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Unwed dads in court

by Walter Olson on March 13, 2014

A New Jersey judge has ruled that a mother-to-be doesn’t have to notify the estranged unwed father that she is going into labor or let him into the delivery room [ABA Journal] Meanwhile, a suit filed on behalf of unwed fathers is challenging Utah’s adoption laws, which they say improperly enable mothers from out of state to visit Utah for purposes of depriving unwed fathers of rights of notification or objection they would otherwise enjoy under their home state’s law [Salt Lake Tribune]


There are so many reasons to resist the FDA on this action — really, as many reasons as there are individual 23andme users. Some of us want to seek out distant relatives and clues about national origins, or satisfy curiosity about patterns of disease in our family lines. For adoptive families, home genome testing can be hugely valuable in cases where one knows little about the medical history of an adoptee’s birthfamily. It’s our body, and our right to inform ourselves about it — or so we thought.

Some are blaming the company for rolling out the popular service in the absence of a clear regulatory go-ahead, and, in recent months, ignoring repeated signals of the FDA’s wish that it submit to comprehensive regulation that would greatly drive up the cost of its service. But other commentators have suggested that the firm has some pretty decent legal arguments that its service is not subject to regulation as a diagnostic test or “medical device” (genetic predispositions are not diagnoses). As an information-based service, it might even enjoy protection under the First Amendment. Admittedly, the company waved a red flag in front of regulators when it launched a marketing campaign that stressed the possible health benefits of knowing one’s genetic predispositions. But as Timothy Lee argues at the Washington Post:

Having more information about your health status is never dangerous by itself. It only becomes dangerous if patients use it to make dangerous medical decisions. But most dangerous medical decisions can’t be made unilaterally; they generally require the assistance of licensed medical professionals who will do their own assessment of the situation before performing procedures that could harm patients.

The FDA very likely has decent legal grounds to forbear from a crackdown should it choose to. But the key takeaway sentence from Matthew Herper’s piece in Forbes criticizing the company is: “This is not the way to deal with a powerful government regulator.” Disrespectful, anti-authority attitudes from someone an agency intends to regulate? Ask former Buckyballs CEO Craig Zucker where that gets you.

What can users, potential users, and well-wishers do?

* “First, download your 23andMe raw results now if you have them,” warns Razib Khan at Gene Expression.

* If you like signing petitions, there’s one here asking the FDA to back off.

* In a separate piece for Slate, Khan suggests where the situation might head before long: services like this can move offshore. All the relevant information consumers want from them can be delivered via the web. In the mean time a highly innovative and valuable enterprise will have been pushed out of the U.S. to some freer part of the globe, but maybe we need to get used to that happening.

And then? It may take a while before our government works up the nerve to ban mailing a saliva sample to a foreign address. Based on existing trends, I’d guess the more likely intervention, circa 2018 or so, would be for the Treasury to direct credit card companies not to process payments from U.S. residents to genome kit providers. Would we have the spirit to resist then? And if then, why not now? More: Alex Tabarrok, Slate Star Codex (by analogy, “banning people from weighing themselves without a prescription is neither clinically nor ethically sound,” although weight awareness sometimes leads patients into unwise health decisions), Nita Farahany, Brad Warbiany, earlier 2011. Alex Tabarrok’s post is especially worth reading, an excerpt:

…Indeed, genetic tests are already regulated. To be precise, the labs that perform genetic tests are regulated by the Clinical Laboratory Improvement Amendments (CLIA) as overseen by the CMS (here is an excellent primer). The CLIA requires all labs, including the labs used by 23andMe, to be inspected for quality control, record keeping and the qualifications of their personnel. The goal is to ensure that the tests are accurate, reliable, timely, confidential and not risky to patients. …

…the FDA wants to judge not the analytic validity of the tests, whether the tests accurately read the genetic code as the firms promise (already regulated under the CLIA) but the clinical validity, whether particular identified alleles are causal for conditions or disease. The latter requirement is the death-knell for the products because of the expense and time it takes to prove specific genes are causal for diseases….

