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Good afternoon and welcome to the Legal Oral History Project at the University of Pennsylvania. I'm Will Proctor and along with my classmates Kristen Smith, Eric Lieberman, Corinne Levy, Leanna Perez, Greg Garland, and Ria Montblanco, we will be interviewing Professor Barbara Woodhouse. Today is Thursday, February 22nd,

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and we're in the rare book, uh, room at the University of Pennsylvania Tenenbaum library. The, uh, the Uh, I'm Michael Wachter. I'm the direct, uh, co-director of the Institute for Law and Economics with Edward Rock. Are Eric Lieberman and Coin Levy and. Lea Pre and Rita.

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OK, so this is quite a Sort of large group enterprise sounds good. You can start Good afternoon, Professor Woodhouse. Thank you for joining us today. And speaking with my classmates, I've met very few students who dreamed of being lawyers from a young age. When you were

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a child, did you have any idea you would one day have a career in the law, or did other careers and visions of the future capture your imagination? As a child, I never ever imagined that I would have a career in the law. I had never

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met a female lawyer. I had never seen a female judge it just did not even cross my mind. That I would have a career in the law. In fact, I was uh very interested in the arts in music and dancing in literature in poetry and law

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was not something that. I could have aspired to. What were some of your activities in the arts when you were a child? I danced. I played the flute. I wrote poetry. I did paintings. I, you know, I did all kinds of things, and I think that

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as a, as a young child I. I absorbed this um concept this notion that boys did science and girls did uh did artistic things and so I was very active in artistic things and my brother is a scientist by the way. I noticed that several years

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before attending law school you spent time studying in Italy. Um, was it your experience in the arts that spurred you to go to Italy or was it something else? It was my, uh, experience in the arts. I wanted to uh study fine arts. I also wanted

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to learn to speak the language fluently and I was convinced I couldn't do that if I studied it in the United States. Can you tell us a little more about your experience there? Um, well, there was a lot of family issues involved with it and that

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I, I, when I arrived there I spoke no Italian. I only spoke English and at first I was very lonely until I found a family to live with with little children, and I realized I was much happier and more comfortable in a real down to earth

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working class family so my experience in Italy was a family experience with a 5 year old and a 9 year old and. Family meals and holiday celebrations and trips in cars where we all stuffed ourselves in until there was no room for anybody to breathe and

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it was really a lot of fun. That sounds very exciting. Um, did your experiences there reinforce, uh, some of the roles you learned about, uh, men and women, uh, that you learned in America growing up? You talked a little bit about men or women being involved

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in the arts. Yeah, I, it certainly didn't, uh, it certainly didn't challenge any of my preconceptions about what I would do with my life. You took about 10 years off after your initial academic studies in Italy, um, to raise a family. What then spurred you to

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obtain your bachelor's degree and attend law school? During the time that I was raising my family, I became involved in, uh, community activities and a number of different things including working with um special needs children and gifted children, uh, in the connection with the school board,

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um, and so that involvement in public. Activities persuaded me that uh first of all that I enjoyed that kind of. Uh, active role in the community and also I had the experience that people listened to lawyers so I came up with this idea that if I

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went to law school they would listen to me and to some degree that's been true but what I hadn't anticipated is that I would be surrounded by other lawyers so they would be listening to everybody but in any event that was part of what got me

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to go to law school um but uh another important factor was uh we adopted a child and so we had an experience a very positive experience with the law. And then we also had a foster child, the kinship, uh, foster child, and that raised, uh, that

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brought me into contact with lawyers who were working with children and children's issues. How was your experience, uh, working with the law with your adopted child different than your experience with your foster child? With the adopted child, everything was very um. It was an altogether happy

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event. Everything went well. He was a special needs child, but that certainly wasn't a problem with the foster child. It was clear that his coming to us was the second best solution and he had suffered a great deal, so I, you know, I had the experience

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of how little the law can do to actually heal the wounds of of someone who's had to suffer a great deal so that, you know, that was the sad part, you know, the dark side as it were of, of the law. Is there any specific story

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or memory or um event that you had with the law that really sticks out in your mind in terms of either your adopted child or um your foster child? Uh, yes, there's a funny story actually. Uh, we took our foster child to the lawyer's office because

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I always felt that it was important for for children to understand what was happening to them, and he was at that time about 11, and he asked the lawyer if he could change his name. And the lawyer said yes you know and and in fact produced

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a case showed us a case that that I now teach in my family law class that says that uh uh anyone can change their name as long as they're not doing it to be deceptive so he basically told this little boy yes you can change your

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name to anything you want and I uh came upon this child standing looking in the mirror and he never knew I saw him doing this and he was standing and looking in the mirror and he was going. Rock You know, Todd and trying on these names

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that clearly it was a chance for him to use the power of the law that he could rename himself and he could be a strong person who was not afraid and I found that it would be kind of touching and that was I'd say that was

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one of the experiences that made me think yes the law can have an influence uh. On people's lives in a very direct way. In addition to continuing your family obligations, you were quite an active student at Columbia. You were the Law Review Notes and common editor,

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the Harlan Fiske Stone scholar, the recipient of the David M. Berger International Law Prize, and a member of the Child Advocacy clinic. Would you say that any one of these experiences has had the longest lasting influence on your career and scholarship? Uh, I would say that

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the child advocacy clinic has been absolutely pivotal for me. It's, it's set the tone. It set the agenda for all of my scholarship and my and my work. And I was very lucky to be doing that and I'll also add that I was all of my

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um colleagues, my peers said you can't do both you can either do law review or the clinic you can't do both and I said watch me and and I think I was right and I have never regretted deciding that it was possible to do both. So

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whenever I get a chance I tell law students don't uh don't shy away from clinics do them in spite of the time commitment. That seems like an incredible, uh, commitment to do both. Um, how did you manage both of those, uh, projects and, uh, maintain a

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relationship with your family and commitment to your family? I didn't sleep a lot. I think that's probably the, the fairest answer. I would, I would come home and my son would read me to sleep. We, we switched roles. He would read me to sleep and I'd

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fall asleep at 8 o'clock at night and then I get up very early to do my, uh, 44 in the morning usually to do my reading, so I, I did. Stint on sleep and I was pretty organized. I mentioned you didn't get a, a lot of

