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As King Solomon understood, custody disputes ordinarily allow no easy answers. Increasingly, legal actors have begun to rely on the child's custodial preference as a proxy for her best interests. In an effort to ascertain this preference without subjecting the child to the trauma of courtroom testimony, many states authorize courts to interview children in camera. Good intentions notwithstanding, these custody interviews pose considerable risk to children, to their parents, and to the State's best-interests quest.

These risks increase dramatically when in-camera interviews serve as tools for searching out preferences that have not been publicly volunteered; when children's preferences are given very weighty or dispositive effect; and when the state denies parents an opportunity to challenge the accuracy and reasonableness of their children's statements. The U.S. Supreme Court's decision in Troxel v. Granville increases the urgency of a reassessment of these custody practices. Troxel's reaffirmation of the significance and breadth of parental rights strengthens parents' claim that procedural due process entitles them to access their children's in-camera statements. While such parental access reduces information risks, it exacerbates process risks for children, and counsels careful attention to the context and consequence of preference interviews.

In this short essay, I respond to two questions raised by Victoria Nourse in her recent review of my book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom (NYU Press 2003). Murder and the Reasonable Man examines ways in which race, gender, and sexual orientation norms can influence the reasonableness requirement in provocation and self-defense cases. Nourse asks: (1) In light of my critique of the Reasonable Man standard, why not simply eliminate the reasonableness requirement in the doctrines of provocation and self-defense?, and (2) Why not ask legislatures to carve out categories of things that cannot constitute legally adequate provocation, such as a female partner's infidelity and a non-violent homosexual advance? I respond to Nourse's first question by arguing that in spite of its problems, the reasonableness requirement in both provocation and self-defense law serves a useful function, ensuring that a completely irrational actor cannot get away with murder simply by claiming he was actually provoked into a heat of passion or honestly believed he needed to us deadly force to protect against an imminent threat of death or serious bodily injury. Requiring the jury to find that a reasonable person in the defendant's shoes would have also been provoked or would have also feared an imminent deadly attack provides an objective check on the defendant's subjective passions and fears. While this objective check may be influenced by the jury's personal biases, it is better than no check at all. In response to Nourse's second question, I argue that juries are better institutional actors than legislators when it comes to deciding what is fair and just in an individual case. Additionally, the deck is stacked against most criminal defendants before they even enter the courtroom, and I do not favor stacking the deck any further by taking away from the defendant the opportunity to argue a particular defense. The solution to the problem of race, gender and heterosexual orientation bias lies in making salient the race, gender, and/or sexual orientation norms that make certain defendants' claims of reasonableness seem more reasonable than others.

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GWU Law School Public Law Research Paper No. 172

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