The FDA also has the relationship between testing and clinical validity ass-backward. The FDA wants to say no to testing until clinical validity is established but we are never going to discover clinical validity until we have mass testing.

More: Richard Epstein/Point of Law, BoingBoing, more from Ron Bailey.


Following an Oklahoma Supreme Court ruling, the youngster has been handed over to adoptive couple Matt and Melanie Capobianco, which most likely spells an end to the legal ordeal [CNN, earlier]

Meanwhile, in yet another indication that propositions that are controversial in the rest of the country are uncontroversial in the American Bar Association, the ABA last month endorsed a resolution (PDF) calling for “full compliance” with, and in general uncritically endorsing the operation of, the Indian Child Welfare Act of 1978; reportedly, no dissenting voice was raised.

The New Republic, meanwhile, gives favorable ink to what it calls the “new anti-adoption movement.” While adoption poses plenty of genuine and difficult ethical and policy issues that deserve a full airing (and even the occasional train wreck at its far fringes; reactions here (PDF), here) sloganeering about “reproductive justice” and intimations of false consciousness (“subtle brainwashing”) on the part of birthmothers who choose adoptive homes for their children are likely to obscure the good that adoption can do [Balding/Yan, SSRN via @tylercowen]


Despite the Supreme Court ruling, birthdad Dusten Brown says he “will not voluntarily” return Baby Veronica to adoptive couple Matt and Melanie Capobianco, and the Cherokee tribe has unfortunately given encouragement to his stance [Tulsa World, Michael Schearer, SCOTUSBlog (high court refuses to block adoption)] “Before the hearing [in Tahlequah, Okla.], Cherokee County sheriff’s officials ordered a Tulsa World reporter to leave the third floor of the courthouse, where the hearing was to be held. The Sheriff’s Office then closed the entire courthouse to reporters, yet members of the public were allowed access to the building.” [Tulsa World] Following threats of arrest and pressure from the governor of Oklahoma, Brown has now entered mediation with the Capobiancos [Tulsa World, more coverage]

Meanwhile, although defenders of the Indian Child Welfare Act have tended to applaud its elevation of tribal interests over the best interests of actual children, the Native American Rights Fund, revealing a newfound enthusiasm for the latter, has filed a suit purportedly on Veronica’s behalf arguing that her best interests are not being taken into account in the adoption. And the girl’s biological mother, Christy Maldonado, has announced plans to file a suit asking for parts of the Indian Child Welfare Act to be struck down as unconstitutional. [Associated Press/WCIV, Indian Country Today]

P.S. I do not rush to blame Mr. Brown, who, even if erring, is erring as many of the rest of us would. I do blame the Cherokee authorities, Native American Rights Fund, and others for irresponsibly egging him on as they stake out a maximalist position on behalf of a bad law.


“… and I oppose the Indian Child Welfare Act…..I fought for my right to choose where my child grew up.” [Frances Danger, XOJane, earlier here, etc.]

Cato’s Caleb Brown interviews me for yesterday’s Cato Daily Podcast on the Supreme Court’s recent decision in Adoptive Parents v. Baby Girl [earlier]. More on “constitutional avoidance” and Justice Thomas’s noteworthy concurrence: Will Baude, PrawfsBlawg.

Yesterday, in Adoptive Couple v. Baby Girl, the Supreme Court dodged the constitutional flaws of the Indian Child Welfare Act, instead choosing to rely on statutory interpretation to reverse a lower court’s troubling decision. The very first sentence of Justice Alito’s majority opinion hints at one of the underlying constitutional difficulties with ICWA, its assignment of family-law entitlements by race: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Justice Thomas’s important concurrence points to another reason to doubt the statute’s constitutionality—its ouster of state courts from their traditional supremacy in family law, based on sources of federal authority (such as the Indian Commerce Clause) that have never been recognized as supporting such ouster.

