Faculty Scholarship Digest
Katherine Hunt Federle
Katherine Hunt Federle, Righting Wrongs: A Reply to the Uniform Law Commission’s Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act, 42 FAMILY L. QUARTERLY 103 (2008).
This article is a vigorous attack on the Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (“URCANCPA”), which the Uniform Law Commission adopted in 2007. Federle argues that the URCANCPA “is a piece of paternalistic legislation that, while ostensibly well-intentioned, undermines the rights of children, violates the Model Rules of Professional Conduct, and sets the law regarding the representation of children back twenty years.” The article explains how URCANCPA departs from a trend among states to appoint “client-directed” lawyers for children in abuse and neglect cases, i.e., lawyers with the traditional role and duties of “client loyalty, client confidentiality, and a duty to advocate for the client’s objectives.”
Under URCANCPA, the article explains, client-directed advocacy is replaced by a best-interests-of-the-child advocate, an approach Federle contends that improperly assumes a severely diminished capacity of all children relative to adults and loses the important values and protections of legal representation, including advocating for a child’s constitutional and statutory rights when those rights match the child’s preferences. The article attributes the negative reaction to client-directed lawyering for children to a misplaced sense of responsibility for the decisions of children and fear of the greater difficulty of adequately counseling juvenile clients. Yet, Federle argues, “it is very clear to those of us who do provide direct legal representation to children that representing children as zealous advocates is not only theoretically and actually plausible but that there is inherent value in ensuring that the child has an advocate for his express preferences.”
Katherine Hunt Federle (w/Paul Skendelas), Thinking Like a Child: Legal Implications of Recent Developments in Brain Research for Juvenile Offenders, in Michael Freeman & Oliver R. Goodenough eds., LAW, MIND AND BRAIN (Ashgate 2008).
In this book chapter, Federle and her coauthor detail what the chapter considers two conflicting developments. On the one hand, recent neurological research (made possible by advances in brain imaging technology) has demonstrated that adolescents are physiologically significantly less well-equipped to reason than adults, and therefore “lack judgment, are more prone to peer influence and impulsivity, and cannot understand the consequences of their actions.” The chapter contends that this research provides “a neural basis for assuming that teens are less blameworthy than adults for the commission of criminal acts.”
On the other hand, the chapter demonstrates that over the past two decades states have overwhelmingly moved towards treating juveniles more harshly in the criminal justice system, including much more frequently treating them as adults. While resisting the view that juveniles’ relative incompetence should lessen their rights in juvenile proceedings (on the ground that rights are at bottom a form of power and thus most important for those with limited capacities) and concluding that blanket findings of incompetence-to-be-tried based on adolescence would be both unrealistic and counter-productive, Federle and her co-author focus on the implications of the brain research for dispositions of juvenile cases, contending that “the traditional goals of punishment are less appropriate for juveniles” and that holding juveniles responsible as adults “is morally wrong and scientifically unsound.”
Katherine Hunt Federle, Lawyering in Juvenile Court: Lessons from a Civil Gideon Experiment, 37 FORD. URBAN L.J. 93 (2010).
This article uses the experience of juvenile law to offer insight for those interested in a right to counsel for the indigent, in particular with regard to the tension between client autonomy and lawyer autonomy, a very real issue in both poverty lawyering and in representing children. Should the lawyer “override client choice when it is for the client’s own good”? Is a crucial part of the lawyer’s role to facilitate moral decision-making by the client? Or is the lawyer not morally accountable for the client’s approach (within the law), with the emphasis on client autonomy promoting the client’s freedom and dignity?
Kate suggests that, in practice, “[t]he degree of client autonomy . . . may depend significantly on the lawyer’s assessment of the client’s competence.” Juveniles have had a right to counsel in the civil context of delinquency proceedings for more than forty years, and the article contends that the experience in that context reveals that the ability to question client competence often leads to the undermining of client autonomy because of a variety of on-the-ground forces, notwithstanding a formal legal framework endorsing autonomy. Moreover, underfunding and poverty have undermined the effectiveness of this right to counsel.
