Parens Patriae Research Articles

From shelter to the streets: the feminine face of homelessness in contemporary democracies

ABSTRACT Homelessness has shattered democracies worldwide. This study uses a doctrinal approach, employing content analysis, especially relational content analysis, to examine the underlying factors and difficulties associated with homelessness among women. The study notably focuses on the issue of police violence directed at this marginalised population and sheds light on the vulnerable position of homeless women, highlighting the crucial responsibility of governments under Parens Patriae to protect their lives and freedoms. The study argues that homelessness is fundamentally inconsistent with the principles of human dignity. The findings highlight the constitutional violations committed against homeless women in India, contravening the principles enshrined in Articles 14, 19, and 21, as well as the directives specified in Articles 39(1), 42, and 47. The findings indicate that the social welfare efforts implemented by the state are in line with the objectives of SDGs. This highlights the importance of adopting more focused approaches to address the issue of homelessness among women. Moreover, the study examines the legal framework of the United Kingdom, taking into account the influence of India’s colonial history, and investigates the current practices of democratic nations and the role of the protagonist played by the Indian Judiciary in addressing homelessness.

Rethinking the Principle of Parens Patriae: The Ariha Shah Case from a Cultural and Child Rights Perspective

The aim of the work is to critically examine the encounters of an Indian child with the Jugendamt (‘Youth Office’) in Germany. The article examines the tension between protection and alienation of the child from its family and culture, questioning whether migrant, non-German children in such systems have rights, and if so what could they be? Through interviews with the family and document analysis, the study aims to establish whether the progression of the case from the position of the child has been in accordance with various United Nations human rights treaties such as the Convention on the Rights of the Child. By examining the case from a cultural, social justice and children’s rights perspective, this article concludes that unless steps are taken to dismantle the power and privilege dynamics of such institutions, children of ethnic communities will continue to be at risk of being separated from their families, in addition to being at risk of losing a variety of their rights, including the right to their cultural and religious identity.

The Category «The Age of Majority» and its Assessment in Penal Sciences: An Interdisciplinary Approach

The article presents a complex analysis of an interdisciplinary approach to studying the category «age» in penal sciences with the purpose of working out unified methods of criminal policy in the sphere of counteracting underage crime from the standpoints of criminology, criminal law, criminal proceedings and criminalistics. The variability of the positions of lawmakers in the assessment of the «age» category, especially within the context of developing the conceptual apparatus that will be used for minors and the subject (personality) of the criminal makes it necessary to use unorthodox methods and knowledge within the framework of scientific research. The problems of determining the age of minority made it necessary to use general scientific research methods for a comprehensive, detailed and deep analysis of this category. Antisocial behavior is a wide concept encompassing not only offences and crimes, but also destructive actions of teenagers who have not reached «the age of majority» for criminal offences, for example, unmotivated aggression. The interdisciplinary approach to researching the «age» category allowed the authors not only to conduct a detailed analysis of the elements forming the basis of its functioning, and their influence on the existing state criminal policy of parens patriae (legal principle declaring the protection of the interests of minors as an essential task for the state), but also to expand the boundaries of a standard additive understanding and interpretation of this category with the purpose of its proper clarification. Contemporary doctrinal positions proving the existence of regularities, according to which there is a direct correlation between the age of the subject and the likelihood of a repeat offence, make it necessary to modernizing the views on the age distribution of crime, which is rather invariant in a wide range of social conditions. Correspondingly, the age distribution of crime included in the legislation and used in law enforcement is not justified by the existing evidence. The interdisciplinary assessment of the «age» category made it possible not only to widen the application of contemporary approaches to the use of this category in legislation and law enforcement practice, but also to formulate innovative directions of scientific research aimed at achieving positive changes in the prevention of underage crime.