Justice Sotomayor’s dissent has some force in arguing that the majority is departing from the most natural reading of ICWA’s text, as well as Congress’s likely intent, and in particular that it may be casting doubt on some rights of biological, noncustodial Indian fathers that Congress may have intended the law to protect. As Justice Thomas rightly argues, however, today’s ruling makes sense in light of the doctrine of constitutional avoidance, in which the Court construes doubtful laws so as to avoid possible unconstitutionality. Eventually, if not in this case, ICWA’s constitutional difficulties will be back before the Court in a form it can’t evade. My April coverage of the case in Reason is here; background at SCOTUSBlogRadioLab. [cross-posted from Cato at Liberty]

P.S. Feelings run high on both sides of the Baby Veronica controversy. The Christian Alliance for Indian Child Welfare has backed the Adoptive Couple side and seeks reform of ICWA. By contrast, talk show personality Melissa Harris-Perry recently described adoption by non-Indians of kids with Indian blood as “transnational baby-snatching” [MSNBC, at 2:27] Another opposed view: Steve Russell, Indian Country Today ["The enemies of Indian sovereignty understand the 14th Amendment equal protection clause to be their friend."]


May 31 roundup

by Walter Olson on May 31, 2013

  • The American Illness: Essays on the Rule of Law, new book from Yale University Press edited by Frank Buckley, looks quite promising [Bainbridge]
  • So the New York Times gets spoon-fed “confidential” (and disappointingly tame) documents from the old Brady Campaign lawsuits against gunmakers, and then nothing happens;
  • IRS commissioner visited White House 118 times in 2010-11. Previous one visited once in four years. Hmmm… [John Steele Gordon, more] (But see reporting by Garance Franke-Ruta and commentary by Yuval Levin.) Did politics play role in 2011 Gibson Guitar raid? [IBD]
  • Supreme Court of Canada: “Judges may ‘cut and paste’ when writing their judgments” [Globe and Mail]
  • Lack of proper land title and registration holds Greece back [Alex Tabarrok]
  • I try not to clutter this blog with links to memoir-ish personal pieces of mine, but if you’re interested in adoption, or in how America manages to be at once the most conservative and the most socially innovative of great nations, go ahead and give this one a try [HuffPost]
  • Big Lodging and hotel unions don’t like competition: New York City’s war against AirBnB and Roomorama [John Stossel, Andrew Sullivan]


IRS scandal roundup

by Walter Olson on May 28, 2013

  • List of times IRS officials misled public [] Ongoing link roundups by Paul Caron at TaxProf;
  • Four agencies piled onto Texas tea partier’s business. Happenstance? [Jillian Kay Melchior] Some Tea Party groups seeking (c)4 status pursued electioneering; unnamed former IRS officials defend agency’s practice [Confessore, NYT] IRS denial of non-profit status to Free State Project [Atlas]
  • “Maybe one side of an issue is considered more political than the other.” [Tim Carney] “To me, the real story is the low status of the Tea Party.” [Arnold Kling]
  • “Too Hard to Fire Misbehaving Bureaucrats?” [Conor Friedersdorf, Chris Edwards, Hans Bader]
  • President is lucky he’s not CEO of big company, or he’d need to seek legal advice re: “Responsible Corporate Officer Doctrine.” [Daniel Dew, Heritage]
  • IRS also drawing fire for flagging high share of families taking adoption tax credit; abuse rate proved low [USA Today]
  • Do federal agencies treat FOIA requests even-handedly? [Examiner/CEI on EPA, Daily Caller on FCC]

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That’s the objective of a “Step Forward For Orphans March” in Washington, D.C. a week from today, May 17, led by Craig Juntunen of Both Ends Burning, a father of adopted children from Haiti [Daily Beast]. As one Facebook commenter put it: “We don’t really need ‘easier’ adoptions — we need to eliminate corruption, and streamline the bureacratic procedures, making the process more transparent and predictable.” And: “the solution to corruption in international adoption is to target corrupt officials, not to leave children in orphanages.” Perhaps the most appropriate target audience for the D.C. march would be the embassies of foreign governments, transnational organizations in the U.N. system, and well-meaning NGOs that have rationalized moratoria on international adoption; the U.S. government itself, by contrast, has tended to behave in ways friendlier to the practice.

