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Abortion, Pregnancy Loss, & Subjective Fetal Personhood
Get PDFLong-standing dogma dictates that recognizing pregnancy loss threatens abortion rights-—acknowledging that miscarriage and stillbirthinvolve the loss of something valuable, the theory goes, creates a slippery slope to fetal personhood. For decades, antiabortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate fetal personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss and, more recently, remained silent, alienating those who suffer a miscarriage or stillbirth.
This Article argues that this perceived tension can be reconciled through the concept of subjective and relational fetal value. The Article derives thisconcept from pregnancy loss research, which demonstrates that a pregnant person’s attachment to their fetus is based on myriad individualized factors. Attachment in pregnancy is neither fixed nor biological and therefore does not support the antiabortion concept of personhood-at-conception. We suggest that tort law offers a way forward: a model of recognizing subjective, relational fetal value that does not collapse into personhood-at-conception. Thus, abortion rights advocates can recognize and support those experiencing pregnancy loss without ceding ground on abortion rights.
Most importantly, this Article proposes that recognition of pregnancy loss within abortion narratives will better position the abortion rights movement for a post-Roe America in which abortion and pregnancy loss are inexorably intertwined. Without legal abortion access, women will turn to self-managed abortion. But because complications from self-managed abortion are indistinguishable from miscarriage, investigation and criminalization of pregnancy loss will increase as a mechanism to enforce abortion laws. Further, restrictions on abortion will limit medical treatments for pregnancy loss. Looking forward, we argue that an abortion rights narrative that can join forces with the pregnancy loss community by acknowledging subjective fetal value will be less alienating to many Americans and reflect nuanced views on the meaning of pregnancy. Last, appreciating the blurriness between abortion and pregnancy loss will help normalize and destigmatize all pregnancy endings that do not result in a live birth—abortion, stillbirth, and miscarriage-—benefitting all pregnant people
The Informed Jury
Get PDFThe right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.
One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant. This principle of jury ignorance is a profound mistake. It is unmoored from history and the core function of the jury to authorize punishment. Worse, it exacerbates the criminal legal system’s predilection for excessive severity.
This Article offers and defends a proposal to replace ignorant juries with informed ones by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction. Informed juries would change the dynamics of criminal justice for the better. In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust. But more importantly, informed juries would provide systemic benefits. Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity. In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right
The Duties of Occupying Powers in Relation to the Prevention and Control of Contagious Diseases through the Interplay between International Humanitarian Law and the Right to Health
Get PDFThis Article explores the rules governing the prevention and control of contagious diseases in occupied territory under international law. Although the Article refers to the ongoing COVID-19 pandemic, its scope is broader and encompasses instances of state practice that have occurred over the last two centuries. After a careful analysis of the relevant treaties and episodes of state practice, the Article concludes that occupying powers have duties under international humanitarian law and international human rights law to prevent and control contagious diseases, through cooperating with the local authorities and bringing the necessary medical supplies in the occupied territory. The Article stresses that taking these measures, including facilitating the supply of vaccines, is a duty under international law rather than an arbitrary act of international solidarity
Suspension of Citizenship: Ethical Concerns in International Commercial Surrogacy and the Legal Possibility of Stateless Children
Get PDFLegal issues often exist in ethical gray areas. Advancements in reproductive technologies have increased family-building options for those that were previously unable to procreate. Similarly, globalization has increased family-placement options for children in the adoption context. However, when assisted reproductive technologies advance in a globalized world without regulation or international cooperation, international com- mercial surrogacy arrangements are governed by contractual systems that often protect the commissioning parties, rather than those who are most vulnerable and in need of protections. This Note examines how the current lack of international regulation and cooperation in the international commercial surrogacy context can leave children stateless and without the protection of citizenship. By suggesting recommendations for international cooperation that prioritize the ethical concerns regarding the best interests of the child, this Note proposes a starting point for balancing the importance of state sovereignty against the dangers of an unregulated surrogacy system
Defending Henrietta Lacks: Justification of Ownership Rights in Separated Human Body Parts
Get PDFSince the time of Moore v. Regents of the University of California, it has become a well-established and widespread view that a person, when their separated body parts are misappropriated, is forced to limit themselves to fiduciary and other non-proprietary claims against those who violate the bodily inviolability of their separated parts. Now, with the filing of a lawsuit in defense of the rights in body parts of the victim of racial discrimination, Henrietta Lacks, the judicial system has an opportunity to justify itself by adopting a different perception of rights in human body parts. This Article focuses on the fundamental similarity between separated human body parts and other property, which creates a basic possibility for them to be owned. It argues that a person has ownership of their separated body parts and provides a critical analysis of other theories of rights in the human body, which results in establishing that the concepts that do not refer to the right of ownership entail infringement of human rights and the inability to restore their interests to the fullest extent. Only a clear adherence to the idea of ownership in body parts will protect the memory of the deceased Mrs. Lacks and prevent her rights and those of her descendants from being trampled upon, while at the same time opening the way and setting a precedent for the protection of the rights of others in a similar situation