Audit culture, accountability, and care: A phenomenological anthropology of child welfare

Front-line child welfare workers have long since preoccupied social work, sociological, and anthropological scholarship. This article employs phenomenological anthropology to attend to the embodied, experiential, and sensorial dimensions of front-line child welfare work. However, rather than renew calls to improve casework through increased institutional support, resilience-building, or retention efforts, I draw on caseworkers’ lived experiences to engage in a critical examination of the state’s role as parens patriae. What do caseworkers’ experiences “on the inside” reveal about the state’s capacity to care—both for its own frontline staff and the families in its purview? How do such experiences problematize our understanding of state accountability? Ultimately, how can they shift the scholarly fixation on developing “better” workers who can accommodate the ever-increasing demands of casework, to a larger critique of the state’s ability to serve as “the guardian and ultimate guarantor of child welfare” ( Boyden, 2005 : 195)? By locating caseworkers’ experiences within a larger context of “audit culture”—a climate of suspicion and surveillance that forces workers to constantly account for their productivity and performance—this article problematizes the state’s model of accountability and care ( Shore and Wright, 2000 ). I argue that, in light of the toxic social dynamics it creates, “audit culture” is incommensurable with the state’s role as parens patriae.

Parens Patriae: How Does Public Monitoring and Enforcement Provide for Older Adult Health and Well-Being?

Parens Patriae: How Does Public Monitoring and Enforcement Provide for Older Adult Health and Well-Being? Public Policy & Aging Report, Volume 31, Issue 2, 2021, Page NP, https://doi.org/10.1093/ppar/prab008 Published: 14 May 2021

How Does Law Support Compassionate Mental Health Practice?

Compassion has long been a bulwark of mental health law. Civil commitment, guardianship, mandated clinical intervention, diversion courts, involuntary medication, insanity defenses, and aid-in-sentencing evaluations are all elements of compassionate mental health practice. Parens patriae (the state as parent) and the least restrictive alternative are the specific concepts supporting therapeutic intention and purpose and are particularly relevant in cases in which force may be needed in the course of a patient's care. This article considers how using law compassionately can be evident even in forced clinical interventions.

Parens Patriae and the Disinherited Child

Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up solutions largely based on the two models currently employed by other countries: 1) the forced heirship approach, in which all children are entitled to a set percentage of their parent’s estate; and 2) family maintenance statutes, which provide judges with the discretionary authority to override a testator’s wishes and instead award some portion of the estate to the testator’s surviving family members. This Article takes a different approach and looks at the issue of disinheritance through a new lens: the doctrine of parens patriae. Just as this doctrine limits the decision-making autonomy of living parents vis-a-vis their children, this Article argues that it should likewise limit the dead hand control of deceased parents. Focusing on minor children, adult children who remain dependent as a result of disability, and adult children who are survivors of parental abuse, it is the contention of this Article that testamentary freedom must sometimes yield to the state’s inherent parens patriae authority to protect children from harm. Specifically, this Article proposes that courts should refuse to enforce testamentary schemes that disinherit those children if that disinheritance would constitute abuse or neglect. Such an approach is not only mandated by the doctrine of parens patriae but, in contrast to the approaches other countries have adopted, is more deferential to testamentary freedom. The limitations it does impose represent a relatively modest curtailment of the rights testators currently possess and, at the same time, are consistent with existing exceptions to testamentary freedom, most notably those in place to protect spouses and creditors as well as those that prohibit the enforcement of testamentary provisions that violate public policy.

Parens Patriae Liability Prevented by Governmental Immunity

In McLaughlin v. City of Martinsburg , 2017 W. Va. LEXIS 638 (W. Va. 2017), the Supreme Court of Appeals of West Virginia held that there was no evidence of police negligence for failure to take Peter James McLaughlin into custody after emergency dispatchers received a report that he exhibited

"미국의 부권소송(Parens Patriae Action)에 관한 연구 -우리나라 독점규제법 분야에의 도입가능성을 중심으로-"

"미국의 부권소송(Parens Patriae Action)에 관한 연구 -우리나라 독점규제법 분야에의 도입가능성을 중심으로-"

