Thursday, January 27, 2011
The Law of Baby Names
My new article on parental naming rights is now up on SSRN:
This Article provides the first comprehensive legal analysis of parents’ rights to name their own children. Currently, state laws restrict parental naming rights in a number of ways, from restrictions on particular surnames to restrictions on diacritical marks to prohibitions on obscenities, numerals, and pictograms. Yet state laws do not prohibit seemingly horrific names like “Adolf Hitler,” the name recently given to a New Jersey boy.
This Article argues that state laws restricting parental naming rights are subject to strict scrutiny under both the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. This Article concludes that although many restrictions are constitutional, prohibitions on diacritical marks, such as that employed by the state of California, are unconstitutional. If parents wish to name their child Lucía or José, they have a constitutional right to do so. Similarly, current laws restricting parental choice of surnames fail strict scrutiny. This Article also considers the constitutionality and desirability of statutory reforms that would address certain harmful names not prohibited by current law.
Along the way, readers will encounter heavy metal bands with unusual umlauts, boys named Sue, the history of birth certificates, false implications of paternity, and dozens of truly awful, but very real, names given by parents to their children.
Law review editors: This article is currently on the adoption market and is seeking a loving home. It has all its papers and shots and promises to be friendly and well-behaved.
Posted by Carlton Larson on January 27, 2011 at 02:05 PM | Permalink
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Interesting article! Has anyone (La Raza, perhaps) ever tried to challenge the California prohibition on diacritical marks? And does it derive only from the handbook in the Office of Vital Records, or from some state statute or regulation?
Posted by: Lawyer | Jan 27, 2011 2:55:31 PM
I noticed that Solum invented a new category of praise for this draft, "well done." I assume he felt that if he wrote "recommended" some readers might mistake his endorsement of the article for an endorsement of gratuitous umlauts.
Posted by: BDG | Jan 27, 2011 3:58:13 PM
Lawyer: As far I can tell, the California prohibtion is simply from administrative practice and not from a statute or formal regulation. I am unaware of any prior or current litigation challenging this prohibition.
Posted by: Carlton Larson | Jan 27, 2011 4:27:02 PM
BDG's birth certificate actually reads "The Notorious BDG," but he's long gone by "Brian D. Galle" after being on the wrong end of some nasty litigation brought by late rapper Christopher Wallace in the early 90s (right after Biggie's stuff blew up at the clubs). I'm always reminded of the sad irony of this whenever I'm hypnotized by BDG's latest work.
I'll stop now.
Posted by: Brendan Maher | Jan 29, 2011 10:51:01 PM
Thanks for publishing this important article. The trend toward ever more "unique" names continues unabated, both among the general public and celebrities. (Bronx Mowgli, Pilot Inspektor, and Moxie Crimefighter come to mind). The issue needs to be debated fully. As your article makes clear, there are no simple answers under the constitution for this thorny problem. But the debate needs to be held.
Posted by: The Names Blog | Jan 31, 2011 12:36:33 PM