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sleep working on your comment, um, and looking at your comment, I noticed that you talked about entering law school, um, with this interest in family law, and yet looking at your, uh, comment. Um, Powell v. Offshore Navigation Incorporated jurisdiction over maritime claims and the right to

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trial by jury seems like quite a departure from family law studies. What accounts for this anomaly? I worked as a research assistant after my first year for a marvelous, um, man. It was a professor of of admiralty law also practiced admiralty, and he was a very

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um. Quite a mentor. I, I really, uh, liked him a great deal, and I asked him for a suggestion for a law review comment, and that was what he suggested and I was and still am a civil procedure chunky and I loved doing the comment but

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when I recovered from this temporary madness and reread my comment and thought about how technical it was, I decided I would never write anything that boring again and I've tried hard not to do so. You talked about being a quote unquote civil procedure junkie um have

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you noticed any intersection between civil procedure and family law um. Absolutely in fact one of the fir the first amicus brief that I submitted to the Supreme Court was one of those briefs where everyone knows it because it's the baby Jessica adoption case Jessica De Boer

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case from. In 1994 it really revolved around the um uniform Child custody Jurisdiction Act and the Parental Kidnapping Prevention Act and all kinds of issues of jurisdiction and collateral estoppel and so on so it still comes in handy. Well, thank you very much. At this point

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in time, I'm gonna hand the interview over to Kristen Smith. Well, thank you. Following your graduation from law school, you took 2 quirkships. How has quirking affected your career? I thought I learned more in my clerkships, a bit more compressed learning, you know, steep learning curve

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than any other two years in my life, including my first year of law school, which most people think of as the year that you learn so much so quickly. Um, I think it's helped me in my teaching because my first clerkship was at the trial level

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so I can imagine and um. And think creatively about arguments to the trial court and to the jury and my second clerkship was at the Supreme Court and that and that's given me insights which are invaluable in terms of reading Supreme Court opinions, understanding how the

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justices think and how the process actually works. You quirked for, as you mentioned, two justices, um, Abraham Soar and Justice Sandra Day O'Connor, who are at different, um, ends of the political spectrum. So Pharaoh was a Democrat when you quirked for him and Sanra Day O'Connor

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is a conservative Republican. How did their political views influence their opinions? I think one of the things I learned from working with both of them uh was how. Almost irrelevant politics. Should be and and and really is in a in a in the chambers of a

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of a judge who's working with a real focus on the task at hand. Judge Sofa was appointed by Carter I believe. And he later on served in the in the um Reagan administration and uh became associated in many people's minds with being very conservative. That really

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wasn't true. He was an extremely proactive judge, very dynamic. And my main. My main project with Judge So fair was to, to kind of slow him down and say, you know, Judge, you're gonna be overruled by the Second Circuit, and he would say, Barbara, I don't

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care. The Supreme Court will vindicate me. So that was the, the kind of dialogue with him. Uh, with Justice O'Connor, she's a very, very careful, um, thoughtful jurist. She's a, a judicial conservative and thinks carefully about every case, and I just loved working with her because

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she had a great respect for the system and for the people who were working with her in that process. Um, Sandra Day O'Connor is, uh, when she was appointed, was the first woman on the Supreme Court and took on a lot of responsibility in that role.

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How did this affect the opinions you wrote for her and your interaction with her? Um, there were certain almost ceremonial things that she did, um, that I was fortunate to be part of, for example, she would invite all of the female judges from the, the Washington

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DC courts to the Supreme Court for lunch once a year, and we would be part of that and famous women, um, both in the law and in other walks of life would come to visit her and she would introduce us to them so we, we had

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a bit of a. Sort of a front row seat on a lot of important interactions. In terms of her um approach to the process of judging. We had a, we actually had a conference here at Penn called Women in Judging where Justices O'Connor and Ginsburg were

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asked this question how did being a female affect your your role as a judge and they were very hesitant to say that it actually had any effect because I think they were concerned that that their identity as women might overshadow their competency as judges so I

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would be hesitant to say that uh Justice O'Connor judged a particular way because she was a woman. But certainly she had more. Uh, a greater knowledge base of certain areas um when we. When we looked at cases like TLO v New Jersey which involves searches of

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children in schools, the idea of children in schools was not an abstraction. She knew about kids and they've had things in their pockets and they could get into trouble and what should be the balance between their privacy and the the role of the school was not

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an abstraction and and I think in that sense, yes, being a wife and mother and. And homemaker is not has has it's, it's a learning experience and it can provide you with interesting. Insights In your time here at Penn as a professor, you have encouraged students

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to take clerkships. If you were trying to convince a student of the importance of clerkships, what would you say is the most important skill you learned from the experience? I think the most important skill is the ability to. Really imagine the case or the issues from

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the judge's perspective. After clerking, I, I, I, I'm positive that the way I approached both briefs that I wrote as a lawyer and also briefs at the appellate level was radically changed because I saw the task the judges were attempting to do and realized that what

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I needed to do the role of the lawyer is to help the judge decide and I don't think I would have fully understood that unless I worked as a clerk. So I think it really does give you an insight that's valuable throughout your life. After you

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finished your clerkships, you became an associate at Deba Boys and Plimpton, a large New York-based law firm. How did you end up there? I went to Del Boys in Plympton after my 2nd year in law school, so I was a summer associate there. Um When I

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finished my clerkships, I was being very heavily recruited by Cravath, Swain, and Moore. And uh Tom Barr and David Boys both told me they would and and please hold your laughter told me they would make me the first great woman litigator. I was not impressed because

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I happened to know Mary Jo White, who was at Deborah Voy and Plimpton, and it seemed to me we already had a very great woman litigator and I decided I would go and work with her. So it was actually Mary Jo White who is now the

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US attorney for the Southern District of New York and is in fact currently embroiled in a bit of a struggle with. Former President Clinton over the um the rich pardon, she was the person who who really brought me to Deborah Voy and Plimpton. Well, that Deboba

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voice, um, you were a litigation associate doing varied work. Was any of it family law related? Uh, very little of it was family law related. The family law, I did a lot of constitutional law related work, preemption work, uh, and the one thing that was most

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closely related to family law was, uh, class action that I did on behalf of residents of a homeless shelter, and there were a lot of intersections between, uh, well, homelessness and, and family disruption and issues of child abuse and neglect. they were all kind of. In

