UCLA Law Review Volume 56, Issue 4

Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations

In many states, sexual misconduct regulations categorically prohibit various healthcare professionals from having sexual contact with current patients and with former patients for years after the end of therapy. In many instances, these categorical bans reach conduct that gives no cause for concern: fewer harms are risked by sex between an optician and a former client, for instance, than are risked by sex between a psychologist and a former patient. This Comment identifies precisely what are the harms we should worry about in these types of healthcare professions, and explains why these harms don’t apply equally in all professions or cases. It then proposes a model code standard that addresses the identified harms while permitting harmless relationships. The existence of a standard alternative to a categorical ban is important because the United States and many state constitutions recognize rights of sexual autonomy that are significantly burdened by categorical bans. This Comment argues that many current regulations are unconstitutional largely because the alternative would do just as well at preventing the harms risked by sexual relationships. This is extremely important for healthcare professionals who wish to engage in harmless relationships, however few and far between. States must provide more substantial justification for categorical bans that appear to negatively affect only a few unlucky citizens if those citizens are supported by constitutional rights.

Normative Methods for Lawyers

Normative arguments are crucial for the rule of law, and lawyers need to know how to make and defend claims of morality and justice. In recent years, however, cost-benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare, which can be best accomplished by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results for which the social benefits outweigh their social costs. Such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that framework. Such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims, and the methods they use should be of interest to moral and political theorists. This Article explains four basic tasks of normative argumentation and outlines several ways lawyers accomplish these tasks. Highlighting these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.

“Which Is To Be Master,” The Judiciary or the Legislature? When Statutory Directives Violate Separation Of Powers

Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation. Legislatures are constitutionally empowered to draft statutes. In doing so, legislatures expect to control the meaning of the words they choose. Moreover, they prefer to do so early in the process, not after a judge has interpreted the statute in a way they did not expect or intend. Judges are constitutionally empowered to interpret statutes without legislative micromanagement. The question, then, is how to balance these valid, but competing, constitutional roles. This Article explores when statutory directives disrupt this balance and violate separation of powers. The Article concludes that when the legislature tries to control the process of interpretation, as opposed to trying to influence the outcome of interpretation to promote specific policy objectives, the legislature aggrandizes itself, oversteps constitutional boundaries, impermissibly intrudes into the judicial sphere, and becomes master of the interpretive process.

A Constitutional Birthright: The State, Parentage, and the Rights Of Newborn Persons

State parentage laws, dictating who a newborn child’s first legal parents will be, have been the subject of constitutional challenges in several U.S. Supreme Court and many lower court decisions. All of those decisions, however, have focused on constitutional rights of adults (especially unwed biological fathers) who wish to become, or to avoid becoming, legal parents. Neither courts nor legal scholars have considered whether the children have any constitutional rights that constrain legislatures and courts in deciding which adults will be their legal parents. If a state enacted a parentage law that said, for example, that any child born to a birth mother who already had two children would be placed in a parent-child relationship at birth with applicants for adoption rather than with the birth mother, would that infringe on any constitutional right of the child? Or would the birth mother be the only person with standing to challenge the law? Such a law would be purely hypothetical in the U.S. (though not far from reality in some other parts of the world). But the actual current parentage laws in the United States, which confer legal parent status in almost all instances on biological parents, with no regard for fitness, also have a seriously adverse affect on a subset of children—specifically, children whose birth parents are manifestly unfit to raise children, as evidenced by serious child maltreatment histories, criminal records, substance abuse, mental illness, and/or imprisonment. This Article is the first to consider whether states violate a constitutional right of some children when their parentage laws consign the children to legal relationships with, and into the custody of, adults whom the state knows to be unfit. It identifies opportunities for children’s advocates to advance constitutional challenges to state parentage laws as applied to newborn offspring of adults unfit to parent, and it presents a robust legal theory to underwrite such challenges.