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It is fitting to include an essay defending the application of empirical research to family law and policy in a symposium honoring the scholarly career of Peg Brinig, who is probably the leading empiricist working in family law. While such a defense might seem unnecessary, given the expanding role of behavioral, social, and biological research in shaping the regulation of children and families, prominent scholars recently have raised concerns about the trend toward reliance on empirical science in this field. A part of the criticism is directed at the quality of the science itself and at the lack of sophistication of legal actors, who may be unable to evaluate research adequately or to understand the limits for particular legal purposes of even well-designed and well-executed studies. For example, decisionmakers increasingly use algorithms that critics argue incorporate questionable factors. Also, researchers themselves may have biases that shape outcomes. And one study, or a handful, is a thin reed on which to base any policy. But skeptics also challenge family law's turn to empiricism on more fundamental grounds, arguing that emphasis on empirical knowledge may obscure important value competitions in family law or have undue influence on how different values are prioritized. Ultimately, critics raise the concern that the use of empirical knowledge can reinforce bias and harm marginalized families and communities. This Essay acknowledges these problems but suggests that most concerns can be alleviated by more careful and sophisticated use of science. The application of science to questions of family and juvenile law is a relatively recent phenomenon. Legal actors have already become skillful in the use of this tool, and interdisciplinary teams of legal scholars and researchers have played a key role in the design of research and translation of empirical knowledge to law. This trend holds extraordinary promise as a means to inform regulation in ways that enhance individual and social welfare. The Essay highlights issues on which the introduction of scientific knowledge has resulted in beneficial reforms. First, twenty-first century juvenile justice regulation increasingly has been shaped by developmental science clarifying that teenage offenders differ in important ways from adult counterparts. Second, policies supporting family preservation and healthy child development have gained support from a large body of research on child development as well as programmatic studies. These examples provide lessons for the use of research in this domain. Finally, the Essay probes the foundational critique of empiricism in family law and argues that the threat may be less severe than critics fear. To be sure, values shape family law and policy, and competing values often cannot be prioritized solely (or even largely) on the basis of empirical knowledge. But values often have empirical content, and accuracy in evaluating the stakes of the value contests is important. Moreover, the evidence does not support the concern that answers offered by empirical studies will be given undue weight in values competitions. The likely alternative – reliance on conventional wisdom and assumptions about the world – is usually inferior as a basis of policy and possibly more likely to result in biased calculations harmful to marginalized families.

This comment praises the report from the AFCC Think Tank on Research, Policy, Practice, and Shared Parenting for its support for separating parents' active role in custody planning, its emphasis on both parents' involvement in postdissolution parenting when cooperation is possible and also its recognition of the destructive impact on children of interparental conflict. The comment also commends the report's highlighting the importance of social science research in informing policy in the area, while recognizing that research has little utility in resolving individual cases and is often subject to misuse both in courts and in the policy arena. My primary criticism of the report is its endorsement of the best interest of the child standard as the basis of individualized decisions by judges when parents fail to agree on custody plans. I argue that the application of the best interest standard is in tension with the goals and values of the report, promoting conflict between parents by inviting them to offer evidence of each other's deficiencies, undermining their future cooperation, and encouraging judges to rely inappropriately on mental health professionals who have little expertise to offer in this setting. Instead, I argue that the American Law Institute's (ALI) approximation standard, which allocates parents' future time sharing on the basis of their past roles, is more compatible with the report's goals. The ALI standard promotes parental involvement and cooperation, reduces conflict, and deters the inappropriate use of expert testimony and of weak social science research evidence.
Key Points for the Family Court Community:
Parental cooperation and shared involvement in parenting postdissolution promotes children's welfare.
Parental planning and decision making about their children's custody usually furthers this goal.
For parents who cannot agree on custody, the application of the best interest of the child standard is likely to undermine future cooperation.
The American Law Institute's approximation standard is more likely than the best interest standard to further the goals of the Think Tank report.