Kate finds three lessons from the civil right to counsel in the juvenile context: even a constitutional right will not always lead to representation; courts and legislatures may be loathe to extend the right further; and, even when counsel is provided, that counsel often may be ineffective. Thus, Kate argues, “[e]ven if there is a civil right to counsel,” that might not be enough. Kate argues that a firm commitment to a client autonomy model is critical to empowering both juveniles and the poor, so that their interests can genuinely be addressed: “The voices of the poor, like those of children, need to be heard.”
Katherine Hunt Federle (w/Danielle Gadomski), The Curious Case of the Guardian Ad Litem, 36 UNIV. DAYTON L. REV. 337 (2012).
In this article, Kate and her coauthor trace the history of the guardian ad litem and the guardian’s role representing children in abuse and neglect proceedings by advocating for the “best interests of the child”; they then use that history to critique this dominant contemporary approach. The concept of guardianship traces back to Roman Law, and the ad litem (for litigation) traces to medieval England, where he was appointed to represent minors with property in litigation. As the article explains, however, these concepts developed when parents did not have “the sort of custodial rights and power we recognize today.” The juvenile court movement at the start of the twentieth century continued this view of the state as ultimately responsible, particularly for children of the poor, so that the court “could interfere with the parental right of custody when the child’s welfare so demanded, as when the parent was deemed neglectful, incompetent or had failed to provide for the child as ‘required by both law and morals’.” In the latter half of the twentieth century, the article explains, concern grew about the rights-infringing nature of such interventions and the incompetence of judges to handle them; so the guardian ad litem emerged, but still to represent the best interests of the child—in sharp contrast of the usual role of a lawyer to represent a client’s expressed wishes.
Kate and her co-author critically examine this state of affairs. First, they note the very structure evidences a recognition that actors in an abuse or neglect proceeding—parents, social services agencies, judges—cannot determine the best interest of a child on their own. Second, they note that the extraordinary indeterminacy of the “best interests” standard invites arbitrary and biased outcomes in particularly disturbing ways in relation to race and class: “guardians may be less respectful for their wards’ preferences, viewpoints, and desires, choosing instead to exert extraordinary power over the direction of the case. Bias may also lead guardians to assume a more adversarial posture with respect to parents and align with the state agency seeking to remove children.” The article concludes with a call for empowering children with a voice in proceedings affecting their relationships with their parents, but taking children’s “claims seriously . . . is only possible if we acknowledge that the guardian ad litem is a barrier to reform.”
Katherine Hunt Federle, A Tribute to Victor Streib, 38 OHIO N. L. REV. 1 (2012).
In this tribute to Professor Streib, Kate points to his accomplishments in modeling the connection between the theory and practice of law. She cites Streib’s book, Death Penalty for Juveniles, as a leading scholarly piece on the problems with capital punishment for children while he also “walked the walk of the practitioner,” by representing juveniles in capital cases, including one that reached the United States Supreme Court. Kate describes his contributions as changing “the face of juvenile justice in the United States for the better.”
Katherine Hunt Federle, CHILDREN AND THE LAW, AN INTERDISCIPLINARY APPROACH WITH CASES, MATERIALS, AND COMMENTS (Oxford Univ. Press 2012).
This deeply impressive “coursebook” is structured around several premises. First, that the course in which it will be used, such as Juvenile Law or Children and the Law, will have a practice orientation, to prepare students to be the best of child advocates. Second, that in “the child-law field, a rich understanding of legal theory may be especially critical” because that underlying theory remains so underdeveloped. Third, that in addition to legal knowledge, practice in the field requires “an understanding of child psychology, child development, neuroscience, history, and social work.” In accordance with these ideas, the book is designed to integrate theory and practice with a multi-disciplinary approach, including articles, studies and research from other disciplines in addition to the usual cases and statutes.
The book thus begins by providing an overview of juvenile law from four different perspectives, history, philosophy, international/comparative, and social science. With these tools provided, the book then offers comprehensive coverage of children and crime (which has distinct procedural and dispositional frameworks), children and protection (covering abuse and neglect and foster care), children and restraints on liberty, and, finally, children and decision-making (including First Amendment rights, medical decision-making, and emancipation). As Kate tells students in an opening section, “[t]he law treats children as a distinct and special group, worthy of protection but also warranting constraint and punishment . . . recogniz[ing] the[ir] culpability. . . while simultaneously acknowledging that their incapacities subject them to parental control and custody.”