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there somewhere, so that was the closest I came. Um, when you left De Boys in 1988, you worked on many pro bono cases. Why did you make this transition? I found that as I went up the ladder of responsibility at the firm and I think I

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went up faster because I was older I started. At Deba Boys at age 40. So I was a 1st year, well, I was a 3rd year associate because I got credit for my clerkships, but I was a 3rd year associate at age 40, so I think

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they started me up faster and I was handling cases as the sort of supervising associate. And I found that the more I rose in the hierarchy. The farther I got away from actually researching and writing, which is what I most enjoyed, so I realized I was

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gonna have to make a choice, uh, either to really pursue actively a litigating uh career which I think would have taken me into the US attorneys or a scholarly career and I decided on on the academic career. Um, at this point you appeared to concentrate in

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family law. How did your interest in family law develop? Well, it, it developed, I would say after I got through 1st, 1st year of law school and started taking elective courses I found that the courses I was taking in family law were the ones that just

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captured my complete, uh, engagement, and I felt they were really important. I thought this is this is important. This is where the the most crucial issues are being decided it was. What really drew me so I took uh uh a basic family law course and I

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took a uh an advanced family law course in the child advocacy clinic and a divorce uh simulation clinic and by the time I had had finished those things, um, I developed quite an expertise in the area when I went on the teaching market I I said

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I would like to teach family law and that's what brought me to Penn because they were looking for a family law professor. Thank you. At this time I'm gonna turn you over to Eric Lieberman, OK. I think We're gonna stop the tape for a second. I

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feel like a little bit like we're in the US attorney's office and you know you didn't give me my Miranda warnings. Sorry, are you OK? Sure. I wonder if you could reach me that. I'm afraid if I get up I'm gonna dump the microphone on the

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ground. You're going down to University of Florida? Yes, I'm, I'm a gator. Are you a gator? I have got after I accepted that job, my family has been showering me with, I've got gator flag. I've got gator cups. I've got gator stuffed animals. Um, excuse me,

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yes, I am, yeah, I'm gonna be history, right? Oh, is that why? Um, I hope you like football. I will, I will learn. It's a great place to live. I'm very excited about it. It's, it's, it's a good opportunity for me and my work, and it's

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a beautiful place. Are you teaching family law there? Yeah, I've got a chair in family law and a center and all kinds of good things. Wow, yeah, it's better rather. I don't need a signal. Um, I think whatever the system it's. So, why did you decide

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to leave the practice of law and enter the academic world? Well, there were two things really. One is, uh, uh, the fact I just mentioned about um wanting to do more in depth research in the practice of law. The practice of law is fun, particularly as

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a litigator. I, I enjoyed that, but you are never able to really do the in depth work you would like to do on any given project. So I had found that a little bit frustrating, and I wanted to do that in depth work also, um, the,

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the work schedule was very inflexible. I think I work as hard, certainly more hours I think I really do work more hours now than I did then, but I can always get time when I need it for my family, and that made a huge difference to

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me. What attracted you to Penn and what other schools did you consider? Well, I had geographic limitations because I was married and I had children in school and uh so I looked at schools that were in a radius of New York City that I felt I

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could that we could manage you know to have a a home life and and a professional life and what attracted me specifically to Penn. was I think really was that they really wanted someone to teach family law. I was not trying to convince them, could they

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make room in the family law group for me. It was a real need here. And um And I think that really was what sort of. Cemented the bargain. I actually, I also, uh, it's funny and this is one of the factors about the, the. Recruitment process

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you don't have that much control over it. I had not sent any application to Harvard, but they found out I was out there and they invited me to come and and talk and you know be recruited. I went up there and I had. A horrible time

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they were the people were talking about how miserable they were. I actually had one young man say um. This would not be a good place for a young. Person with children because you, you know, you wouldn't be able to spend any time with your children and

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I thought. Well, I don't wanna be here, so I withdrew my name so I think you know it isn't only the, the prestige of the school, it's also the environment and the atmosphere and I certainly felt Penn was a much more friendly atmosphere. Did you have

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any preconceptions of what teaching law entailed? Well, I had been a law student, so I had seen other people in action, but I don't think I had ever quite um. Envisioned how many hats law professors wear. I saw my professors teaching and I read their writing.

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What I didn't understand was how many, how much time. Uh, it was going to how much time, how much time I would need to devote to a number of different arenas in order to to accomplish the work I wanted to accomplish. There is, you, you have

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to be a writer, you know, a scholar. A teacher A mentor An administrator and a public servant and I really had never imagined wearing all of those different hats. And that's in fact what I think is the biggest challenge. It's not to to sort of close

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yourself up in a box so you're not available in the ivory tower that is a real challenge. Did you find teaching more rewarding than practicing law? Yes, much more. I love teaching. I really do. Well, you do feel as if you have uh a real impact

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um in practicing law, particularly in litigation. Very frequently you don't know how things turn out, you know, it's, uh, you come up with second best solutions and in teaching you can uh create both in teaching students you can have a sense of, of actually contributing positively

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or negatively sometimes their reactions are negative, but you know you've had an impact in any event. Um, and then you have the ability to create a body of work so you can look back and see what you've accomplished and you've, you've completed it. It's not. Unfinished

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and I think that's the frustration of litigation so much of what you do is never really finished. What do you enjoy the most about teaching? Um, Well, I what I enjoy the most is when I can see the, uh, that a complicated issue or concept is,

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is just clicking, you know, you, so I guess what I enjoy the most is, is seeing that reflected in the eyes of the students and I think students. Often don't know that we that we can see their faces. It's like being in a dark theater, but

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it's not really we see your faces, we see your expressions, you know, we see you yawning we see you nodding your heads, we see you opening your eyes and uh and sometimes you see that shock of recognition and people really as if they're saying aha, I

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got it. I, I got it now maybe for the first time and that particularly in the area of constitutional law which can be very confusing. What were the first classes he taught at Penn? My first class was family law. The second class was conflict of laws

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and for years I taught conflicts. Nobody here knows that anymore, but I was the the conflicts professor for many years and the 3rd class, which was really the one that was closest to my heart that was most central to my ambitions was child parent and state

