1 347 U.S. 483 (1954).Google Scholar

2 Mnookin explains that the book owes its origins in part to the Foundation for Child Development, which had funded some of the law reform initiatives for children and then assembled a group of scholars to evaluate the results and to produce this book (at pp. x-xi). The book resembles other case studies of law reform litigation (see e.g., D. Horowitz, The Courts and Social Policy (1977); R. Kluger, Simple Justice (1975)), but it covers more than one substantive area and is also more specific than general treatments of public law in its focus on litigation on behalf of children.Google Scholar

3 431 U.S. 816 (1977).Google Scholar

4 428 U.S. 132 (1976).Google Scholar

5 451 U.S. 1 (1981).Google Scholar

6 422 U.S. 391 (1975).Google Scholar

7 419 U.S. 565 (1975).Google Scholar

8 See, e.g., Chayes, Public Law Litigation and the Burger Court, 96 Ham. L. Rev. 4 (1982); Chayes, Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976); Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions, 65 Va. L. Rev. 43 (1979).Google Scholar

9 I develop these points more fully in Minow, Rights for the Next Generation: A Feminist Approach to Children's Rights, 9 Harvard Women's L.J. 1 (1986), and in Minow, Interpreting Rights: An Essay for Robert Cover, Yale L.J. (forthcoming).Google Scholar

10 For example, see the discussion of the idea of the “mature minor” in the Bellotti case, 428 U.S. at 195, 206—10, 216—18, 224–25, 262–63.Google Scholar

11 Jackson, Memo on Brown v. Board of Education, Feb. 15, 1954 (quoted in R. Kluger, Simple Justice 689 (1975)).Google Scholar

12 Mnookin describes in an early chapter five characteristics of adjudication that differentiate the judicial process from legislative and administrative processes: “1) The parties who initiate a lawsuit are responsible for presenting the arguments and evidence to the judge, who is an impartial and neutral third-party” (at 59); “2) Judges are generalists, not specialists” (at 59); “3) Litigation is characterized by formal procedures that guarantee each party an opportunity to present arguments and proof” (at 60); “4) The judge must decide on the basis of the evidence in the record and the appropriate rules of law” (at 60); and “5) The scope of the judge's remedy is defined by the legal duty which the defendant has breached” (at 61). Mnookin draws on the work of Abe Chayes (see generally The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976)) who argues that federal courts have the flexibility to involve multiple parties, to deploy masters, and to use other techniques to meet the challenges of complex public law litigation. Indeed, the full force of Chayes's work would challenge Mnookin's description of adjudication. Chayes's approach responds to the charge of judicial illegitimacy by combining legitimacy and competency concerns: the judicial role is legitimate if it produces efficacious results and if the court mechanisms provide competencies to meet the challenges; and the judicial role is competent because its earmarks of legitimacy include procedures and forms that produce results.Google Scholar

13 By urging this emphasis on process, conversation, and continually reconstructed boundaries, I invoke a shift from a world view presuming the possibility of objectivity and discovery of a world unaffected by the discoverer, toward a world view emphasizing the interconnection between the seen and the one(s) doing the seeing. See generally T. Heller, M. Sosna, & D. Wellbery, Reconstructing Individualism: Autonomy, Individuality, and the Self in Western Thought (1986). In legal thought, this shift means moving beyond a notion that legal power is vested in separate spheres of government, based on a 19th-century metaphor using the image of property boundaries for the separation of powers, for federalism, and even for male and female roles and authority. The focus instead addresses the relationships between people that constitute and reconstitute connections even in the assertion of boundaries.Google Scholar

14 Michelman, Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4, 76 (1986).Google Scholar

15 Settlement or compromise itself is not necessarily good, and does not necessarily mean that conversation has been full. See Erlanger, Chambliss, & Melli, Cooperation or Coercion? Informal Settlement in the Divorce Context, Disputes Processing Research Program, Working Papers Series 7, 7—6 (Institute for Legal Studies, University of Wisconsin Law School, Mar. 1986); Melli, Erlanger, & Chambliss, The Process of Negotiation: An Exploratory Investigation in the Divorce Context, Disputes Processing Research Program, Working Papers Series 7, 7–1 (Institute for Legal Studies, University of Wisconsin Law School, Dec. 1985); Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 Harv. Women's L.J. 57 (1984).Google Scholar