Waters of the State

The Southern Nevada Water Authority, the agency that provides Las Vegas with water, is in the process of building a massive water pipeline from the eastern-central part of Nevada to Las Vegas. This pipeline is a nearly-unprecedented feat of engineering and water distribution, and stands to move over 27 million gallons of water a year. Once completed, the pipeline will be one of the largest of its kind in human history. If the state of Nevada authorizes a state authority to go forward with this project, it would help solve a serious water supply problem for its largest population center at the expense of diminished water for existing rural users. Can the state freely reallocate water within its borders? More fundamentally, what powers and rights does the state have over water within its territorial boundaries with respect to its private citizens, neighboring states, and federal government? Nevada, by statute, has declared that “[t]he water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public.” As the waters of Nevada belong to the public, the state can regulate water use (police power), protect water resources for the public (public trust doctrine), and go to court on behalf of the public’s interest in water (parens patriae). These sovereign powers and rights give the state considerable control and even some duties over its water, but they do not amount to ownership. The state of Nevada is a sovereign with respect to its water, but not a property owner, and it can’t allocate, dispose, or protect its water as it would a state building or vehicle. But what if a similar proposal were floated in a different state facing water allocation challenges, such as Wyoming. Wyoming’s constitution provides: “The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.” This self-declaration of water ownership sounds like it gives the state fundamentally different rights over water. It suggests that the state has a proprietary power over all water within its territory. Perhaps the state could allocate and reallocate water to private users, denying water use at will. Further, if the water is simply state property, it can sell it off, hoard and store it for future speculative uses, or simply give it away when politically convenient. And if Wyoming owns the water within its borders, can it demand that its neighbors’ water use have no physical transboundary impacts, essentially drawing a property line through the water cycle?

The Development of Doctrine Parens Patriae in Indonesia’s Juvenile Justice System

The future of the child is the future of a country, including the future of juvenile, who being in incarceration. Mostly, juvenile who dealing with incarceration unable to continue his/her education. It is worse when the juvenile put in same institution with adult offender. As a consequence, the juvenile is getting further from restoration. In Indonesia right now, the existence of special juvenile detention center (called Lembaga Pembinaan Khusus Anak / LPKA) is still new and not in all part of Indonesia. It is worse when LPKA still has prison paradigm which accentuate rough treatment. As consequence, the juvenile being more violent and effect to community respond to ex-juvenile delinquents. This article is normative research, equipped with empirical research to compare what the law regulate to the reality of juvenile justice system in Indonesia. This article use secondary data, consisting of primary, secondary and tertiary legal material. Authors analyze the data qualitatively and make a conclusion from it. The result show that to ensure the future, a state must play as a parents (parens patriae) to the juvenile. The using of law must consider the best interest of the child. Specifically, in Indonesia’s Juvenile Justice System, government through police officer, attorney or prosecutor, judge must put it first what juvenile needs than punish the juvenile in order to give a deterrent effect. Lastly, the role of LPKA as embodiment of state must prove advocacy, education, coaching, and protection to juvenile as a parent usually give to their children.

Guardians of the Charitable Realm: Charitable Trust Supervision Practice and Procedure in the Common Law World

This article examines the control framework for the supervision and oversight of charitable trusts in the common law world. It outlines in Section 1 the fundamental differences between private and public trusts that necessitate a separate enforcement regime for charitable trusts before exploring in Section 2 the historical and political powers and duties of the Attorney General as parens patriae of charities. In light of the limitations of the Attorney General’s effective scrutiny, Section 3 considers the emergence of alternative charity regulators – from tax authorities to independent charity commissions – comparing the relative regulatory achievements of these agencies with that of the Attorney General (AG). Section 4 turns its attention to the role of the courts and tribunals in the enforcement of the interests of donors, beneficiaries and charitable entities. The article concludes in Section 5 with a discussion of the merits and demerits of the charitable trust vis-à-vis the public benefit foundation and explores whether civil law systems intent on adopting the trust need to rethink their enforcement options when it comes to charitable trust enforcement.

Court orders on procreation.