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and I continue to teach child parent and state. Which is about state intervention in the family and child abuse and neglect, and I continue to teach family law. What other classes do you teach now? I teach well I now have been teaching family law, uh, child

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parent and state, and then I'll usually teach a seminar and I, I, I am restless. I go from one thing to another. I've taught children's rights, Supreme Court and the family. An adoption seminar. I've taught the public interest practice seminar which is in some ways a

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forerunner of the current program that the uh public interest scholars and and others are doing with Lu Ruley and the clinical faculty. Um, and I'm currently teaching a fascinating seminar sponsored by the, the Carnegie Foundation, the Carnegie Institute for the Advancement of Teaching, which brings together

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social work students and law students to explore, um, how they have been educated as professionals and this I'm having a wonderful time with that course. You co-founded and co-direct the Center for Children's Policy Practice and Research at Penn. Could you describe how it operates in the

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multidisciplinary setting? Well, it's a, it's focus is multidisciplinary. We are a project of the law school, the medical school, the school of social work, and now the nursing school is also very much involved. Um, the concept is that in order to address difficult policy and practice

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and research issues of children in the law of children in generally, uh, you need to have a team of people who will bring their different professional expertise to the table, and that's what we do at whatever level uh we describe ourselves as vertically integrated or vertically

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structured meaning that we work with actual clients at the. Level that children who need evaluations, um, psychological evaluations or social work or legal interventions, and we also work at the appellate level with uh appellate briefs to the Supreme Court or the courts of appeals and um.

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Do fundamental research and also consulting so it's a very mixed bag, but the focus is on a a child centered interdisciplinary approach to the problems facing children today. I'm gonna let cre take over at this point. Um, turning to some of your many publications, you've written

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extensively on the rights of the child. In your article Who Owns the Child, you explore two Supreme Court decisions, Meyer v. Nebraska and Pierce v. Society of Sisters, which solidified the parental control of her children. You've stated that Mayor in particular announced a dangerous form of

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liberty stamped on the reverse side of the coinage of family privacy and parental rights are the child's voicelessness, objectification, and isolation from the community. Can you comment on why you feel that is so? Well, I think we have a, a history in the United States. There,

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there are two sort of intertwining issues here. One is the notion of children as property, which I think is deeply embedded in the way we think about children. It's a very conflicted. Kind of possessory notion our children are ours we we own them. Um, and also

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the concept of privacy and if you put that together you get private property. I think children have suffered from. Not always, but, but, uh, there's there's a tremendous risk that the. Tradition of family privacy can end up um. Obscuring from view maltreatment of children. And and

00:31:26.030 - 00:31:45.890

we see these statistics we're shocked but in fact it's the very. The very tradition of respect for family privacy that allows children to be maltreated in their homes, neglected and abused, and that's what I mean by the uh the painful or the dark side of family

00:31:45.890 - 00:32:03.280

privacy. OK, uh, in your writings you've also referred to the parent child legal relationship as a truly radical grant of power over another person, one that should be earned. Why is it that you feel or do you feel that biology is not enough to earn parents

00:32:03.280 - 00:32:19.459

the right to control over their children? I think biology is enough to create a presumption, you know, just using our own legal lingo to say uh if you are the biological parent, then we'll start with the presumption that you are the person who should exercise authority

00:32:19.459 - 00:32:43.880

over children because children do need some form of of authority and structure in their lives. But it's a presumption only, not an end in itself, and I think the best evidence for this is that uh. That the perpetuation of the species and the perpetuation of society

00:32:43.880 - 00:33:00.670

depends not on people procreating but on their actually taking care of their children so we ought to be focusing on actual caregiving as the definition of the parenting role, um, and, and that's I've, I've taken off uh you know I've used, um, Doctor Seussus Horton hatches

00:33:00.670 - 00:33:20.050

the egg as an example of a story about. The importance of caregiving as opposed to procreation without the follow up of of taking care of the child. So practically speaking, where does the government's role or the state intervention um fit into the balance between the rights

00:33:20.050 - 00:33:37.630

of the child and the rights of the the parent and controlling the child? Well, I've taken a particular perspective on this, uh, and. In as in many other ways um I feel in the sense that I I need to take a child centered perspective in order

00:33:37.630 - 00:33:59.439

to redress a certain imbalance because most of the people who write about families are writing from a very adult centered perspective so from a child centered perspective I'd say the role of the state. Is to Walk a very, very narrow line, a thin line between respecting

00:33:59.439 - 00:34:20.810

and protecting the privacy of the family so that children can feel secure that they have strong and powerful parents who are gonna take care of them. And monitoring that this privacy is not abused in a way that um essentially. Negates the purpose of of family privacy

00:34:20.810 - 00:34:37.969

which is in the end I think to nurture and protect children. So it's a tight it's a tightrope walk and I think we in my classes we always come out with the same conclusion which is that it's almost impossible to have. It is impossible to avoid.

00:34:39.350 - 00:35:01.560

A tragic outcomes. But it is also unthinkable to stop trying to to keep children safe and also keep them in their homes. Yeah, you've mentioned in your article of babies bonding and burning buildings that, uh, we often tend to perceive rights on a zero-sum scale. So

00:35:01.560 - 00:35:17.010

how then practically can we balance the parents' rights and the children's rights if we don't assume that. That they're one and the same. Well what I mean about a zero-sum scale is that people tend to think that if you give rights to children, you'll take them

00:35:17.010 - 00:35:35.709

away from parents, but in fact if you look at documents like the UN Convention on the Rights of the Child, they recognize that the child's. Interest in a relationship with the parent if it's a right if the child has a right to protection of the parent-child

00:35:35.709 - 00:35:52.139

relationship that doesn't detract from but actually reinforces the parent's claim of right to a reciprocal relationship so that's an example of how we can move away from a zero-sum game and come up with a description that in that you know creates more of a synergy between

00:35:52.139 - 00:36:07.709

the the rights of parents and the rights of children rather than a conflict. The UN Convention on the Rights of the Child that you mentioned, uh, has been adopted by almost every country in the international community except the United States. In your article Existing and Emerging

00:36:07.709 - 00:36:24.719

Constitutional Rights of Children, you investigate some of the doctrinal and political barriers that children's advocates face in the United States. Can you comment on what some of those barriers are? Well, um, it's, it's not only been adopted by almost every country, it has been adopted by

