Judging Mothers

A mother’s choice about whether to breast feed or bottle feed her infant may seem like a purely personal decision. In fact, for decades it has been an individual decision with wide-reaching social, economic and political ramifications. Issues have ranged from the economic interests of large baby formula manufacturers to the introduction of formula in developing countries where there are problems with its safe use to medical advice suggesting that breast milk is superior for babies and social disapproval of women who either don’t nurse their babies or who stop nursing before the recommended one-year mark.

In an opinion piece in today’s New York Times, author Alissa Quart discusses the fact that less than 50% of American babies are breast-fed for at least six months, despite a medical culture that sometimes portrays formula as “evil” and a competitive mothering society where women ask each other “How long did you go?” Quart opines that this is understandable, given the time-consuming nature of breast-feeding, and the demands of many women’s workplaces which offer little or no maternity leave, little on-site daycare, and not enough flexibility to allow women to either structure their hours to allow nursing, or to pump milk while at work for later use by a caregiver. She argues that this breast-feeding obsession is part of a social phenomenon that seeks to eliminate all risks to children, and that we need to allow women to make individual decisions without subjecting them to guilt trips.

In The Conflict: How Motherhood Undermines the Status of Women (newly released in an English edition), French sociologist Elisabeth Badinter argues that the aggressive push for breast-feeding engineered by doctors, governments, and private groups such as the international La Leche League, is a significant part of a larger social agenda to demand perfection in parenting and especially in mothering. This has huge social and economic ramifications, according to Badinter, because seeking mothering perfection along these lines precludes women from equal competition in many professions, and leaves them at a permanent economic disadvantage in the workplace.

So what relevance do these discussions have for a legal blog?

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Miller’s Unanswered Questions and the Future of the Eighth Amendment

Since it was handed down late last month, the Supreme Court’s decision in Miller v. Alabama has deservedly received much attention from lawyers and nonlawyers alike.  The Court held, on Eighth Amendment grounds, that juveniles may not be sentenced to mandatory terms of life imprisonment without parole; “JLWOP” can only be imposed by a judge who has discretion to consider the juvenile’s “youth and attendant circumstances.”  (20)  Miller thus nicely complements the Court’s 2010 decision in Graham v. Florida, in which the Court banned JLWOP for all offenses less severe than homicide.  In Miller, the Court preserved JLWOP as a sentencing option in homicide cases, but only if certain procedural requirements are satisfied, that is, only if the sentencing judge considers “youth and attendant circumstances.”

Like Graham, Miller breaks down a doctrinal barrier between capital punishment and the lesser sentence of life without parole.  In Graham, for the first time in a noncapital case, the Court used the methodology it had developed for determining whether the death penalty could be applied to particular categories of offenders, such as juveniles and the mentally retarded.  Before Graham, it seemed as if there were no meaningful substantive limitations on noncapital sentences.  Similarly, before Miller, there was a well-developed body of Eighth Amendment doctrine regarding the sentencing procedures that had to be followed in capital cases, but no corresponding doctrine for noncapital cases.  Miller suggests that the procedural rules may now be migrating, along with the substantive limitations, into LWOP cases and perhaps beyond.

Graham and Miller may lay the foundation for a revolution in the constitutional law of sentencing.  Or maybe not.  It’s too early to say for sure.  Perhaps this Court just has a soft spot for kids (see, for instance, last term’s decision in J.D.B. v. North Carolina.)

In any event, as the revolution or non-revolution plays out, we are likely to see the courts wrestling with many interesting questions raised by Miller.  I’ll highlight a few in the remainder of this post.

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State v. Stevens: Reaffirming Blum on No Precedential Value of Overruled Court of Appeals Cases – With a Caveat

Precedent and authority are concepts with which students become familiar early in law school and grow to appreciate even more in practice. Law students learn to look to details such as jurisdiction, court hierarchy, status of a decision as published or unpublished, dates of decisions, and subsequent treatment and build on these foundations to evaluate precedential value and weight of authority. Students and legal researchers in Wisconsin had to rethink some of what had been considered established principles regarding precedent after the Wisconsin Supreme Court announced in Blum that court of appeals decisions that it overruled retained no precedential value absent an express statement that portions of a decision were left intact. Today, the court in State v. Stevens reaffirmed the holding in Blum, but did so with the caveat that courts may have to determine whether an opinion was really intended to overrule all of a decision or only a portion thereof when applying the rule retroactively.

In Blum v. 1st Auto Casualty & Insurance Co., 2010 WI 78, 326 Wis. 2d 729, 786 N.W.2d 78, a decision issued two years ago tomorrow, the Wisconsin Supreme Court held “that when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.”¶ 42. The court discussed several public policy and practical considerations that it deemed would be served by this “bright-line rule nullifying the precedential value of an overruled court of appeals decision.” ¶ 51. The court viewed the rule as one that would help eliminate confusion that had grown regarding precedential value of reversed and overruled opinions and that “clarifies the law for the public as a whole.” ¶ 55.

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