The aim of this study is to empirically evaluate judgments entered from 1913 to 2013 in the matters of compulsory sterilization. Holdings and dispositions at the U.S. Appellate and Supreme courts are randomly located in LexisNexis using Shepard's symbols. Continuous variables are processed with the Mantel-Haenszel method. Court orders are used as units of analysis. The majority of cases (56.4 %) concern minors at a mean age of 11.7 years. Forty-four (80 %) petitions are filed by the parents or guardians; 11 (20 %) are parens patriae. Petitions for female sterilization are denied in 56.4 % cases under the Federal Laws (2 U.S.C. 431; 28 U.S.C; 29 U.S.C; 42 U.S.C; 424 U.S.), Procedural due process clause of the 14th Amendment, statutes, and common law precedents. Petitions for female sterilization are granted in 36.4 % cases under the statutory penal codes, the Law of the land, precedents, and the dicta. No significant associations are found between the parity and degree of mental impairment (r = 0.342). Substantial correlations are met between the gender, degree of impairment (r (2) = 0.724), and dispositions (r (2) = 802). The mean age of women is 20.78 years; the mean age of men is 30.25 years. Correlations fail to establish reasoning between the age of the subjects and the entered judgments (r (2) = 0. 356). (1) The female/male ratio (8:1) and age gap of the respondents indicate on a disproportionate impact of the statutes. (2) The procedure of sterilization in itself is incommensurate with equality, as the volume of surgery is uneven in males and females. (3) The case law is instructive with respect to which arguments have not been advanced. (4) Lastly, due to the etiological intricacy of mental impairment, with genetic transmission strikingly different in men and women, expert-witnesses ought to act in a medical vacuum because there is no mathematical certainty as to the transmission mode of the traits in question (exon and intron mutations, triplet repeat disorders, histone disorders, autosomal-dominant or autosomal-recessive transmission, sex chromosome-linkage, polygenomic imprinting, and organic reasons).

Book Review

Psychiatry and the Business of Madness: An Ethical and Epistemological Accounting. Bonnie Burstow. London, United Kingdom: Palgrave Macmillan, 2015, 316 pp., $40.00 (paperback) $95.00 (hardcover).This book is arguably the most comprehensive and brilliant critique of psychiatry that I've ever read; it's a devastating expose of psychiatry's discredited medical model and institutional psychiatry, "a regime of ruling." Bonnie Burstow's book is absolutely awesome in its numerous, thoroughly researched facts and original insights and scholarship frequently voiced with passion. Burstow uses the research analytic tool of institutional ethnography-"ruling happens through texts, particularly through the activation of texts" (p. 18). With this powerful intellectual probe, she deconstructs "boss texts" and takes us on an incredible journey into psychiatry, its alarming methods of social control, its intrusive brain-damaging drugs and electroshock. Burstow ends this awesome work in the spirit of hope and humanity she calls "Eutopia," a vision of a better world of compassion, empathy, mutual caring, respect for freedom and human rights.She begins with a short and concise history of psychiatry featuring mad doctors and "alienists" (an apt word) during the 18th century, including Philippe Pinel who unchained poor people with mental illness in a Paris asylum but instituted a reign of terror of close surveillance and control. In the 19th century, there's Benjamin Rush, the notorious "father of American psychiatry" whose face appears on the American Psychiatric Association's logo; he invented the traumatic "tranquilizer chair" and advocated fear as therapeutic; he also labeled black slaves with the disease of "drapetomania," running away to be free; he also committed his son to an insane asylum. The gentler "moral treatment/moral management" of country retreats in the late 18th and early 19th centuries soon died; by the late 19th and early 20th century, it was replaced with eugenics/genetics-based, physically intrusive biological psychiatry, which unfortunately dominates today. This is a small but telling fragment of psychiatry's dark history of social control, medical fraud, coercion, and violence.Burstow asserts that two fundamental principles underlie psychiatry and the book: parens patriae and police powers. Parens patriae (literally "father of the country") refers to power of the state to control, imprison, and forcibly treat citizens; police powers are mainly expressed as coercion, arrest, and use of force. Psychiatry, Burstow asserts, is essentially a regime of ruling; however, given psychiatry's hegemonic social control, the terms psychiatric dictatorship and psychiatric police state seem more appropriate.In Chapter 4 ("Probing the Boss Text: DSM-What? Whither? How? Which?"), Burstow brilliantly analyzes the Diagnostic and Statistical Manual of Mental Disorders (DSM), psychiatry's bible of fraudulent diseases. Unlike medical diagnoses, the approximately 350 diagnostic labels in DSM-5 (the current edition) are not only subjective and unscientific but also frequently lead to serious life-changing consequences such as loss of freedom (involuntary commitment), psychiatric drugging, and/or electroshock (electroconvulsive therapy [ECT]). DSM labels, Burstow asserts, serve no medical or scientific purpose, instead they routinely marginalize and stigmatize. Burstow succinctly summarizes major problems of the DSM, "subjectivity . . . masquerading as objectivity . . . nothing less than the essence of who the person is . . . constitutes a disorder" (pp. 94-95). She calls this activating text a "patient-processing system," denounces it as having absolutely no scientific validity or reliability; like the late psychiatrist Thomas Szasz and other dissident health professionals, Burstow correctly states there is "no mental illness" because there is no biological or medical evidence of cellular disease in anybody labeled mentally ill. …