00:36:24.719 - 00:36:47.530

every country except the United States and Somalia and Somalia has no actual functioning government, so we are definitely in the minority of the, the international community. I think some of the opposition comes from a conviction on the part of Americans which is very um. Sort of

00:36:47.530 - 00:37:05.100

parochial that we know everything there is to know about rights and nobody outside can really tell us much that's of any use to us obviously our children have. Rights that are protected because we're Americans and but once you get past that kind of reaction. There is

00:37:05.100 - 00:37:25.479

a real fear that the adoption of the convention would result in, I say that the fear is real but it's not realistically based. There is a fear which is is not based on reality that adoption of the convention would change US law and would uh go

00:37:25.479 - 00:37:41.669

so far for example as to the critics say um empower uh children to subscribe to pornographic magazines and their parents would have no way of intervening because the children would have a right to free speech and free expression and so on and I think what's happened

00:37:41.669 - 00:38:04.219

is. The people who are concerned about the UN convention. Are vastly over reading its uh it's reach and its effect and there's been so much propaganda and mis and disinformation put out that many people are are really worried about it. There is also concern that it

00:38:04.219 - 00:38:24.739

would interfere in um. That it would Prohibit and I'll put that in quotation marks the execution of juveniles and absolutely that is absolutely true uh it it would be quite clear that juveniles could not be people under 18 could not be executed and still be in

00:38:24.739 - 00:38:43.100

compliance with the UN Convention. The UN convention is not a self executing treaty, and this is what uh the critics don't admit or don't understand so even if the United States were to adopt it, there would be a tremendous amount of time, opportunity, scope for the

00:38:43.110 - 00:39:02.330

states as well as the federal government to um. To shape their laws in ways that were appropriate for this particular society. Justice O'Connor recently spoke at Penn on a very controversial case that came before the Supreme Court, Choll v. Granville. Given your views on child centered

00:39:02.330 - 00:39:23.729

rights, can you comment on the Supreme Court's holding in that case? Well, we actually submitted an amicus brief from the Center, uh, for Children's Policy Practice and Research. And I was quite pleased with the result in that case for. For this reason we were concerned that

00:39:23.729 - 00:39:45.929

the uh court might make a very broad sweeping statement that parents have constitutional rights that are so powerful that they trump the rights of, you know, I'm using rights and scare quotes here of anyone else who has connections with or relationship with the child we we

00:39:45.929 - 00:40:03.739

didn't want that to happen because at the center we're looking. Out for the interests of at-risk children, children who are either at risk of placement or are already in foster care, and from our perspective, the extended family is an incredibly important asset to these children, so

00:40:03.739 - 00:40:22.120

we hoped that the Supreme Court would do what it did, which is make a very narrow ruling and limit the ruling to the to the narrowest possible grounds. So a lot of people out there are complaining that Troxo v. Granville doesn't. Establish a clear rule and

00:40:22.120 - 00:40:42.719

I'm quite happy because I think it leaves open the field for a more gradual and nuanced development which would take into account the many different contexts in which uh grandparent visitation claims or third party claims uh extended family claims for contact with children might might actually

00:40:42.719 - 00:41:06.429

be very, very important to the children. Thank you, Professor. I'm gonna turn you over to Lean Perez. You're welcome. I could see that you were thinking. Give me 5 seconds. Um, you support the introduction of narratives into, um, the legal analysis. What effects would this have

00:41:06.429 - 00:41:27.229

on law and, uh, justice? I find and perhaps it's because the area I work in is uh because I work with children and children's issues, youth and youth issues I find that narrative is an extremely useful vehicle to make a particular issue very real and concrete.

00:41:28.159 - 00:41:54.090

Um, it may be that for some people narrative scholarship just it doesn't really reach out to them and persuade them. Uh, Some readers are are. Much more comfortable with uh linear logic and and uh. A traditional approach, but I, I firmly believe that many. If not

00:41:54.090 - 00:42:18.419

most. Readers of scholarship also respond to the narrative technique. It's uh a core technique in legal writing every brief is a narrative every case is a narrative. So for me using narrative actually comes very naturally and I think particularly if you're trying to make visible, um,

00:42:18.429 - 00:42:34.270

some injustice. That is not experienced by most people. If you can place it in a narrative form, it can catch the reader a little bit off guard and make them understand what it's like to be you know a child or an African American and an all

00:42:34.270 - 00:42:55.790

white. Neighborhood or all of these other realities that are not always present um to the reader. Um, if personal narratives, um, bring out, um, I guess the subjective factors that, um, touch the lives of the disadvantaged, um, what effect do you think this would have on,

00:42:55.879 - 00:43:13.820

um, the goal of objectivity in the law? Well I suppose that assumes that our goal should be objectivity and I think we need to know when we are being objective and when we are being subjective uh but I'm not entirely convinced that objectivity is really. Possible

00:43:13.820 - 00:43:39.100

as as uh a sole single goal so um in some ways I might answer by saying that use of narrative. Illustrates that objectivity is only one of the stances we take as we think about what is about defining justice. Um, you've also discussed that you believe

00:43:39.100 - 00:43:54.659

law and policy are actually storytellers in themselves that they actually tell us how we ought to be. Um, do you think this is a good thing or a bad thing? I think it's a it's a reality. Uh, I mean, if you think about the, the law.

