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Miller-Jenkins case

Law schools roundup

by Walter Olson on July 9, 2013

  • “Law school plotted to sabotage its own students?” [Steele, Cassandra Burke Robertson, Caron on Phoenix allegations]
  • Bryan Garner’s take on law reviews [Green Bag]
  • Washington & Lee’s innovative practice-oriented third year has drawn much attention, but job placement results lag [Deborah Merritt via Alice Woolley]
  • “Law school sues for liability insurance coverage” [VLW on Liberty U., Miller-Jenkins kidnapping case]
  • The business of one high-flying law school: documents shed light on NYU [Joe Patrice, Above the Law]
  • Concussions: NFL players’ union to fund $100 million Harvard project, including HLS, on football and health [Cohen, Prawfs, with further thoughts from a notorious gadfly on lobbying by lawprofs]
  • John O. McGinnis and Russell Mangas, “An Undergraduate Option for Legal Education” [IRLE/SSRN]
  • Toward more sensible law school rankings? ABA makes it harder to count higher expenditures themselves as a plus [Above the Law]

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March 18 roundup

by Walter Olson on March 18, 2013

  • Justice done in Tewksbury, Mass. as feds won’t appeal loss in Motel Caswell forfeiture case [Institute for Justice]
  • Oh, FTC: “Government Now Says Tweets Have To Include ‘The Fine Print'” [Business Insider]
  • Judge lifts “no Facebook posts” order against class action objector [Paul Alan Levy, ABA Journal, earlier]
  • House Judiciary Committee hearing on litigation abuse feature Ted Frank, John Beisner [link to video, Chamber-backed LNL]
  • Update: minister who aided Miller-Jenkins custody-napping gets 27 month sentence [AP,earlier]
  • Pennsylvania high court judge convicted on charges of using state staff for campaign [AP] Also in Pa., wife/chief aide of high court justice “has received 18 payments as referral fees for connecting law firms with clients” [Philadelphia Inquirer] “Arkansas Supreme Court Justice reports $50k gift from plaintiff lawyer” [LNL]
  • Widow sues church for refusal to accept NASCAR-themed cemetery headstone [IndyStar]

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Law schools roundup

by Walter Olson on November 28, 2012

  • Conservative-turned-away case: “Jurors say they saw hiring bias at U. of Iowa” [Des Moines Register, Caron, Adler/Volokh] Wagner will seek retrial [Daily Iowan]
  • David Lat on the GMU Law conference on law school and lawyer markets [Above the Law, earlier]
  • ABA accreditors defend, but tinker with, standards for minimum law school libraries [Caron]
  • “Comparative notes on German legal education” [Darryl Brown, Prawfs]
  • Spinoff of Miller-Jenkins case: Janet Jenkins sues Liberty U. School of Law charging assistance to custody-nappers, dean calls suit frivolous [ABA Journal]
  • “Law Schools Now 5-0 in Placement Data Fraud Lawsuits by Alums” [Caron] Charles E. Rounds, Jr. reviews Brian Tamanaha book [Pope Center]
  • Does Peoria, Ill. need a new law school? Surely you jest [Campos]

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Law schools roundup

by Walter Olson on October 25, 2012

  • U. Miami: “Law School Email Draws Fire Amid Hotly Contested Retention Election for 3 Top Florida Judges” [ABA Journal, earlier on election]
  • Janet Jenkins sues Liberty U. School of Law, charging assistance to custody-nappers; school describes suit as baseless [ABA Journal, earlier on Miller-Jenkins custody case]
  • “Maybe a lawprof is not what you want in a politician. And yet, Bill Clinton was a lawprof. So was Hillary Clinton. And there are different types of lawprofs. They don’t all listen, give ground, and offer complex caveats!” [Ann Althouse]
  • “Former law student became a chronic litigant” [Boston Globe]
  • Andrew Morriss on Tamanaha’s Failing Law Schools [Liberty Law]
  • “Institute for Humane Studies Webcast on the Pros and Cons of Law School” [Ilya Somin]
  • Fred Rodell knew: reasons not to write law review articles [Matthew Salzwedel, Lawyerist] What a rising law professor should put in a book review [Pierre Schlag via Prof. Bainbridge]
  • Bradley C.S. Watson on law school progressivism [National Review, pay site, mentions Schools for Misrule]