PERSON-CENTERED PLANNING IN GUARDIANSHIP: A LITTLE HOPE FOR THE FUTURE

Across the states, territories, and the District of Columbia, American guardianship functions as a statutory grant of legal authority to a person or entity over an adjudicated incompetent or incapacitated person (“AIP”). It is widely described as the most intrusive of the fiduciary powers, having earned such a reputation in recent decades as to have AIPs declared “legally dead.” America’s inherited collective form of guardianship originated over the course of centuries and across many cultures of western civilization. A primary component rooted in the inheritance was the doctrine of parens patriae. The focus of parens patriae was the Crown’s (now state probate and guardianship judges’) exercise of its paternal royal prerogative over its subjects unable to protect themselves, but with the singular objective of protecting the subjects’ properties for the Crown. This myopic concern for guardianship property has continued in American jurisprudence, where concern for the AIPs themselves was considered beyond the expertise of the courts, and better relegated to public and private social agencies. This continues to be the indictment of guardianship, where vulnerable citizens, those mentally ill or mentally or physically challenged , have been condemned to a perverse legal system that protects property over the person. While countless American studies have found that guardianship protects those adults amongst us who are helpless and vulnerable, they have also uncovered evils in guardianship: removing all individual rights; denying access, connection, and voice to those lost in guardianship’s gulag; and still continuing a process rooted in systemic perversities. Recent reexaminations of monitoring and public guardians acknowledge that guardianship still limits the autonomy, individuality, self-esteem, and self-determination of AIPs.

State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae

The national settlement terminated the attorney generals' tobacco litigation before legal theories were fully tested. The theory of parens patriae, which allows the state to sue on behalf of its citizens, was developed in detail by Louisiana's legal team and has implications beyond the tobacco litigation. Understanding this theory is useful to understanding the reach and limits of state power in possible future actions such as those involving guns or other products that states may jointly challenge.

Ethics Commentary: Ethical Use of Power in High-Risk Situations

Ethics Commentary: Ethical Use of Power in High-Risk Situations

When Coercion Lacks Care: Competency to Make Medical Treatment Decisions and Parens Patriae Civil Commitments

The subject of this Article is people who have been civilly committed under a state's parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves. Even after they have been determined to be so disabled by their mental illness that they cannot care for themselves, many are nonetheless found to be competent to refuse medical treatment. Competency to make medical treatment decisions generally requires only a capacity to understand a proposed treatment, not an actual or rational understanding of that treatment. This Article proposes that in cases of parens patriae civil commitments, an actual or rational understanding should be required. A test of competency that requires actual or rational understanding of a proposed treatment is needed in these cases given the lack of insight commonly experienced by people with psychotic disorders, the potential of psychotic symptoms to interfere with rational decision-making, and the immense harms-both immediate and long-term-that can result from untreated psychotic symptoms.

Advancing public health obesity policy through state attorneys general.