00:43:55.620 - 00:44:12.229

You, you, you, you can go back much farther than the, the 10 Commandments, uh, I mean 10 Commandments is a form of law, a law giving, and the idea that law would not tell us how we are supposed to be, this is, this is where law

00:44:12.229 - 00:44:36.419

came from. Uh, law originated as a statement about how people are to behave, uh, towards each other in a society. Um, So I can't see. How I could say that's a bad thing, but I do think it's important to understand this interplay between the sort of

00:44:36.419 - 00:44:59.989

rhetorical force of a statement this is legal this is illegal. And it's impact on on real people so that for example the the fact that the law prohibits a particular activity uh is a statement about whether that activity is considered right or wrong by a given

00:44:59.989 - 00:45:22.929

society. But I'm not sure it's a statement about the morality of the activity. Is that, is that too convoluted? I'm thinking about cases like Bowers v. Hardwick or uh questions relating to um changes in well also cases like um Dre Scott. Well, actually, in, um, in

00:45:22.929 - 00:45:37.969

Dred Scott's in your recent article Dred Scott's Daughters, um, you bring out the story of Harriet Scott, his wife, and his two daughters, Eliza Scott and Lizzie Scott. How do you think that history and the law would, um, benefit from hearing, um, the hidden stories of,

00:45:37.979 - 00:45:58.399

um, people who have kind of been in the sidelines? Well for me the the stories I I focus particularly on stories of children and youth and I'm very instrumental in wanting to bring those stories to the surface because. One of the um. One of the effects

00:45:58.399 - 00:46:20.030

of being invisible to history is that no one thinks seriously about uh constructing systems of justice that would also. Encompass the the needs and the the rights of children and youth so by sort of putting children and youth back on the stage of history, my, my

00:46:20.360 - 00:46:39.860

goal is to say yes, these children and youth have been, um, in a sense soldiers in battles for justice and they deserve to be recognized and to have their own claims to, uh, justice, uh, heard. Um, in that article you also, um, you analyze the sit

00:46:39.860 - 00:46:56.820

you analogize the situation of children now, um, in custody battles and abusive homes and, um, foster care, and you, um, you said they were like, um, slave children, um, how do you think they're similar? Well, it would be a gross overstatement to say that that that

00:46:56.820 - 00:47:24.310

they are like slave children, um. But what I'm hoping to do by making that drawing that connection is to highlight that. The enormous power that adults have over children. Uh, we saw it incredibly abused in the context of slavery. But it is, it continues to be

00:47:24.310 - 00:47:40.570

abused or misused in the lives of many children, and I think I, uh, I would like to spend more time, I mean that that actually that chapter is part of a larger work in which which I've been working on for quite a while now. Uh, and

00:47:40.570 - 00:48:00.550

in future chapters I'll be looking at the stories of contemporary youth which have some resemblance to the stories that I'm telling there. So the stories of, uh, contemporary African American girls are not all that different in many ways from Dred Scott's daughters, and, uh, you know,

00:48:00.570 - 00:48:19.169

you can read the newspaper and see stories of children who are, um. Taken into custody and uh by parents and sent to boot camps or deprogrammed or or and then they're also children who are incarcerated by the state so we've got a lot of examples of

00:48:19.169 - 00:48:38.719

situations in which children are deprived of liberty. In ways that really are are reminiscent of these abuses. Um, and, um, in that article you, you disagreed with the way the courts and history have, um, treated the Scott women as nonentities as a mere appendages to Dred

00:48:38.719 - 00:48:53.919

Scott. Um, how do you feel about the nameless fathers and, um, abortion and adoption cases? And, um, do you feel that they too are robbed of their agency when they're treated as insignificant in family law cases? You know, I think that's a very good point to

00:48:53.919 - 00:49:14.179

make. Uh, the way our law of family privacy has developed, you know, the constitutional doctrines of, uh, reproductive privacy. It's really very one sided and I'm not sure I have a good solution for that, but it is absolutely true and this is raised in case books

00:49:14.179 - 00:49:36.659

it's raised by students in class so they have to be pretty brave to raise it. There really is a one sided view of procreational freedom. Uh, women have an abortion right. And they also have a choice not to abort, whereas men have once once conception takes

00:49:36.659 - 00:49:52.100

place they have lost any possible power to affect the outcome and I I don't know what to do with that conundrum. I've been worrying about it and wondering about it, so I think you've asked a good question. Well, um, I have to pass you over now

00:49:52.100 - 00:50:10.919

to, uh, Greg Garland. Hello, I'm gonna ask you some questions about international children's rights. Um, One topic in my research that I found that you spoke about recently in relation to children's rights internationally are barriers to human rights for juveniles. uh, what do you see as

00:50:10.919 - 00:50:36.760

the strongest barriers to develop to developing international children's rights? I actually think that on the international. Seeing there's a very robust um children's rights movement. And Perhaps the reason it can be so strong is that most international children's rights initiatives are setting aspirational goals we want

00:50:36.760 - 00:50:55.189

to do better at this, uh, that, you know, we, we want fewer children to work at at inappropriate labor we want um. Fewer children to be killed by landmines, you know, fewer children to be put into armies and and fighting as as you. When you get

00:50:55.189 - 00:51:11.540

actually down to the local level or the national level that's when the fighting becomes when when the struggle becomes most difficult because it involves real change and uh so I I guess I would say the barriers at the international level are not as significant. As at

00:51:11.540 - 00:51:31.120

the at the national and local level. What do you think should be done? On a greater scale beyond the 1999, 1989 UN convention that you spoke about earlier. I think the UN Convention on the Rights of the Child. Actually sets out a good uh working model

00:51:31.120 - 00:51:48.530

for improving children's condition throughout the the world because it sets up a number of goals and creates uh committees uh it creates a committee on the rights of the child. The Committee on the Rights of the child has the authority to collect reports from the various

00:51:48.530 - 00:52:05.550

signatory states and then to sit down and meet with the people in those states and discuss how. In what ways the the country is falling short of its aspirations, how things could be made better, and I've seen that actually in action in Japan. I was in

00:52:05.550 - 00:52:26.570

Japan and worked with the UN committee when they were meeting with the Japanese diet, so. I actually think the UN convention is a good blueprint for countries that want to have guidance, um, technical assistance, uh, encouragement, uh, feedback in their attempts to make children's lives better.

00:52:27.300 - 00:52:47.459

The biggest problem of course for children. Internationally is war two problems war and poverty, and they're very often related. If we could, uh, find some way to have peace, I think the people that would benefit the most are children. If you look at the. The film

00:52:47.790 - 00:53:08.389

clips on the news and you see who starves and who is displaced and orphaned and homeless and all of these things it's it's a sad. Saadd side. You noted in a recent essay, uh, that the. And I'm gonna quote here. The convention's philosophy is embodied in

00:53:08.389 - 00:53:27.370

Article 3, which reads as follows. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. With that in mind, Were you surprised that scholars

00:53:27.370 - 00:53:49.379

in this country are critical of the convention as to being disrespectful of parents' rights? Well, yes, I, I, uh, oddly enough, the United States is the country that probably was at the forefront of, um, articulating the best interest standard for all kinds of legal, um, all

00:53:49.379 - 00:54:05.250

kinds of laws that relate to children. I mean the best interest of the child is the. Dominant standard throughout the world and I think it's fair to say it started in the common law world and perhaps even in the United States so it's a great surprise

00:54:05.250 - 00:54:21.780

to see the United States saying. recoiling with horror from the principle that we should act in the in the best interests of children. In fact, that's the quotation that you were reading illustrates the convention doesn't even say that it that all actions have to be in

00:54:21.780 - 00:54:41.110

the best interest of the child, only that the best interest of the child has to be a primary factor. Which seems eminently sensible to me, but uh. I guess you'd have to tell that to Jessie Holmes. Um, you have argued in other papers that constitutional language.

