The Wisconsin Supreme Court's decision in State v. Oakley, in which the court upheld a probation order prohibiting Mr. Oakley from fathering additional children until he could support them, is a compelling example of a troubling flaw in our constitutional jurisprudence. Absent the countervailing check perhaps provided by the doctrine of unconstitutional conditions, each path of doctrinal analysis, considered separately, arguably leads to the conclusion that the probation order is valid. This is so even though a number of institutional, structural, and process-based considerations converge to render the order's constitutionality highly suspect. The prevailing doctrinal approach is to disaggregate the case into distinct lines of argument. Do the poor constitute a "discrete and insular minority"? The articles by Professors Richard Cole, David Papke, and Bruce Miller take up the challenge of considering historical, legal, and cultural approaches to poverty. Are probation conditions subject to heightened scrutiny? Professor Jennifer Levi argues, in part, that even a radical change in the standard of review would not change the outcome of either the majority or dissenting opinions. Is this a case involving discrimination based on sex? Professor Jennifer Martin considers the impact that the Oakley decision may have on women, especially those subject to domestic violence.
26 W. New Eng.L. Rev. 1 (2004)