August 17 roundup

by Walter Olson on August 17, 2012


The American Family Association’s zany yet high-profile Bryan Fischer is in the news for calling for an “Underground Railroad” by which his fellow believers would “rescue” kids from gay parents. In my new Huffington Post piece, just up, I trace two main threads in his argument — that gay parents are a menace to their kids, and that extralegal steps are called for to put “God’s law over man’s” – and show how the same messages have been emanating lately from some rather more respectable social-conservative quarters, in Princeton, N.J. and elsewhere. The controversy develops in part from the Miller-Jenkins custody and kidnapping case, long a topic of coverage in this space; in the latest development, Mennonite clergyman Kenneth Miller (applauded by Fischer) has just gone on trial for allegedly abetting the spiriting of Isabella Miller-Jenkins (no relation), now 10, out of the country in defiance of court orders.

Fischer now says he wasn’t suggesting that kids of same-sex couples be abducted from their beds by Christians unrelated to those children, but he definitely is encouraging believers to use extralegal force in cases that pit one of theirs against a gay parent in a custody dispute. He hints broadly that the next test case after Miller-Jenkins will be that of a divorced woman he describes who is losing custody to her gay ex-husband, and who just might disappear with the child into the “Underground Railroad” he promotes. Meanwhile, the Liberty University School of Law in Lynchburg, Va., whose faculty has multiple connections with Lisa Miller’s side of the Miller-Jenkins litigation, stirred criticism when related civil-disobedience precepts reportedly emerged as part of the curriculum in a class.

It might be added that this, like so many unsettling developments on the Right, is not without its parallels on the Left. Since the 1980s and the famous Elizabeth Morgan case, some feminists have operated a so-called Underground Railroad to enable mothers to defy court orders and abduct their kids away from fathers with shared custody or visitation orders. Usually some allegation is made of abuse, but the tactic has been used and applauded even where a judge has considered the abuse allegations and declined to accept them. (Law prof Nancy Polikoff discusses her mixed feelings about the Miller-Jenkins case here).

Reacting to the potential for lawlessness in this realm, Congress has passed at least two statutes of relevance: the International Child Abduction Remedies Act, signed by President Ronald Reagan in 1988, and the International Parental Kidnapping Crime Act, signed by President Bill Clinton in 1993.

Update Aug. 15: Jury convicts Kenneth Miller.


Law schools roundup

by Walter Olson on September 15, 2011

Law schools roundup

by Walter Olson on May 26, 2011

  • Refuting a law review’s vaccine-autism claims [Orac, Respectful Insolence, more, Fair Warning]
  • Should sue-the-cops fliers have used Suffolk U. law school logo? [Boston Herald via Wood, Chronicle]
  • “There’s a saying that ‘the law you learned in law school is the law'” [Bill Araiza, Prawfs]
  • Annals of legal scholarship: law review article on “planetarian identity formation” [SSRN] Larry Ribstein on the trouble with law reviews [TotM, earlier]
  • Enough with the “balance” talk, says organizer of Hastings Law conference on Palestine rights [SFGate]
  • “The entire law school industry … a significant profit center for universities — is a giant bubble” [The New Republic] “Mind-boggling” tuition increases hard to explain other than as product of market distortions [Hans Bader]
  • Liberty Law exam question on notorious kidnapping case raises eyebrows [Sarah Posner, Religion Dispatches; background]
  • “It’s Deja Vu for Louisiana Economy as Law School Clinic, Activists Challenge Air Permit” [WLF]


November 21 roundup

by Walter Olson on November 21, 2010

  • Federalist Society annual convention (which I attended) included panels on anonymity and the First Amendment, judicial recusals, many other topics;
  • Nomination of R.I.’s McConnell to federal bench could soon reach Senate floor [ProJo]
  • “Why U.S. Taxpayers Are Paying Brazilian Cotton Growers $147 Million” [NPR via Popehat]
  • “Litigation Governance: Taking Adequacy Seriously” [Trask, Class Action Countermeasures]
  • “Family” groups vs. a family, cont’d: Vermont Supreme Court upholds Miller-Jenkins custody ruling [Volokh, BTB]
  • OSHA allows more comment on what could be an extremely expensive mandate against noise in the workplace [ShopFloor]
  • Cops who inform on cops are often left to twist in wind [Balko]
  • Interview with Mark Zaid, collector of comic book art with law/legal themes [Abnormal Use]