00:54:41.959 - 00:55:03.669

While not a guarantee can influence the development of human rights. What would your what would your advice be to a developing nation in relation to human rights for children in writing their constitution? I would advocate that any contemporary constitutional drafting. Uh, project should include explicit rights

00:55:03.669 - 00:55:22.169

for children and uh that it should start from the principle that children have the same rights as adults. Limited only to the extent that children may be unable to exercise those rights because they are, uh, they lack the capacity you know 2 or 3 year old

00:55:22.169 - 00:55:41.409

child doesn't have that capacity so I would start from the principle that children have basic human rights that they share with all others and in addition they have a certain special set of rights because of their dependency rights to nurture, to protection. Um, that are not

00:55:41.409 - 00:56:00.260

necessary for the, the, uh, autonomous grown up but very, very important to children's meeting children's needs. Is there any constitution that you can think of that would might be a model? Well, I've written about the South African constitution which I I think is an excellent model

00:56:00.939 - 00:56:19.949

um it has a specific bill of rights which addresses these issues and makes explicit that these are protections in addition to the basic protections that are any person is entitled to. And uh of course there's always a gap between the ideal and reality and so we're

00:56:19.949 - 00:56:39.679

watching. Events unfolding in South Africa. I think the South Africans are really struggling very hard with uh huge problems like the AIDS epidemic and economic instability, um, but they've made that commitment. It's there, you know, in black and white on their um in in their constitution.

00:56:41.510 - 00:56:57.510

Are you optimistic about the future of children's rights internationally? Yes, in fact, one of the nice things about working on the international level, and I've just come back in fact from Paris where I was at a meeting of the International Society of Family Law Executive Committee,

00:56:58.139 - 00:57:22.739

so I can sit around a table. And there'll be people from Russia and Denmark and Copenhagen, well, Denmark and Copenhagen are the same. Denmark and Norway, Switzerland, I'm trying to Netherlands, England, Spain, Italy. Uh, Japan. And all of them take for granted that the the first

00:57:22.739 - 00:57:37.889

step in discussing any issue of children and the law is to look at the UN Convention on the Rights of the Child, so it helps put in perspective for me that although we have been very slow to adopt the convention. The rest of the world is

00:57:37.889 - 00:57:58.139

moving along uh without us and we'll just have to catch up eventually so I'm relatively optimistic about the development of children's rights internationally because in fact it seems to be. It it is really the most rapidly accepted concept in the history of human rights law is

00:57:58.139 - 00:58:51.719

this notion of the rights of the child. Those are all the questions I have I passing out of the room I welcome. Sure. I Um, Professor Woodhouse, there's a lot of talk these days about, um, the sexual exploitation of children on the internet. And you mentioned

00:58:51.719 - 00:59:10.189

earlier that you teach a class currently at Penn called the Child, Parent and State, and it focuses on how to deal with cases of neglect and physical abuse and sexual exploitation of children. So in light of this, your area of focus, what's your view on regulating

00:59:10.189 - 00:59:37.120

child exploitation and pornography on the internet? I probably have a very unpopular view for a uh professor who progressive or liberal minded professor. I am concerned about pornography on the internet and about exploitation of children. And Well, I certainly would not advocate uh massive hysterical kind

00:59:37.120 - 00:59:58.310

of intervention I think we've had some of that. I also would not abdicate responsibility for ensuring that children can go onto the internet. And be safe there, so I think we have to be as creative as we possibly can be. In Allowing uh in in fostering

00:59:58.310 - 01:00:18.350

the kind of information exchange that's crucial to to uh our modern society without endangering children and and there are cases it is not. At all unheard of, there are increasing numbers of cases where the Internet is being used to exploit children and endangered children, and whenever

01:00:18.350 - 01:00:34.820

I say that I feel like I'm sounding hysterical myself but you know I it's happening, so we have to deal with it. This is true. I mean, it's not only in the area of pornography, but even in cases where children enter chat rooms and they speak

01:00:34.820 - 01:00:53.500

to complete strangers who might exploit them. This worries me much more than the pornography is the uh the use of the of the chat room, the use of the intimacy and an anonymity of the Internet. To uh create dangerous situations right and in light of the

01:00:53.500 - 01:01:14.969

tension between the family privacy model and the um model where the government should probably step in how should there be a balance of who should regulate more the family or the government? Well, I've I've advocated for a real partnership between families and government. I don't think

01:01:14.969 - 01:01:36.820

families can do it all alone, um. It is I think it ought to be a shared concern. A, a kind of community concern that we set up safe spaces for children whether they be parks and playgrounds and sidewalks and schools or the internet. Uh, and again

01:01:36.820 - 01:01:55.340

I think it's really a question of, of, of setting high goals for ourselves to, to have both freedom of expression and safe places, and I think we can achieve that if we set those goals. Uh, my brother is a mathematician whose special area is computers and

01:01:55.340 - 01:02:16.540

I've heard him say that, um, if you tell us we have to build it, we will. If you tell us we have to build something that allows both free communication and safe spaces we'll figure it out. So there's a possibility um for closer regulation um that

01:02:16.540 - 01:02:40.520

can come from the technological technology side, right? Um, Going into that, uh, family privacy theory, in a recent article you wrote about the dark side of family privacy that you mentioned earlier, and this. Model is actually accepted by many major feminists and um in your article

01:02:40.520 - 01:03:00.199

you stated that discussions between feminists and children's advocates are especially difficult not because so much divides us but because so much unites us um is there sometimes a tension between the feminist theories and then the child advocacy theories and how do the two groups work together?