16 428 U.S. 132 (1976).Google Scholar

17 The federal legislation picked up the antilabeling feature of the Goss ruling in its Juvenile Justice Delinquency Prevention Act of 1974 (at 499).Google Scholar

18 An important difference should be drawn where the courts invoke constitutional bases for argument. In these situations, courts may be able to secure a privileged position in the political dialogue—a position gaining special attention—the same way that in our culture a claim of rights in a conversation may gain special attention, even if it ultimately fails. Our culture includes as a powerfully persuasive claim the appeal to ideals about more than who we already are, and more than the self-interest of those in power—-especially given a self-conscious history of Americans as immigrants and members of many minorities.Google Scholar

19 See M. Vile, Constitutionalism and the Separation of Powers (1967).Google Scholar

20 See generally G. Bateson, Mind and Nature: A Necessary Unity (1980); N. Goodman, Ways of Worldmaking (1978); P. Watzlawick, ed., The Invented Reality (1985).Google Scholar

21 Here Mnookin quotes Martin Shapiro: “[Courts] are part of the government, they make public policy, and they are an integral part of the law-making and enforcement process which is the central focus of political activity. If legislatures are political and executives are political, then courts must be political since all three are inextricably bound together in a process of making law, and each sometimes performs the functions that each of the others performs at other times” (quoting M. Shapiro, Stability and Change in Judicial Decision-Making: Incrementalism or State Decision? 2 Law Transition Q. 134 (1965)), at 524.Google Scholar

22 They also recommend judicial solicitation of comments by parties on proposed judicial decrees—a vivid extension of the implicit idea of courts as orchestrators of conversations.Google Scholar

23 See infra at 321.Google Scholar

24 See Mnookin at 162 (describing interplay among the branches as elaborate minuet); at 224—46 (discussing litigation as “a forum for moral discourse” but also forum that curtails discourse on matters already resolved by precedent); see Burt, at 339, 362 (court drawing new parties into dialogue, and judge confronted with task of persuading the community through dialogue).Google Scholar

25 L. Tribe, Constitutional Choices 13 (1985).Google Scholar

26 In fact, rather than case-by-case review of each child's claims at the agency level, the parties stipulated that henceforth the welfare agency would direct all cases to a judicial contempt proceeding, thus eliminating agency discretion. Here is an instance where the legislative activity actually reduced case-by-case review at the administrative level.Google Scholar

27 But see G. Gilmore, The Ages of American Law (1978) (pathway to hell laid with procedural due process).Google Scholar

28 In another context, Drucilla Cornell articulated the connection between the refusal to respond and the ethics of a community: “When we refuse to give reasons, when we refuse to respond as if the other could still understand us, we no longer treat him or her as a subject we can talk to. By doing so we deny the other the status of an ethical subject, we treat the other no longer as an end, but as a means in the power struggle.” Cornell, Taking Hegel Seriously: Reflection on Beyond Objectivism and Relativism, 7 Cardozo L. Rev. 139, 182 (1985).Google Scholar

29 See J. Kagan, The Nature of the Child (1984); R. Kegan, The Evolving Self (1982).Google Scholar

30 See Cornell, Cardozo L. Rev. at 165 & n.76 (cited in note 28) (discussing “regulative ideal” as constitutive of social practice, and examining critical standards governing true dialogue). It is tempting to assert that it is no more a foreign invasion of the schools, the bureaucracy, or even the family to summon recognition of the “right to be heard” than it is to maintain that people in these contexts should not sit on top of each other or violate other conventions developed to permit collective life. Yet it is fair to criticize a judicial command that, for example, teachers give students a ‘right to be heard’ as a challenge to the conventions within that particular institution. A constructive criticism of this sort would urge judicial directives pushing institutions like schools to develop their own processes to promote recognition of each person, cf. Brown v. Bd. of Educ., 349 U.S. 294 (1955) (directed development of local plans by district courts working with school boards); and yet, to mean anything significant, those directions must not abandon to those institutions entire control over defining what amounts to sufficient processes, see Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1 (1971).Google Scholar