This essay explores the importance for Eighth Amendment jurisprudence and for juvenile crime regulation of Miller v. Alabama (2012) and two earlier Supreme Court opinions rejecting harsh sentences for juveniles. It argues that the Court has broken new ground in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing that the Court has embraced a developmental model of youth crime regulation and elevated this approach to one that is grounded in constitutional values and principles. This approach represents a forceful repudiation of the punitive law reforms of the late twentieth century, when the relevance of adolescents' developmental immaturity to justice policy was either ignored or rejected. The opinions offer four key lessons for lawmakers. The first is that juvenile offenders are different from and less culpable than adults and should usually be subject to more lenient criminal sanctions. The second lesson is that decisions to subject juveniles to adult prosecution and punishment should be "unusual" and individualized – made by a judge in a transfer hearing and not through categorical legislative waiver. The third lesson is that sanctions should focus on maximizing young offenders' potential for reform. The final lesson is that developmental science can guide and inform juvenile crime regulation in useful ways. These four lessons, formulated by our preeminent legal institution and embodying constitutional values, are likely to have a profound influence on the future direction of youth crime regulation.

This essay explores the importance of Miller and two earlier Supreme Court opinions rejecting harsh sentences for juveniles for Eighth Amendment jurisprudence and for juvenile crime regulation. It argues that the Court has broken new ground with these opinions in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing that the Court has embraced a developmental model of youth crime regulation and elevated this approach to one that is grounded in constitutional values and principles. This approach represents a forceful repudiation of the punitive law reforms of the late 20th century, when the relevance of adolescents' developmental immaturity to justice policy was either ignored or rejected. The opinions offer four key lessons for lawmakers. The first is that juvenile offenders are different from and less culpable than adults and should usually be subject to more lenient criminal sanctions. The second lesson is that decisions to subject juveniles to adult prosecution and punishment should be "unusual" and individualized – made by a judge in a transfer hearing and not by categorical legislative waiver. The third lesson is that sanctions should focus on maximizing young offenders' potential for reform and the fourth is that developmental science can guide and inform juvenile crime regulation in useful ways. These four lessons, formulated by our preeminent legal institution and embodying constitutional values, are likely to have a profound influence on the future direction of youth crime regulation.

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor. This mundane story of the legislative process in action stands in sharp contrast to the political tale of surrogacy that unfolded in the 1980s and early 1990s as the Baby M case left its mark on American law. It was through the lens of Baby M that this innovative use of reproductive technology was first scrutinized as an issue of social, political, and legal interest. Over the course of the litigation between the intended parents, William and Elizabeth Stern, and the surrogate mother, Mary Beth Whitehead, hostility toward commercial surrogacy arrangements hardened. Opponents of surrogacy – mostly feminists and religious groups – argued that the contracts were baby-selling arrangements that exploited poor women who either were coerced or did not understand the consequences of their decisions. Opponents argued that surrogacy degraded the female reproductive function and undermined the family. This framing of the transaction as illegitimate commodification was adopted by the New Jersey Supreme Court in Baby M and prevailed for several years thereafter, with far-reaching effects on legal regulation. By the early 1990s, many states had enacted laws prohibiting or severely restricting surrogacy agreements. Some observers predicted the end of this particular use of reproductive technology. But that did not happen. In fact, the politics and social meaning of surrogacy arrangements have slowly changed, and the alarm and hostility that surrounded this issue have diminished substantially. An alternative frame has emerged, in which altruistic surrogates (contractually bound and compensated nonetheless) provide the "gift of life" to deserving couples who otherwise would be unable to have children. News stories about surrogacy arrangements in the past decade have tended to be upbeat, human-interest tales describing warm relationships between surrogates and the couples for whom they bear children – a far cry from the acrimonious battle between Ms. Whitehead and the Sterns over Baby M. The political and judicial response to surrogacy has also changed in recent years. In Illinois and other states, the contemporary legislative approach has been largely pragmatic, driven by a perception that parties will continue to enter these agreements and thus, that it is important to have procedures that establish parental status in intended parents."° In the absence of statutory authority, several courts, including the California Supreme Court, have also enforced gestational-surrogacy contracts and have held that the intended parents can be named on the birth certificate." Although social conservatives continue to speak out against surrogacy in the political arena,1 2 most contemporary groups interested in this issue advocate in favor of laws enforcing the arrangements."

