sys., Inc., 510 U.S. 17, 22-23 (1993) (clarifying the definition of a “hostile work environment” under sexual harassment law); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998) (finding employer liability for supervisor sexual harassment); Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (same).
Catharine A. MacKinnon, #MeToo Has Done What the Law Could Not, N.Y. Times (Feb 4, 2018), http://www.nytimes.com/2018/02/04/opinion/metoo-law-legal-system.html [http://perma.cc/6UV2-XZXZ].
Nicole Higgins DeSmet, Burlington Students Win Approval to Fly Black Lives Matter Flag, Burlington Free Press (Feb. 13, 2018, 3:41 PM EST), http://www.burlingtonfreepress.com/story/news/local/vermont/2018/02/13/burlington-students-ask-school-board -permission-raise-black-lives-matter-flag-high-school/328510002 [http://perma.cc/4QXE -Z9WA].
AJ Willingham, Why a High School That’s Just 5% Black Is Raising the Black Lives Matter Flag, CNN (Feb. 2, 2018, 3:30 PM EST), http://www.cnn.com/2018/02/02/us/black-lives -matter-flag-vermont-montpelier-trnd/index.html [http://perma.cc/NK9D-V6JJ].
Emily McCombs, Sexist School Dress Codes Are a Problem, and Oregon May Have the Answer, Huffington Post (Sept. 6, 2017, 4:29 PM EST), http://www.huffingtonpost.com/entry/sexist-school-dress-codes-and-the-oregon-now-model_us_59a6cd7ee4b00795c2a318e5 [http://perma.cc/2EZS-TAWR].
See Arian Campo-Flores & Nicole Hong, How the Florida School Shooting Turned into a Gun-Control Movement, Wall St. J. (Feb. 23, 2018, 3:15 PM EST), http://www.wsj.com/articles/how-the-florida-school-shooting-turned-into-a-gun-control-movement-1519416915 [http://perma.cc/DGA8-TDJZ].
See id.; see also Photos From the “March for Our Lives” Protests Around the World, N.Y. Times, (Mar. 24, 2018), http://www.nytimes.com/interactive/2018/03/24/us/photos-march-for -lives.html [https://perma.cc/85G3-RFR9] (capturing student-led protests against gun violence across the United States and world, including in Germany, Majorca, Colombia, Haiti, France, England, among other places).
After Parkland Shooting, Worldwide “March for Our Lives,” N.Y. Times (Mar. 22, 2018), http://http://www.nytimes.com/aponline/2018/03/22/us/ap-us-school-shooting-mobilizing-a -movement.html [http://perma.cc/P3EV-SKHZ]; see also Campo-Flores & Hong, supra note 128 (noting the use of social media in the #NeverAgain movement).
E.g., Sixty Minutes (CBS television broadcast Mar. 18, 2018) (interviewing Emma González, Cameron Kasky, David Hogg, Alex Wind, and Jaclyn Cornin); Meet the Press (NBC television broadcast Feb. 18, 2018) (same).
See Rachel Siegel, The Parkland Shooting Is Different. The News Coverage Proves It, Wash. Post (Mar. 2, 2018), http://www.washingtonpost.com/news/wonk/wp/2018/03/02/the -parkland-shooting-is-different-the-news-coverage-proves-it [http://perma.cc/3TLU -2YUX].
See, e.g., Campo-Flores & Hong, supra note 128. As of April 18, 2018, Emma González has 1.56 million Twitter followers. Emma González (@Emma4Change), Twitter, http://twitter.com/Emma4Change [http://perma.cc/4CQR-7ZSU].
Gordon R. Friedman, Oregon Passes Gun Control Bill Aimed at Domestic Abusers, Oregonian (Feb. 23, 2018), http://www.oregonlive.com/politics/index.ssf/2018/02/oregon_passes_gun_control_bill.html [http://perma.cc/Y992-4ANG].
Maggie Astor, Florida Gun Bill: What’s in It, and What Isn’t, N.Y. Times (Mar. 8, 2018), https://www.nytimes.com/2018/03/08/us/florida-gun-bill.html [http://perma.cc/K8H8 -6GG3].
Id. The legislation also funds school security, expands mental health services and regulations, and allows certain school personnel to carry weapons—the latter being the most controversial of the measures. Id.
John Blake, Four Reasons the NRA Should Fear the Parkland Student Survivors, CNN (Feb. 22, 2018), http://www.cnn.com/2018/02/21/us/parkland-shooting-youth-social-change/index.html [http://perma.cc/B27N-P492].
Id.; see also Sasha Costanza-Chock, Youth & Social Movements: Key Lessons for Allies (Dec. 17, 2012), http://cyber.harvard.edu/sites/cyber.harvard.edu/files/KBWYouthandSocialMovements2012_0.pdf [http://perma.cc/DML5-WYMN] (describing the importance of youth participation in major social movements).
See id. (reporting on support from Women’s March and 42West); Vikki Ortiz Healy, Ahead of Walkouts Over Gun Issues, Students and Schools Wonder: Can Kids Be Punished for Protesting?, Chi. Trib. (Mar. 2, 2018, 4:40 PM), http://www.chicagotribune.com/news/local/breaking/ct-met-student-walkout-rights-20180228-story.html [http://perma.cc/92RS -H95W] (noting how Women’s March organizers have posted a national school walkout toolkit on its offshoot organization website); Kevin Modesti, Post Parkland, Young Voters Might Show Up in 2018, L.A. Daily News (Mar. 2, 2018, 4:32 PM), http://www.dailynews.com/2018/03/02/post-parkland-young-voters-might-show-up-in-2018 [http://perma.cc/92RS-H95W] (reporting on a partnership between NextGen America, a political action committee, and gun-control advocacy groups led by Gabby Giffords and Michael Bloomberg to register youth to vote).
For a general explanation of a lawyer’s role in community organizing efforts, see Chen & Cummings, supra note 60, at 248-67. For specific examples in the #NeverAgain movement, see Campo-Flores, supra note 128 (explaining a role for lawyers to form a nonprofit, assist with permitting for the Washington D.C. march, and find support to handle the millions of dollars raised).
See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2596, 2605 (2015) (noting societal changes towards accepting marriage equality due to the many referenda, debates, grassroots campaigns, studies, papers, books, writings, litigation, opinions, and amicus briefs that have informed the discussion). Of course, we need not all become movement lawyers to help children change society’s narrative about them. Lawyers in direct services can also use their day-to-day advocacy to advance children’s broader interests. For example, an education lawyer might press a school to promote a child-client’s interest in fostering relationships with non-parents by adding a line item to an Individual Education Program (IEP) that allows the child to meet with a trusted coach or teacher when she feels overwhelmed. She might also advocate for certain elective courses that speak to the child’s interest in new ideas, or structured social settings to build the child’s peer relationships. Additionally, a child’s lawyer in a guardianship case can use the state’s existing Best Interest factors to honor her client’s broader interests in relationships with peers and non-parental adults as part of her strategy in advocating for a particular placement. If in a state that allows the evaluation of all factors, she could intentionally articulate any of the child’s broader interests for the court’s consideration.