31 See also infra at 311–12 (assessing Bellotti and the other cases).Google Scholar

32 J. Zipes, Fairy Tales and the Art of Subversion 192 (1983) (describing the liberatory sense of authors of fairy tales).Google Scholar

33 H. Melville, Billy Budd, Sailor, in H. Melville, Billy Budd, Sailor and Other Stories 317, 405 (1985).Google Scholar

34 Mnookin does not discuss the judges who refuse to hear these cases, and the attitudes they might bring to the subjects.Google Scholar

35 McManus, May I, Judge? Boston Globe Magazine, June 15, 1986, at 14, col. 3.Google Scholar

36 Id. at 44 (quoting state Representative Paul White).Google Scholar

37 Id. at 54—55.Google Scholar

38 Id. at 58 (quoting Vilma DiBiase).Google Scholar

39 Furstenberg, Teenage Childbearing: Causes, Consequences and Remedies, in L. Aiken & D. Mechanic, eds., Applications of Social Science to Clinical Medicine and Health Policy (forthcoming).Google Scholar

40 U.S. Commission on Civil Rights, Disadvantaged Women & Their Children 9 (1983); S. Buka, M. Peck, & J. Gardner, eds., Better Health for Children: Action for the Eighties 98 (1982); Children's Defense Fund, A Children's Defense Budget: An Analysis of the President's FY 1986 Budget and Children 13, 161 (1985) (“Children's Defense Budget FY 1986“).Google Scholar

41 Buka et al. at 98; Disadvantaged Women & Children, at 10–11.Google Scholar

42 On Bellotti, Sylvia Law wrote me this powerful comment:” On one level, Bellotti also clearly hurt kids. It was not the litigation that hurt, but the law. And given that the law was so disgusting—and it would have been so easy for the courts to tell the state to keep their hands off of the girls—the litigation was inevitable. The ludicrousness of the ‘compromise’ achieved by the courts has deterred some states from doing that which they are constitutionally entitled to do, and that is good. But to chalk this up on the win side of rights for children seems to be stretching. Further, to pursue my larger point, the things that matter to kids and pregnancy seem to be: fights around sex ed in the schools; whether clinics require—as a matter of policy—that kids get parental permission, irrespective of the legal requirements; whether teenagers can use Medicaid without parental knowledge; whether there are family planning and abortion clinics that service kids/poor kids; i.e., all those nitty gritty issues that are not resolved directly in ‘rights terms.’“Letter from Sylvia Law to Martha Minow, Feb. 10, 1986.Google Scholar

43 W. S. Merwin, The Gardens of Zuni, in The Carrier of Ladders 49 (1978).Google Scholar

44 See Children's Defense Fund, A Children's Defense Budget: An Analysis of the FY 1987 Federal Budget and Children 22 (1986) (“Children's Defense Budget FY 1987”); Massachusetts Advocacy Center, The State of the Child, ed. E. Vorenberg, 66 (1982); National Coalition of Advocates for Students, Barriers to Excellence: Our Children at Risk xi (1985) (Barriers to Excellence).Google Scholar

45 Children's Defense Fund, Children Out of School in America 118–19, 124–25 (1974).Google Scholar

46 Children's Defense Budget FY 1986, at 44; D. Moynihan, Family and Nation (1986).Google Scholar

47 Children's Defense Budget FY 1987, at 225; Barriers to Excellence.Google Scholar

48 See Olsen, The Myth of State Intervention in the Family, 18 Mich. J.L. Reform 835 (1985).Google Scholar

49 The analogous question behind Bellotti could be, What legal frameworks should address minors' access to information and resources affecting their sexual and reproductive activities? But it could also involve, What legal rules should govern the opportunities for minors to find fulfilling, rewarding opportunities during adolescence and to develop a sense of hope and competence on the way to adulthood?Google Scholar