Katherine Hunt Federle, Rights, Not Wrongs, 17 INT’l J. CHILDREN’S RIGHTS 321 (2009).
In this essay, Federle reviews Professor Martin Guggenheim’s book, What’s Wrong with Children’s Rights. As the review describes, the book “sets out to prove that giving children rights is bad: for children, their parents, and society.” The essay describes Guggenheim’s view that parental rights and parental authority should be paramount and that children’s rights are problematic because, due to children’s incapacity, such rights ultimately are vehicles for adult claims that only interfere with the core value of parental autonomy. In particular, Guggenheim attacks the “best interest of the child” standard, Federle explains, for “erod[ing] parental rights by permitting state over-intrusiveness.”
The essay finds some area of agreement with Guggenheim’s critique of existing practices. The best interest standard, Federle agrees, “does not provide a coherent way to resolve disputes because it is unknowable.” Unlike, Guggenheim, however, the essay sees the problem not as “too much” children’s rights, but too little. The essay argues that “providing children with client-centered and client-directed lawyers furthers a more coherent rights agenda in which we may speak about rights that remedy the essential powerlessness of children.” The essay explores Guggenheim’s core theory and contests its application in a number of specific legal contexts. “The real problem,” Federle contends, “is not [as Guggenheim suggests] that adults may use children’s rights claims to their own advantage but that the rights claims made on behalf of children are incoherent. . . . It therefore is critical to articulate rights claims on behalf of children that promote children’s legal interests without reference to capacity, protection, or dependence.”
Katherine Hunt Federle, Reviewing WORSHIP AND SIN: AN EXPLORATION OF RELIGION-RELATED CRIME IN THE UNITED STATES, 25 J. OF L. & RELIGION 101 (2009).
Swanger’s book “sets out to persuade us that some crimes are committed because of religion and that this is a phenomenon worth studying.” While Kate’s review concludes that this may, indeed, be a topic worth studying, the book’s “proposed framework lacks the necessary sophistication to provide future researchers with a meaningful starting point.” The review describes the book’s typology of religion-related crime: theologically-based crime (e.g., instances of medical neglect or use of controlled substances), reactive/defensive crime (e.g., certain instances of violence against abortion providers), and abuses of religious authority (e.g., tax fraud or blocking discovery of sexual abuse). Kate notes that religious beliefs have long come into conflict with secular law, so “it cannot come as a surprise that these problems arise in the United States.” Yet, beyond its observation of that rather obvious point, Kate finds that the typology “does little more than illustrate” and fails to provide a real starting point for understanding the relationship between religion and crime.
Katherine Hunt Federle, Status Offenses, in Richard A. Shweder et al. eds. THE CHILD, AN ENCYCLOPEDIC COMPANION (Univ. of Chicago Press 2009).
In this substantial entry, Kate summarizes the history and current treatment of “status offenses”: noncriminal conduct prohibited by state law only when the offender is a juvenile. Typical modern status offenses include “truancy, running away . . . incorrigibility and curfew violations.” Although juvenile courts have had jurisdiction over status offenses since juvenile courts were created in the 20th century, the entry traces the offenses back to the “classist and gendered reform movements of the 19th century,” in which literally removing children (often of immigrants) from vice, corruption, and poverty was seen as a means of breaking a chain of immorality leading to poverty leading to criminality.
The entry describes how the “classist and racist approaches to status offenders . . . are still evident today,” by documenting the differential treatment endured by African-American children and by girls in the adjudication of status offenses. Although many Western countries use agencies other than courts to handle the problems of status offenders and U.N. guidelines specifically prohibit status offense legislation, their use, and the punitive approach to status offenders, remains widespread in the United States, though less so than in the 19th century. The entry also canvasses the constitutional challenges that have been brought against status offenses (and their limited success) and the role the federal government has played (by conditioning funding on compliance with mandates) in shaping contemporary state treatment of status offenders.