Information Operations under International Law
Get PDFAn information operation or activity (IO) can be defined as the deployment of digital resources for cognitive purposes to change or reinforce attitudes or behaviors of the targeted audience in ways that align with the authors\u27 interests. While not a new phenomenon, these operations have become increasingly prominent and pervasive in today\u27s digital age, a trend that the ongoing war in Ukraine and the use of the internet for terrorist purposes tragically demonstrate. Against this backdrop, this Article critically assesses the existing international legal framework applicable to IOs. It makes three overarching claims. First, IOs can cause real and tangible harms to individual and state interests protected by international law. To prevent and remedy such harms, a robust and comprehensive legal framework constraining the use of IOs by both state and non-state actors becomes a necessity. Second, existing international law regulates IOs through a system of prohibitions, permissions, and requirements. In particular, the Article analyzes the extent to which international human rights law, the principles of non-intervention and sovereignty, and due diligence obligations apply to state and non-state uses of IOs. Third, the fact that existing international law captures some of the harms of IOs does not mean that this framework is sufficient or adequate. In fact, we argue that, in their current form, international rules on IOs are only partially effective given challenges relating to their (i) application, (ii) orientation, (iii) complexity, and (iv) enforcement in the context of information and communications technologies. While accepting that international law, both conventional and customary, already contains important protections against harmful IOs, our analysis aims to reignite a much-needed discussion of the merits and shortcomings that adopting a new regime tailored to IOs might produce
Without Accommodation
Get PDFUnder the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017-2018 data from the American Time Use Survey\u27s Leave and Job Flexibilities Module, I find that disabled workers report far less access to these pandemic-relevant accommodations than do nondisabled workers. I further present evidence that disabled workers\u27 lower rates of access to pandemic-relevant accommodations are due, in part, to occupational segregation. Because disabled workers are more likely to work in jobs that are not amenable to working from home, working flexible hours, and taking temporary leave, the results raise concerns about many disabled workers\u27 ability to maintain their employment during the pandemic. The results further highlight the inherent weaknesses of the ADA and the need for additional supporting legislation including short-term insurance and educational funding programs for disabled workers
The Overreach of Limits on \u27Legal Advice\u27
Get PDFNonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice
Local Power
Get PDFThis Article is about “local power.” We use that term in two distinct but complementary ways. First, local power describes the authority of local governments to enact regulatory policies in the interests of their citizens. Second, local power describes the authority of local governments to exercise proprietary control over the sources and delivery of electric power to their citizens. This dual meaning of local power is particularly important today, as an increasing number of local governments are seriously considering “municipalizing”--taking control of local electric power systems-—at the same time that, outside the electric power sector, many states are constraining local regulatory power by displacing or “preempting” local initiatives in a broad range of environmental, economic, and social policy arenas.
Building on this dual meaning of local power, this Article constructs a new and important link between two existing bodies of legal scholarship: (1) state and local government law, with a focus on the recent, aggressive state preemption of local environmental, economic, and social regulatory policies, and (2) energy law, with a focus on the broad authority that exists in virtually every state for local governments to act in a proprietary capacity to control the generation and delivery of electric power to their citizens to meet a broad range of economic, environmental, political, social, and racial equity goals. In establishing this new connection between the two scholarly fields, we illustrate how local communities’ exercise of control over electric power systems creates a potential safe harbor from the well-documented trend of increased state preemption of local regulatory authority in many states across the country. This creates opportunities for local governments to use their long-standing proprietary powers to supply electricity to their citizens as a means to meet many of the same economic, environmental protection, and social and racial equity goals they have historically attempted to achieve through traditional regulation. This analysis also provides a new perspective on the renewed scholarly debates over “localism” and shows how local control over power systems can counteract historic parochialism concerns associated with renewable energy projects that are critical to a U.S. clean energy transition
What Property Does
Get PDFFor centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new category of “evolutionary reliance” is at the heart of core property doctrines like adverse possession, waste, and the rule against perpetuities. Focusing on evolutionary reliance reveals a new vision of property, not as a bundle of sticks or a bare right to exclude, but instead as a nexus of competing and dynamic reliance interests that can change over time. This new vision has important conceptual and doctrinal consequences for common law doctrines and the Takings Clause, and it highlights the surprising dynamism and change in property