50 Mnookin suggests that the teen pregnancy problems in Bellotti fall disproportionately on impoverished and often black minors; surely the risks of poverty increase with the incidence of teen-age parenthood (at 514). See also Children's Defense Budget FY 1986, at 161 (60% of AFDC recipients had their first children as teen-agers). Mnookin also notes that Pennhurst may be an exception. The severely retarded people in the state institution are not disproportionately from poor or minority families; yet the special burdens handicaps pose for family members, and the larger society, identify an issue for this society that shares much with the problems of minority status and poverty and reaches beyond the needs of children (at 514). Given prevailing social arrangements that place the primary burden of caring for a severely disabled family member on the family itself, having a severely disabled child may amount to a financial strain not unlike poverty. And given the prevailing social attitudes about severe disability, the problems of racial discrimination provide an often apt analogy.Google Scholar

51 See S. Tifflin, In Whose Best Interest? Child Welfare Reform in the Progressive Era 8–10 (1982). Recent reforms in fact challenge many of the institutions and practices established during that era, or the bureaucracies that grew from the Progressive inventions. Compare E. Ryerson, The Best-Laid Plans: America's Juvenile Court Experiment (1978) (describing Progressive era invention of the juvenile court) with P. Prescott, The Child Savers (1982) (indictment of recent juvenile court practices).Google Scholar

52 Just as examples, consider the eventual choice of elementary schools for school desegregation (see R. Kluger, Simple Justice (1975)) and the attention to child labor (see L. Costin, Two Sisters for Social Justice: A Biography of Grace and Edith Abbott 100 (1983) (quoting Grace Abbott from 1938: “The child labor movement has in every country supplied the shock troops in the struggle for decent working conditions”)). The innocence and vulnerability of children could increase support for reforms on their behalf that would ultimately contribute to broader reforms.Google Scholar

53 See M. Polani, The Study of Man 29 (1959) (“We cannot comprehend a whole without seeing its parts, but we can see the parts without comprehending the whole”).Google Scholar

54 G. Paley, Friends, in G. Paley, Later the Same Day 89 (1985).Google Scholar

55 Contrast, however, the potentially harmful effects of Santosky v. Kramer, 455 U.S. 745 (1982), which injects due process protection in the form of a “clear and convincing” standard of proof before parental rights may be terminated. Removed from its institutional context, this decision looks reasonable and just, for the state should have to surmount high requirements before severing ties between parent and child. But placed in the context of the foster care setting—where a child may be stuck in the limb of a temporary placement until parental rights are terminated, freeing the child for adoption, perhaps by still another family—the ruling could make more difficult the ultimate goal of securing permanent and continuous placements for children.Google Scholar

56 Probably more troubling to legal scholars is the risk that the opinion justifies a watered down version of due process—permitting a mere conversation to satisfy its requirements. See e.g., Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1276–77, 1316 (1975). See also Comment, Opening the Schoolhouse Door to Procedural Due Process, 290 U. Miami L. Rev. 602, 603–12 (1975) (raising problem of whether Congress or courts determine the scope of process due to protect a given substantive interest).Google Scholar