Section I being the introduction, this essay proceeds as follows. Section II offers a historical account of the legal and social issues surrounding surrogacy over the past twenty years. These issues present the puzzle that the rest of the article seeks to resolve. Section III examines how surrogacy was framed as commodification in the Baby M context. Although opponents of surrogacy had legitimate concerns about unfamiliar uses of reproductive technology, the political and legal responses to this case were to a considerable extent a combination of moral panic and interest-group politics. The vivid drama of Baby M came to symbolize the pernicious threat that commercialization of reproductive technology posed to conventional understandings of the family and of motherhood. Opinion leaders, primarily religious groups and feminists, reinforced the moral panic and formed an unlikely but effective coalition that persisted for several years. Of particular interest is the role of feminists in the political arena and why they ultimately unified in a stance favoring legal prohibition of surrogacy that was in tension with other feminist views about reproductive agency. In section IV, I seek to explain how and why the social and political meanings of surrogacy have changed over the past decade. Several factors have been important: The moral panic has dissipated, as many of the predicted harms have not been realized. Further, advances in IVF have expanded the use of gestational surrogacy, which, because the surrogate is not genetically related to the baby, was less readily framed as commodification and thus was more palatable than traditional surrogacy. Finally, the interest-group dynamic has changed: women's groups have withdrawn their engagement with the issue, perhaps because their arguments against surrogacy were increasingly adopted by anti-abortion advocates. These conditions have contributed to a political climate in which lawmakers have adopted a pragmatic approach, authorizing surrogacy arrangements while seeking to minimize potential tangible harms. In a liberal society, this stance seems like the correct governmental response to a social practice that some continue to view with concern but about which no consensus exists.

This essay examines the changing social and political meaning of surrogacy contracts over the twenty years since this issue first attracted public attention in the context of the Baby M case in the 1980s. In the protracted course of the Baby M litigation, surrogacy was effectively framed as illegitimate commodification - baby selling and the exploitation of women. This framing can be attributed to a moral panic generated by the media, politicians and a coalition of interest groups opposing surrogacy - primarily feminists and religious conservatives. The framing of surrogacy as commodification had far reaching effects on legal regulation. In the post-Baby M period, lawmakers in many states moved to prohibit or severely restrict surrogacy arrangements. In recent years, however, the framing of surrogacy as commodification has been replaced to a large extent by a more benign characterization which emphasizes the useful service provided by surrogates to childless couples. Further, over the past decade, regulators increasingly have focused on the goal of reducing uncertainty and providing procedures to efficiently establish the parental status of intended parents. This essay seeks to explain these changes. Several factors have been important: First, hostility to surrogacy has declined because the moral panic has dissipated as many of the predicted harms have not been realized. Further, advances in in vitro fertilization (IVF) have expanded the use of gestational surrogacy, which is less readily framed as commodification and thus, more palatable than traditional surrogacy. Finally, the interest group dynamic has changed: Women's groups have withdrawn, plausibly because the kinds of arguments made against surrogacy increasingly were adopted by anti-abortion advocates. These conditions have contributed to a political climate in which lawmakers have adopted a pragmatic approach, regulating with a goal of minimizing the social cost of surrogacy.

Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans, the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women's social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that, for the most part, lasted for the joint lives of the spouses. It was the only option for a socially sanctioned intimate relationship and was the setting in which most children were raised. Today, when about 40 percent of marriages end in divorce, marriage is a less stable relationship than it once was. It is also less popular; many couples choose to live in informal unions instead of marriage, and many children are raised by unmarried mothers, other family members, or by unmarried heterosexual or gay couples. These changes pose a challenge to foundational policies of family law. Formal marriage is a privileged legal status that receives substantial government protection and benefits, and is also defined by many legally enforceable rights and obligations between the spouses. In a world in which marriage no longer functions as well as it once did to provide care for children and to serve other family dependency needs, it is quite appropriate to ask whether the special legal status of marriage can be justified any longer. In this Article, I offer a modest defense of the privileged legal status of formal marriage (as I will define this union) and of neutrality toward informal intimate unions. My claim is that the special treatment of marriage can be justified, even if one has no nostalgic fondness for traditional family roles and rejects the moral superiority of marriage over other family forms. Through marriage, the government can delegate to the family some of society's collective responsibility for dependency. Retaining the privileged legal status of marriage in a contemporary setting can (and should) constitute part of a comprehensive policy of family support that acknowledges the pluralism of modem families.