December 31 roundup

by Walter Olson on December 31, 2009

  • “Court to Plaintiffs: You Have Zero Forum Shopping Days until Xmas” [Jackson; New Yorker seeks to refile pharmaceutical case in Minnesota to overcome statute of limitations defense]
  • Miller-Jenkins battle: Mathew Staver of whimsically named Liberty Counsel won’t comment on whether client has kidnapped child in pursuit of continued defiance of court order [BTB, WSJ Law Blog, background]
  • “How many college football coaches have law degrees?” [Above the Law; Mike Leach vs. Texas Tech] More: Michael McCann, Sports Law; Carter Wood at Point of Law.
  • “Struck by a restaurant’s decor” good if it’s just a figure of speech, bad if it’s falling taxidermy [Lowering the Bar]
  • Trial lawyer message in support of med-mal litigation falls on some credulous ears in media [White Coat]
  • On airport whole-body imaging, some privacy advocates seem to have changed tune [Stewart Baker]
  • “Litigant Guru of Gwinnett, Georgia Loses Lawsuit” [sanctioned over defamation claim; Bad Lawyer via AtL]
  • Step right up and win cash for your vote in the ABA’s blogospheric beauty pageant [Scott Greenfield] Update: contest wraps up [Legal Blog Watch]

December 7 roundup

by Walter Olson on December 7, 2009

  • Woman jailed for “camcordering” after recording four minutes of sister’s birthday party in movie theater [BoingBoing]
  • Senate hearing airs trial lawyer gripes against Iqbal [Jackson and earlier, PoL, Wajert, Beck & Herrmann (scroll)] Franken and other Senators sidestep substance, browbeat witness re: “study” terminology [Alison Frankel, AmLaw]
  • Still time to cancel? “2009 is also the first year of global governance” — new EU president [Small Dead Animals]
  • Miller-Jenkins battle: judge orders custody switch to law-abiding spouse [Box Turtle Bulletin, background]
  • Speedy by government standards? 17 years ago DoT proposed Southeast high-speed rail on existing rights of way, ruling on environmental impact statement is expected next year [McArdle]
  • “New York’s New DWI Bill: Compounding Stupidity” [Greenfield; felony to drive intoxicated with passenger 15 or younger]
  • “Apple Told To Pay Patent Troll OPTi $21.7 Million” [Business Insider]
  • This year’s ABA Blawg 100 listing left out some legal blogs that aren’t half bad [Turkewitz]


October 22 roundup

by Walter Olson on October 22, 2009

  • Unsafe at any read: new Ralph Nader novel panned by Chris Hayes, Washington editor of The Nation [Barnes and Noble Review via Suderman, Reason]
  • Microsoft says “most, if not all” customer data from T-Mobile Sidekick smartphones has been recovered, but class action lawyers say they’re undeterred [Seattle P-I]
  • Sue them all and sort things out later? Lawsuit over Air France Airbus crash off coast of Brazil names long list of aerospace suppliers as defendants [Reuters]
  • “No cash for this clunker”: opposition mounts to proposal for Massachusetts public law school [Boston Herald editorial via Legal Blog Watch, earlier link roundup at Point of Law]
  • Ralph Lauren experiences Streisand Effect over skinny-model nastygram [Althouse, earlier]
  • High-profile L.A. plaintiff’s lawyer Walter Lack speaks under questioning about role in Nicaraguan banana-worker suit against Dole [Recorder, earlier, background] And: “Dole on a Roll: Court Declines to Enforce $97M Judgment” [WSJ Law Blog, Bloomberg]
  • Miller-Jenkins lesbian custody case, much meddled in by conservative religious groups, recalls the ways divorced dads get cut out of their kids’ lives [Glenn Sacks/Ned Holstein via Amy Alkon, background]
  • Daniel Kalder speculates on why the New York Times editorially “purred with approval” of the new FTC blogger regulations in such an “impressively superficial” way [Guardian Books Blog]. More on FTC’s semi-backtracking on the controversy: Media Bistro “Galleycat”, Publisher’s Weekly, Galleysmith. And having been hoping for ages to get a link some day from blogging legend Jason Kottke, this one will go in the souvenir file []