57 The case study authors suggest assessments of the litigation for the plaintiffs named in the lawsuits. Thus, the plaintiffs in Smith v. Offer were, as a result of the lawsuit, able to remain together as foster families, and the plaintiffs in Goss v. Lopez ultimately finished high school (at 465–466). By noting these details, the authors may implicitly consider these to be good outcomes. Of course, the litigation may have produced these results as part of a one-time litigation effort aside from the rule that emerged from the law reform advocacy. Also indeterminacy problems probably diminish from the vantage point of particular individuals, rather than entire classes of people. It is also possible that results for individual litigants had little to do with the litigation or that the litigation process made life more difficult for named parties, while yielding decisions that benefited others. See R. Hams, Freedom Spent (1978). In general, specific contextual interpretations look most promising in dealing with these problems of knowing how to interpret the results of cases for those immediately involved and those more indirectly affected. Theorists have developed arguments about the general benefits of contextual decision making, see C. Gilligan, In a Different Voice (1982); and other feminist work, see N. Noddings, Caring: A Feminine Approach to Ethics and Moral Education 36–37, 43 (1984) (discussing concretization); see also H. Gadamer, Truth and Method (1975) (hermeneutic approach emphasizing judgment in context). Admittedly, context specificity may not remove indeterminacy problems posed by such issues as child custody, see Mnookin, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950, 970–71 (1979). Still, in such situations where the contest between two possible custodians for a child cannot be resolved easily, it may be that we know something important: neither result will be bad for the child, and we then may need a rule for decision making that simply reduces the financial and emotional costs of uncertainty in the process of decision making itself. See Minow, The Judgement of Solomon, in O. Fiss & R. Cover, The Structure of Procedure (1979). It is these kinds of costs that make individualized, and contextual, decision making in general burdensome—but the commitment to due process represents a preference for those burdens over the risks of other kinds of decision making. See generally I. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals (1978). In this sense, Mnookin concludes that the judicial stay imposed to halt state interference with minors' abortions pending Bellotti v. Baird benefited some minors, but only during the course of the litigation, for the rules changed afterwards (at 236–38).Google Scholar

58 See L. Fuller, Legal Fictions 136 (1967) (“The trouble with the law does not lie in its use of concepts, nor even in its use of ‘lump concepts.’ The difficulty lies in part in the fact that we have sometimes put the ‘lumps’ in the wrong places, and in part in the fact that we have often forgotten that the ‘lumps’ are the creations of our own minds”). Thus, people interested in the issues raised by this book need to talk more expressly about what those issues are—about children. In some measure, this resembles the call of the legal realists for using reason to connect real world causes and effects rather than conceptual analysis internal to a legal system. See Deewy, Logical Method and Law, 10 Cornell L.Q. 17 (1924); and Llewellyn & Frank, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931). I do not pretend that the rhetoric of cause, effect, and interests is any more “real” or any less “abstract” than the language of rights and legitimacy—only that its lumps are in different places.Google Scholar

59 L. Mueller, Reading the Brothers Grimm to Jenny, in L. Mueller, The Private Life 5, 6 (1976).Google Scholar

60 This is not to say that concerns about law, separation of powers, and rights are irrelevant to the interests of particular groups or society as a whole. We can and should assess the effect of particular law suits on the practices and rhetorical vitality of these doctrines. Preserving notions about the independent values embedded in running the system of government and its procedures permits important alternative arguments for litigants whose substantive claims look less promising. Thus these procedural and systemic doctrines may be important devices in promoting continuous conversation among parties and groups whose political power and persuasiveness differ at any given time.Google Scholar

61 See generally G. Steiner, The Futility of Family Policy (1981). See also S. Bowles & H. Gintis, Schooling in Capitalist America: Educational Reform & the Contradictions of Economic Life (1976).Google Scholar

62 Chambers and Wald address this as both a tactical issue for public interest lawyers and a problem of judicial competence and legitimacy, at 129–30.Google Scholar

63 The larger set of issues about why children end up in foster care was presented to the court in Smith v. OFFER by one of the attorneys, but the courts rejected these broad issues (at 90–91).Google Scholar

64 The effort to reach a decision here can be not just mere accommodation and compromise, but instead a responsible decision that relates to its purpose. See M. Polani, A Study of Man 36 (1959) (admitting the problems of knowledge, a searcher for the right answer “will have to guess, but he must make the utmost effort to guess right. The sense of a pre-existent task makes the shaping of knowledge a responsible act, free from subjective predilections”).Google Scholar

65 The critique of autonomy as a premise for rights—and of separation of power as setting unchanging boundaries—rests on an epistemological claim that no one can see boundaries of the self or of human institutions except in relationship to others. This stance permits, if not a glimpse of the whole, then a sense of the relationships among the parts.Google Scholar

66 See J. White, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community 274 (1985).Google Scholar