Is ICWA, the Indian Child Welfare Act of 1978, unconstitutional, bad policy, both, or neither? Does it impermissibly hand out rights in domestic relations disputes based on forbidden grounds of race and lineage? My new Reason piece on SCOTUS’s adoption heartbreaker is now out. ICWA advocates have argued that the law should be read generously as an effort to remedy a long earlier history in which Indian kids had been improperly been taken out of their homes. More on the case: SCOTUSBlog (I recommend in particular the amicus brief on behalf of family law experts Joan Heifetz Hollinger and Elizabeth Bartholet), ABA, oral argument transcript. And for a viewpoint extremely different from mine, Matthew Fletcher and Kate Fort write up the case at the Indian law blog Turtle Talk (first, second).(& SCOTUSBlog, How Appealing)


He signed his unwed-dad rights away by text message — then, when the girl was more than two years old, the baldly race-based Indian Child Welfare Act got them back for him. Today the Supreme Court will hear oral argument in the case of Adoptive Couple v. Baby Girl, otherwise known as the Baby Veronica case. [Washington Post, Michael Schearer, earlier here, here]


March 7 roundup

by Walter Olson on March 7, 2013

Supreme Court roundup

by Walter Olson on January 15, 2013


June 28 roundup

by Walter Olson on June 28, 2012

  • Cato Institute settles lawsuit over its governance [Adler]
  • As regulators crack down on payday lending, Indian tribes fill the gap [Business Week] Tribal leaders say they are at war with the CFPB, and no, there is no Elizabeth Warren angle [Kevin Funnell]
  • “SEA LAWYER. A shark.” [1811 Dictionary of the Vulgar Tongue via Nancy Friedman]
  • Trial lawyers in Oklahoma, as in Texas and Florida, endow slate of favored GOP candidates [Tulsa World]
  • Simple reforms could ease path to more interstate adoptions of foster kids [Jeff Katz, Washington Post]
  • “Can you say ‘overzealous service mark claimant’?” [@internetcases]
  • “Today, anyone can sue anyone else, regardless of how ridiculous the claim may be. But it wasn’t always like this.” [Don Elliott, The Atlantic]

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April 16 roundup

by Walter Olson on April 16, 2012

  • Although I’m known as a foe of everything John Edwards stands for, I hope he beats this campaign finance rap [Atlantic Wire]
  • Michael Bloomberg launches demagogic new campaign against Stand Your Ground laws, calling to mind the recent critique of the NYC mayor’s paternalist dark side by Conor Friedersdorf in the Atlantic;
  • Jerry Brown frees grandmother dubiously jailed in shaken-baby death [Slate, earlier]
  • As Scruggs (Dickey not Earl) still pursues vindication, Alan Lange looks back on Mississippi scandals [YallPolitics]
  • Deservedly favorable profile of Fifth Circuit judge Jerry Smith [NOLA]
  • In which I tell off Bill Donohue’s Catholic League for its double insult last week to gays and to adoptive parents [IGF]
  • “The Ninth Circuit was, believe it or not, correct” [Ilya Shapiro and Trevor Burrus, Cato, on administrative law case arising from NLRB rules change on drug rep overtime]


March 6 roundup

by Walter Olson on March 6, 2012

  • D.C. Circuit’s Janice Rogers Brown: three-decade-long case over Iran dairy expropriation raises “harshest caricature of the American litigation system” [BLT]
  • Legal blogger Mark Bennett runs for Texas Court of Criminal Appeals as Libertarian [Defending People, Scott Greenfield] And Prof. Bill Childs, often linked in this space, is departing TortsProf (and legal academia) to join a private law practice in Texas;
  • Ambitious damage claims, more modest settlements abound in Louisiana oil-rig cleanup suits [ATLA's Judicial Hellholes, more, more, earlier]
  • Better no family at all: Lawprof Banzhaf jubilant over courts’ denial of adoption to smokers [his press release]
  • “The worst discovery request I’ve ever gotten” [Patrick at Popehat] And yours?
  • Concession to reality? Class action against theater over high cost of movie snacks seen as dud [Detroit Free Press]
  • FCPA is for pikers, K Street shows how real corruption gets done [Bill Frezza, Forbes] Dems threatening tax-bill retribution against clients whose lobbyists who back GOP candidates [Politico]

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