March 27 roundup

by Walter Olson on March 27, 2009

  • Find me someone who speaks Mixtecan, fast: under new California law health insurers must provide patients with certified language interpreters [Ventura County Star]
  • “Law Prof’s Article on His Jury Experience Leads to Overturned Verdict” [ABA Journal]
  • Quick, lock up the Internet: Harvard Law’s John Palfrey wants to unleash child-endangerment suits against online providers [Citizen Media Law]
  • “Another Lesbian Visitation Case has Liberty Counsel Spouting Nonsense” [Ed Brayton; earlier Miller-Jenkins case]
  • “Jury awards need to be fair, not lucrative” [Jackie Bueno Sousa, Miami Herald]
  • Aussie strip club disagrees with exotic dancer on whether faulty pole caused her injury [Brisbane Courier-Mail]
  • Hasbro nastygram over “Little Mr. Monopoly” use [Bob Ambrogi, Ron Coleman]
  • No, “crash of ’09” doesn’t refute “capitalist system”, any more than “car wreck” refutes “auto-based travel”.

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For the fifth time, the U.S. Supreme Court has declined to hear the appeal of Lisa Miller, the Virginia woman who is defying a court order requiring her to allow child visitation by her former lesbian partner. I’ve tracked the case for years as an example of the tendency of some organized Religious Right legal groups — in this case the misnamed Liberty Counsel — to pursue meritless legal positions at length. (Drew Houff, “Justices won’t hear Miller’s visitation request”, Winchester (Va.) Star, Dec. 12) (via Box Turtle Bulletin). One of the Miller camp’s most vocal and misleading public advocates has been evangelist Chuck Colson, who just was awarded a Presidential Citizenship Medal; I discuss that development (and Colson’s career) in a lengthy post this morning over at Secular Right.

Toldjah so: The Virginia Supreme Court has unanimously ruled against Lisa Miller of Winchester, who has been ignoring a duly issued Vermont court order providing her former lesbian partner Janet Jenkins with rights of visitation to the child they had been raising together. Miller’s defiance of the law had been backed by Liberty Counsel, the ironically named pro bono group headed by the dean of Jerry Falwell’s Liberty University School of Law, as well as other conservative religious figures such as Chuck Colson. Despite misreporting to the contrary in some quarters of the conservative press, the case had nothing to do with recognition of the former couple’s Vermont civil union, nor did it eventuate in an award of custody (as distinct from visitation) to Jenkins. (AP/Newport News Daily Press; Ed Brayton and more; our earlier coverage).

May 1 roundup

by Walter Olson on May 1, 2007

  • Jack Thompson, call your office: FBI search turns up no evidence Virginia Tech killer owned or played videogames [Monsters and Critics]

  • How many zeroes was that? Bank of America threatens ABN Amro with $220 billion suit if it reneges on deal to sell Chicago’s LaSalle Bank [Times (U.K.), Consumerist]

  • Chuck Colson will be disappointed, but the rule of law wins: Supreme Court declines to intervene in Miller-Jenkins (Vermont-Virginia lesbian custody) dispute [AP; see Mar. 2 and many earlier posts]

  • Oklahoma legislature passes, but governor vetoes, comprehensive liability-reform bill [Point of Law first, second, third posts]

  • Good primer on California’s much-abused Prop 65 right-to-know toxics law [CalBizLit via Ted @ PoL]

  • “Defensive psychiatry” and the pressure to hospitalize persons who talk of suicide [Intueri]

  • Among the many other reasons not to admire RFK Jr., there’s his wind-farm hypocrisy [Mac Johnson, Energy Tribune]

  • “Screed-O-Matic” simulates nastygrams dashed off by busy Hollywood lawyer Martin Singer [Portfolio]

  • “Liability, health issues” cited as Carmel, Ind. officials plan to eject companion dogs from special-needs program, though no parents have complained [Indpls. Star; similar 1999 story from Ohio]

  • First glimmerings of Sen. John Edwards’s national ambitions [five years ago on Overlawyered]
(Edited Tues. a.m. to cut an entry which was inadvertently repeated after appearing in an earlier roundup)

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I know we’re supposed to give prominent Religious Right figure Chuck Colson a pass because of his compelling life story and the work he’s done with prisoners, but jeepers, does he ever give a misleading account of the Miller-Jenkins case (Vermont-Virginia lesbian custody battle), discussed earlier in this space Aug. 15, 2004, Dec. 16, 2004, Aug. 26, 2006, and Nov. 29, 2006.