Are children harmed when their parents divorce? If so, should parents' freedom to end marriage be restricted? These questions have generated uncertainty and controversy in the decades since legal restraints on divorce have been lifted. During the 1970s and 80s, the traditional conviction that parents should stay together "for the sake of the children" was supplanted by a view that children are usually better off if their unhappy parents divorce. By this account, divorcing parents should simply try to accomplish the change in status with as little disruption to their children's lives as possible. This stance has been challenged sharply by conservative family-values advocates who see divorce and marital instability as the key to societal decline. In their view, children whose parents divorce are damaged in their moral, social, and emotional development, and society ultimately pays a high price through increased teen pregnancy, school drop-outs, poverty, and delinquency. These advocates argue that marriage can only be saved if the government restricts divorce by reinstituting fault grounds and discouraging unhappy spouses from selfishly defecting from their responsibilities. In contrast, liberals and some feminists oppose any restrictions on the freedom of unhappy spouses to divorce, in part because they suspect (correctly for the most part) that the ultimate agenda for many conservatives is a return to the era of traditional marriage and gender roles. Liberals tend to discount concerns about the harm to children of divorce and assume that parents only end marriages that are intolerable.

This paper examines the influence of legal regulation on the social norms that shape marital behavior, focusing particularly on the interaction between legal reform and norm change in the past generation. Two categories of norms governed the spousal and parental roles in traditional marriage – commitment norms and gender norms. In regulating the spousal relationship, commitment norms functioned to promote cooperation and to allow the parties to make credible commitments, while gender norms encouraged spouses to subordinate the wife's interest to that of the husband. These norms, although analytically distinct, were intricately interwoven (or "bundled"), so that disaggregation became difficult. Together they were enforced through a multi-layer system, and ultimately amplified and defined by traditional family law. Over the past generation, spousal gender norms have been discredited and commitment norms have also declined. Legal reforms have contributed to both of these trends. In the case of gender norms, the legal impact has been part of a purposeful agenda to promote equality. In contrast, the impact of family law reforms on commitment norms has been largely inadvertent. Because the weakening of commitment norms has undermined marital stability, this seems like a promising opportunity for a legal corrective to reinforce desirable norms. However, recent legislative efforts to offer commitment options to couples entering marriage (such as covenant marriage statutes) have generated considerable controversy. This response suggests the uncertainty that surrounds norm management initiatives by law makers, seeking to influence this complex relationship. I argue that legal initiatives may have unpredictable effects on marital norms, partly because of the residual effects of norm bundling in traditional marriage, and partly because of a tendency to disguise private preferences on matters of public controversy.

Two features of the legal regulation of childhood seem troublesome, but ultimately contribute to sensible policies in most contexts. First, the boundary between childhood and adulthood varies in different policy domains, through a regime of age grading under which elementary school students are deemed adults for some legal purposes, while, for other purposes, college students are children. Second, the transitional stage of adolescence is virtually invisible, because, for most purposes, law makers employ binary categories, classifying adolescents as either children or as adults. This framework – a series of legislative bright line rules, arrayed around a presumptive age of majority – generally promotes social welfare as well as the interests of youth. Although this approach sometimes distorts developmental reality, it accomplishes the transition from legal childhood to adulthood over time without incurring the costs associated with the creation of intermediate legal category. Indeed, the unsuccessful experience with abortion regulation (in which adolescents occupy a special category) confirms the benefits of binary classification. In the context of juvenile justice policy, however, categorical assumptions that ignore the developmental stage of adolescence have harmful outcomes. In responding to youth crime, law makers have shifted the boundary of childhood dramatically during the 20th century. The Progressive architects of the traditional juvenile court described delinquent youths as innocent children, and constructed policies that presumed that the state's sole purpose was to promote their welfare. Contemporary conservatives, in contrast, assume that young offenders are indistinguishable from adult criminals, and argue that public protection demands that they be subject to the same punishment. I argue that both of these accounts represent distortions and have been the basis of unsatisfactory policies – even in terms of the professed objectives of their adherents. A justice policy that treats adolescence as a distinct legal category not only will promote youth welfare, but will also advance the utilitarian objectives of reducing the costs of youth crime.