01:03:01.649 - 01:03:21.709

That article, um, which was published in uh George Washington Law Review I think. Came out of the symposium where I was asked to comment on a paper by Martha Feynman. Martha is a wonderfully gifted and brilliant feminist theorist, and I have been a friend of hers

01:03:21.709 - 01:03:42.649

and a comrade for a long time. After the, after I gave my commentary. Um, we had a little episode. This is a story to illustrate the tensions. She was extremely. Hurt and offended because she felt I was saying in my commentary that she didn't care about

01:03:42.649 - 01:04:01.959

children. And it surfaced for us and then I was hurt and offended that she wasn't trusting me enough to understand that I was not uh accusing her of of that sin and what came out of that little um sort of storm that we experienced uh was

01:04:01.959 - 01:04:23.949

a conference that was held up at Cornell. Martha organized it to bring together feminists and children's advocates to explore just this issue. Why is it that we are so um. Troubled when we disagree because most of the time we're all for supports for caretakers we're all

01:04:23.949 - 01:04:41.479

for better income you know a family wage, better health care, you name it we're all on the same page and then all of a sudden we get to something like. State intervention in cases of abuse or suspected abuse and we divide and I think that the

01:04:41.479 - 01:04:55.959

reason is just what I've stated there that we are really such close allies it's kind of like a family fight you're fighting with your sisters we're all committed to many of the same goals, but there comes a point at which we're being forced into a kind

01:04:55.959 - 01:05:13.000

of Sophie's choice. What are we going to choose if we're pushed to the to the to the extreme. Are we gonna save the mother or the child and, and it's a really tough place to be so I think the answer to it is increasing dialogue, listening

01:05:13.000 - 01:05:34.790

to each other. More openly and being less defensive and more understanding of the other's fears. Do you find yourself, um, as a child advocate working with other interest groups aside from the feminist group? Oh yes, yeah, and, and particularly through the center. Uh, the Center for

01:05:34.790 - 01:05:55.080

Children's Policy Practice and Research I've been working with. Um, a number of religious freedom groups I've been working with the American Academy of Pediatrics. I've been working with correctional with, with people who are concerned about, um, correctional institutes and abuses in those institutes. So it's actually

01:05:55.080 - 01:06:13.080

brought me into contact with an awful with with a large spectrum of different interest groups that, you know, our interests will suddenly coincide around issues of children and youth. Is, is there any, uh, strong area of conflict with another group or do you generally work together

01:06:13.580 - 01:06:33.719

very well? It's a little bit like uh as I was describing with feminism I remember in a working group. Of people who were in a coalition opposing a particular piece of legislation. The legislation was the Religious Liberty Protection Act, which is a um sort of. Son

01:06:33.719 - 01:06:52.530

of the religious son of RFRA if you remember the the uh Bernie case. And we all were on the same page all on, you know, singing from the same sheet of music as they say until. Someone said it it became clear that we might be able

01:06:52.530 - 01:07:14.709

to get a an amendment to the legislation that would specifically say that this religious freedom did not apply to um child abuse. Or harm to children and then I was ready to say, OK, I'll take the amendment and the other people were not and so sometimes

01:07:14.709 - 01:07:33.179

when you're in a coalition like that you end up parting ways because you realize that. That the that the constituency that you feel the greatest uh commitment and loyalty to is that their interests now conflict and diverge from the rest of the coalition and this coalition

01:07:33.179 - 01:07:55.659

included for example historic preservationists and you know all kinds of different people who had no particular um interest in children's issues. You've actually been quite involved in advising Congress, uh, for example, in 1995 there was a bill before Congress that promoted, um, the parental rights and

01:07:55.659 - 01:08:12.409

responsibilities, and you had the opportunity to testify against it. Um, can you describe the experience and your reaction to later the failure of the bill, uh, and if you felt that you had a huge impact in that. It was a very interesting experience because I was

01:08:12.409 - 01:08:30.418

on CBS this morning in the morning talking about um adoption. And then had to fly down to Washington, so I came from a very warm, you know, Paula's aunt, she was really nice to me and I came into Congress and the and the uh House Judiciary

01:08:30.418 - 01:08:51.729

Committee was not nice. They were very hostile. You've seen them. They are, uh, uh, I, I was kind of stunned at the force of the hostility that you can get from those, um. From those warring parties, so it was a Difficult experience, uh, very, very adversarial.

01:08:53.028 - 01:09:08.878

Um, I was flattered that they had read my writings which I knew they had done because the, the Republicans in this particular instance were using my writings to attack me, so it was quite a, uh, quite a, an experience. It was like being in the, uh,

01:09:08.889 - 01:09:34.659

in a boxing ring. But I think we were effective at stopping that bill and I'm glad that that happened and then subsequent uh. State legislation I participated in in sending written testimony to state legislatures always around concerns about. Concerns that heightening protection of parents' rights in

01:09:34.659 - 01:09:53.520

the context of in the context of say corporal punishment or um suspected abuse or neglect could end up actually sacrificing children's lives and that that has been a winning argument people are willing to listen to that. Uh, unfortunately I have to wrap it up really quickly

01:09:53.520 - 01:10:07.419

here, but um, I should ask you what plans you have for the future. Well, I'm actually heading down to Florida. I've been here at Penn for 13 years and, and they say that every pot needs to, every plant needs to be repotted occasionally. So I'm heading

01:10:07.419 - 01:10:24.229

down to Florida to become the David H. Levin chair of family law and the director of a new center on children in the law. I'm very excited about this move, uh, partly because I have a number of wonderful family law colleagues. It's a, it's a large

01:10:24.229 - 01:10:38.459

faculty. I've been the only family law professor here and now I'm gonna join a group of about 5 other family law professors, so I'm really excited. Um, I look forward to the palm trees. I won't have to walk home in the snow as I will have

01:10:38.459 - 01:10:57.850

to do today and as you all will have to do, but I see another. 20 years, I certainly hope at least of activism and Research and advocacy for children and uh it's a really exciting prospect. Congratulations we wish you luck and uh thank you for coming

01:10:57.850 - 01:11:12.740

today. Thanks. This was a very professionally done, you know, I'm so impressed. I get that for Well, Katie Couric should be so well she actually is pretty well.