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A Conversation with Professor James Dwyer

James G. Dwyer, Hanson Professor of Law

By Ami Dodson

In an impressive number of books and articles, Professor James Dwyer has passionately and provocatively argued for a more child-centric legal regime, urging myriad and aggressive changes to the current parent-centric thinking about child rearing. His interest in children's rights originated in high school, when he began volunteering for recreation programs with disabled children. "I had the most wonderful experiences with the people in the programs," he recalls. "When I went to law school, I studied child advocacy. Even during three years of corporate practice, children's rights issues were in the back of my mind, and during my third year of practice I applied for philosophy Ph.D. programs, with the intention of studying political philosophy and applying it to child welfare issues."

In addition to his Yale Law degree, Dwyer earned a Ph.D. in Philosophy from Stanford. Dwyer says his background in philosophy enables him "to analyze legal issues relating to children at a level of high theory ... [by] looking closely at basic concepts like rights and duties, applying general moral philosophies in new ways to child welfare topics, and rigorously challenging the most basic assumptions of law and morality in relation to child rearing."

Before joining the legal academy, Dwyer worked as a Law Guardian representing children in New York State Family Court. The experience gave him a "realistic sense of how judges, attorneys, agency employees, and parents operate in family law cases, as well as the home lives of troubled or maltreated children."

Dwyer's first academic projects explored the potential for harm in religious schools unregulated by the state. He believed that those schools presented excellent tests for the strength of claims about parents' rights, children's rights, and state interests in child rearing. "My own experiences in Catholic schools became the topical focus for a general examination of rights-claims in connection with state regulation of parenting. The dissertation became my first book."

That research lead to a consideration of child maltreatment in other settings. "This area has been under-theorized, and perceiving that much of the thinking on the topic was quite muddled, I determined that cogent arguments could be made for viewing it in a different way," Dwyer says, "one that allows for some novel solutions with greater promise of success than current approaches."

For example, in "A Constitutional Birthright: The State, Parentage, and the Rights of Newborn Persons," (U.C.L.A. Law Review 2009), Dwyer challenges the blanket legal presumption that biological parents will provide the best care for their children. "Parentage laws in the United States, which confer legal parent status in almost all instances on biological parents, with no regard for fitness, have a seriously adverse effect 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," he says. Dwyer asserts that 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." (Click here to read an excerpt.)

Dwyer's forthcoming article, "Zoning for Child Protection," focuses on the role neighborhood plays in child development and maltreatment. He contends "the state should zone some horrible residential areas 'no child zones' and remove children born into them. The legal system should require consideration of the community environment in which parents or potential parents live in any decision about children's lives. State legislatures should amend domestic relations and child protection laws to give explicit direction that neighborhood quality should be a factor in their decision-making." (Click here to read an excerpt.)

Dwyer's innovative solutions stem directly from his commitment to child-centered legal norms. "Many of my ideas have come from asking one simple question: Would we treat or talk about any group of adults the way we treat or talk about children in this context? Incompetent adults, in particular, present a very useful point of comparison on many issues; the rules governing their lives are much more respectful of their personhood and equal moral status than rules governing the lives of children."

William & Mary Law School colleague Neal Devins said Dwyer is truly a leader in his field. "Jim Dwyer has done what most academics aspire to--to change the conversation in their field. Jim's work on children's rights and his questioning of widely shared assumptions about parental authority have transformed the academic dialogue about the parent-child-state relationship."

Professor Vivian Hamilton also teaches Family Law at William & Mary. "Jim Dwyer exposes – and rejects – the adult-centered premises underlying much of family law and policy. He makes a convincing moral argument that society ought not place adults' interests above those of children. In an under-theorized field like family law, Jim's work is invaluable – he forces scholars and students alike to rethink our assumptions and to confront the systemic inequities that can result from them."

Dwyer believes the arc of family law in general is moving in his direction. Family law is "becoming more child-centered and protective in order to avoid the social costs of harm to children. A great example is the federal Adoption and Safe Families Act, which requires states to authorize termination of parental rights in some cases before a child has been maltreated, based on a parent's proven propensity to abuse children. Thus, it is now theoretically possible to protect a newborn child who is born to unfit parents from ever being abused, by immediately terminating the rights of a birth parent who has previously done horrible things to other children, thereby freeing the baby for adoption by fit parents. As a practical matter, that is not much different from my proposal that states disqualify demonstrably unfit birth parents from ever becoming legal parents to a newborn child."

Dwyer's arguments are intentionally provocative. "In my writing and in the classroom I like to state novel positions starkly," he says. "Audiences react strongly but also intently. One positive effect is that I usually get barraged with interesting questions. A drawback, however, is that some people ignore the extensive theoretical analysis underlying such statements because they seem too outlandish."

Many critics of Dwyer's work hypothesized that his views would become more "parent-centric" once he had children of his own. But Dwyer says, "That never happened. Being a father of two girls has inspired some of my thinking about children's place in the family and in society and about children's rights. But my core values and beliefs have remained unchanged since the birth of my daughters."

The volume of Dwyer's scholarship reflects his passion and commitment. "The writing has always come easily for me," he says. "I usually have four or five ideas for new projects in mind. Child protection and the abolition of child maltreatment are vital but underserved topics and much more needs to be said about them." When asked to identify his favorite research project, Dwyer quipped, "The next one."

 

To read an excerpt from Professor Dwyer's book, The Superiority of Youth: Moral Status and How We Treat Children, (forthcoming from Cambridge University Press), please click here.