In November 1998, the interdisciplinary Center for Children, families and the Law at the University of Virginia sponsored a conference on Youth Violence and Juvenile Justice Reform. The conference brought together an extraordinary group of experts from the academic disciplines of law, criminology and psychology. Before an audience made up of researchers, students, policymakers, and practitioners in the field of juvenile justice, these experts analyzed legal policy toward juvenile crime from a variety of disciplinary and methodological perspectives. The articles in this important symposium issue of the Virginia Journal of Social Policy & the Law are based on the papers and comments that were presented at the conference. Thoughtful academic voices can contribute a great deal to a policy debate that has been the focus of intense media and legislative interest around the country in the 1990s. Indeed, it is fair to say that no other set of legal policy issues involving children is subject to greater debate and controversy than that of how to respond to youth crime – particularly violent youth crime. Often the discussion is shrill and not very informed, as first the media and then politicians respond to tragic cases of children killing children. The empirical and normative issues are complex, and satisfactory long-term solutions are not obvious. It makes sense for researchers and scholars who study juvenile crime to play a more prominent role in formulating juvenile justice policy.

Few people believe that five year olds and fifteen year olds think, act or make decisions in the same way. The question is whether and how the law should respond to developmental differences. Traditionally, childhood and adulthood have been two dichotomous legal categories, demarcated by the age of majority. This conception has been contested in recent years, as has the premise that all minors are incompetent to make decisions and function as legal actors. Fueled by the controversy over adolescent access to abortion, an advocacy movement has emerged that challenges the authority of parents and the state over the lives of young people. For some advocates, the claims of adolescents to self-determination are a natural extension of the liberal ideology that forcefully emerged in the civil rights movement of the 1960s. Although this "children's rights" movement is driven by politics and ideology, the case for changing the legal status of minors rests in large part on empirical grounds; indeed, many leading proponents are psychologists. From the start, critics of traditional policies have turned to child development theory and research to support arguments that children, particularly adolescents, should be given greater legal autonomy. Paternalistic legal treatment is based on the presumption that minors, due to their immaturity, are incompetent to make their own choices. This premise, advocates argue, has now been discredited by social science research and theory that demonstrate that by age fourteen adolescents are indistinguishable from adults in their decisionmaking competence. This evidence, it is said, seriously undermines the justification for different legal treatment.

The undisputed objective of sterilization law is to promote decisions that reflect the interests of the disabled person. The autonomy model proposed in this article offers a more accurate and precise definition of these interests than does the paternalism model that forms the foundation of current law. The paternalism model limits the mentally disabled person's freedom through the erection of formidable barriers to sterilization. These barriers are justified by a strong presumption that the individual has a pervasive interest, not in autonomy, but in procreation. By clarifying the substantive interest in procreation as an interest in producing a child to rear, the autonomy model promotes a direct examination of whether the person in fact has this interest. If the person cannot rear a child, she lacks this interest and the law should take into account those interests that she retains. These residual interests include interests in optimal medical decisions, in human dignity and privacy, and in family stability. The desire to correct the abuses of the past is admirable. We should only take care that in pursuing this goal, we do not create a new set of problems for the future. In contrast to current law, the autonomy model accords substantial deference to personal and family autonomy. The model reveals that the law's objectives are best met by leaving the sterilization decision to the retarded person who is competent to make her own reproductive choices, with only as much intervention as is necessary to facilitate her decisions. For retarded persons who cannot make their own decisions, parents-not courts-are the best surrogates.