Colson begins his column (“Legal Fictions”, syndicated/TownHall, Feb. 28) by announcing that Miller-Jenkins presents “one of the most important legal battles of our time”. In fact, as I noted back in 2004, the case presents the somewhat less epochal issue: can a party dissatisfied with a visitation/custody outcome litigated in one state ignore a resulting court order in order to pursue proceedings in what is expected to be a more favorable state?

Colson cites a recent in-depth story about the case in the Washington Post Magazine (April Witt, “About Isabella”, Feb. 2). Somehow, however, he omits to mention a feature of the case that figured centrally in that account, namely the outstanding court order that Lisa Miller, biological and custodial mom of Isabella, has been defying for years now. Since Colson does not mention that court order, he naturally does not inform readers that it arose after Miller voluntarily submitted to the jurisdiction of a Vermont court dissolving her civil union with Janet Jenkins. Nor do his readers learn that Miller was happy to pocket child support payments from Jenkins, before eventually deciding to blow off the court order, or try to, by cutting off Jenkins’ regular visitations with Isabella.

Nor does Colson describe the current posture of the case. If he did, he would have to acknowledge that both the Vermont Supreme Court and a Virginia appeals panel have ruled unanimously against Miller, who nonetheless continues to defy the court order. There is no indication that Miller’s team of Religious Right litigators is uncomfortable with this posture of hers.

Colson frames the story for dramatic effect as one in which Jenkins, appearing from out of the past, demands custody of Isabella — although the dispute in fact arose over visitation, and although the likely outcome of the case (assuming Miller relents rather than pursuing her contempt of court all the way into a jail cell) is simply going to be the restoration of Jenkins’ visitation rights. Pricelessly, Colson dismisses Jenkins’ legal rights as those of “a woman [Isabella] barely remembers”, without inquiring as to how Miller managed to engineer this state of affairs.

And, no surprise, Colson also fails to mention the relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, which as Eugene Volokh points out “requires courts [in other states] to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage”.

Probably the most enduring significance of the Miller-Jenkins case will be as an indication of the willingness of many on the Religious Right, even the lawyers among them, to applaud and defend the defiance of court orders when those orders inconvenience the godly or uphold the legal rights of the ungodly. I wonder whether Colson gives a thought to this when he decries, in the column, “our reckless pursuit of getting whatever we want at all costs”.

I also wonder whether the proposition that it’s just fine to violate laws and court orders when one feels impelled by a higher cause — I believe some social conservatives like to label this point of view as antinomian — is a message that Colson is accustomed to spread when he addresses groups of prisoners in the course of his public work. If so, we can only hope the prisoners don’t take the message to heart (& welcome Ed Brayton,, Eugene Volokh readers).


The Vermont Supreme Court has rejected (opinion, Miller-Jenkins v. Miller-Jenkins, Aug. 4) a Virginia court’s attempt to invalidate a pre-existing Vermont order giving Janet Miller-Jenkins rights to visit the child that she and former partner Lisa Miller-Jenkins raised before their breakup. Eugene Volokh (Aug. 4, see also second post of that date) explains why the Virginia court is on shaky ground:

First, despite how Lisa’s lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren’t married. The relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to “enforce according to its terms” out-of-state custody orders if, among other things:

(1) [the original] court has jurisdiction under the law of [the court's] State; and
(2) … (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

And if this provision protects the original Vermont judgment (which I think it does), then the later Virginia judgment is invalid (see subdivision (g), “A court of a State [here, Virginia] shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State [here, Vermont] where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination”).

Volokh rejects the position — advanced by some readers in the comments thread — that the federal Defense of Marriage Act should be construed as overriding the PKPA in this case. It is rather remarkable how many social-conservative commentators fail even to mention the PKPA in discussing the dispute. Earlier coverage of the case: Aug. 15 and Dec. 16, 2004.