Obesity in the United States exacts a heavy health and financial toll, requiring new approaches to address this public health crisis. State attorneys general have been underutilized in efforts to formulate and implement food and obesity policy solutions. Their authority lies at the intersection of law and public policy, creating unique opportunities unavailable to other officials and government entities. Attorneys general have a broad range of authority over matters specifically relevant to obesity and nutrition policy, including parens patriae (parent of the country) authority, protecting consumer interests, enacting and supporting rules and regulations, working together across states, engaging in consumer education, and drafting opinions and amicus briefs. Significant room exists for greater attorney general involvement in formulating and championing solutions to public health problems such as obesity.

Parens Patriae Litigation to Redress Societal Damages from the BP Oil Spill: The Latest Stage in the Evolution of Crimtorts

ABSTRACT * The BP oil spill has led to some of the most complex legal dilemmas in Anglo-American history. This Article explores four mechanisms that claimants are using to seek compensation for damages caused by this unprecedented environmental disaster: (1) Torts; (2) Class Actions; (3) the Gulf Coast Claims Facility; and (4) Environmental Patens Patriae Actions. We argue that the government-initiated parens patriae actions are necessary to supplement, but not to supplant, the other three mechanisms in order to vindicate the larger societal injury. The patens patriae litigation may enable the Gulf States to recoup larger societal losses to their habitat, ecosystems, tax revenues, and tourism. This mechanism can potentially resolve the problem of aggregating valid claims by plaintiffs who cannot be certified as classes or who do not qualify under the Gulf Coast Claims Tribunal Guidelines. We classify environmental patens patriae as public crimtorts because government attorneys deploy private tort law to redress societal injuries. By contrast, in private crimtorts, trial lawyers receive punitive damages as a bounty for uncovering and prosecuting dangerous conditions and practices. Both public and private crimtorts require intermediate procedural protections to ensure that corporate defendants are treated fairly. Courts or legislatures will need to determine which intermediate protections best balance defendants' rights versus society's interests. I. INTRODUCTION: THE BP OIL CATASTROPHE II. PART I: CIVIL JUSTICE ALTERNATIVES FOR COMPENSATING THE BP OIL SPILL VICTIMS A. One-on-One Torts 1. The Case for Individualized Environmental Justice 2. Difficulties in Proving Causation in Environmental Torts 3. David v. Goliath Imbalance in Legal Resources a. The BP Corporate Family b. The Transocean Corporate Family c. The Halliburton Corporate Family d. The Andarko Corporate Family e. The Moex Offshore Corporate Family f. Cameron International Corporation g. Miscellaneous Additional Defendants 4. Environmental Torts Will Overwhelm the Civil Justice System B. The Gulf Coast Claims Facility (GCCF) 1. The Formation of the Gulf Coast Claims Facility 2. Advantages of the Gulf Coast Claims Facility 3. Concerns About the Gulf Coast Claims Facility a. Kenneth Feinberg: The $20 Billion Dollar Man b. The GCCF's Legitimacy and Transparency Limitations c. Controversial GCCF Proximate Cause Delimiters d. Exclusion of Noneconomic Damages as Tort Reform in Disguise e. The Abolition of the Collateral Source Rule f. The GCCF Does Not Compensate Societal Damages C. Class Actions Against Oil Industry Defendants 1. Advantages of Class Actions III. PART II: THE RESURRECTION OF PARENS PATRIAE FOR COLLECTIVE INJURIES A. The Gulf States' Parens Patriae Environmental Actions B. History of Parens Patriae 1. The Equitable Roots of Parens Patriae 2. Parens Patriae Exported to America 3. Injunctive Relief in Early Parens Patriae Environmental Cases C. The Modern Expansion of Parens Patriae D. The Metamorphosis of Public Nuisance 1. Public Nuisance in Tobacco Parens Patriae Actions 2. Public Nuisance in Environmental Parens Patriae Actions a. Show Me the Money: Parens Patriae Actions b. The Rise of Public Crimtorts 3. Alabama's Pioneering Environmental Parens Patriae Action 4. Louisiana's Declaratory Judgment Action 5. …