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An Exegesis of the Meaning of \u3cem\u3eDobbs\u3c/em\u3e: Despotism, Servitude, & Forced Birth
Full text linkThe Dobbs decision has been leaked. Gathered outside of New York City\u27s St. Patrick\u27s Old Cathedral, pro-choice protesters chant: Not the church, not the state, the people must decide their fate.
A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: l am the people, l am the people, l am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you\u27re having my baby.
Despicable but not unexpected,³ this man\u27s comments provide insight into the meaning of the Supreme Court\u27s decision in Dobbs v. Jackson Women\u27s Health Organization and the conditions it creates for women, girls, and others capable of pregnancy. Despite the Supreme Court\u27s assertions that it is returning the decision of abortion back to the people, a disingenuous assertion from the start, American society currently finds itself facing judicial opinions about whether pregnant people are even allowed to access modern medicine – the abortion medication (mifepristone) - to exercise control over their own bodies and lives.
This Article is an exegesis of the statements of this man pontificating on the Cathedral steps. His statements and the instincts that support them tell us a great deal about the condition of U.S. society, the state of our democracy, and the relationship of both to the concrete meaning of Dobbs and its theory of life. ⁷ The Dobbs decision facilitates conditions that encompass the forced continuation of a pregnancy, forced birth, involuntary servitude, disturbing outcomes of permissive rape, and the false idolatry of adoption. These conditions have real consequences for women, girls, and others who are capable of pregnancy, including trans and gender-diverse people. They are eerily reminiscent of the reproductive subjugation imposed on enslaved Black women. While these conditions admittedly do not mark the chattel slavery of the past they are part of a broader notion of slavery, of involuntary servitude. And, these conditions of servitude no longer apply to just a single group of women but now extend to all those capable of pregnancy.
Postscript: Alabama Supreme Court recently ruled that frozen embryos are children thus jeopardizing invitro fertilization practices generally and families’ control over their frozen embryos, in particular
Waves of Freedom : Kant and the Right to Rescue on the High Seas
Full text linkThis Article draws upon the legal philosophy of Immanuel Kant to argue that all seafarers—from stateless migrants to billionaires on mega-yachts—possess legal rights to rescue on the high seas. These rights are of the kind legal practitioners call “human rights,” and correspond to obligations enforceable against the flag state of any Coast Guard, naval, or other “public” vessel receiving the seafarers’ distress signals. A second, corollary claim is that we must abandon the “Grotian” model of the seas as commons and view them instead as “global public goods” that the international legal order always already maintains through institutions for the public freedom of everyone, everywhere, forever
The Next Chapter of Consular Nonreviewability: \u3cem\u3eMuñoz v. U.S. Dep’t of State\u3cem\u3e, 50 F.4th 906 (9th Cir. 2022)
No full textPopulist Secularism
Full text linkThis article argues that in the context of a developing democracy, the rise of religiously oriented parties should be viewed contextually as part of an ongoing process of democratic negotiation and consolidation. Using Turkey as a case study, this article argues that religion and secularism are best viewed as parts of a symbiotic relationship, informing each other’s identity, and defining characteristics through an ongoing process of negotiation.
The article discusses commonly used concepts relevant to secularism in general and argues for the need to distinguish between the secular, secularism, and secularization as a governance project. Through a historical survey of military interventions in the political process and judicial construction of secularism, the article discusses the development of state-religion relationship from the Ottoman Empire to modern day Turkey. The surveyed events of the republican era highlight the brutal and militant nature of the secularization project, followed by the populist response in the form of over two decades of electoral victories by the Adalet ve Kalkinma Partisi (Justice and Development Party) (“AKP”) whose governance project has led to a radical reformulation of Turkish secularism.
The article also argues that even though pious populations were marginalized during the decades of militant secularization, the current shifts to a populist secularism have created new marginalized and excluded identities, including religious and ethnic minorities, LGBTQ+ populations, as well as increasing threats to gender equality and equity
Federal Common Law Stare Decisis and the Doctrine of Equitable Apportionment
No full textUnited States Supreme Court Justice Clarence Thomas erred in his concurrence to Gamble v. United States when he derived his “demonstrably erroneous” standard of stare decisis because he overlooked a significant portion of federal law: federal common law. In Gamble, Justice Thomas argued for a weak standard of stare decisis under which the Supreme Court would overrule any “demonstrably erroneous” precedent that is contrary to our written laws, regulations, and Constitution. This standard may be functional when applying positive law, but it simply cannot be maintained when confronted with matters of federal common law. Were Justice Thomas’ “demonstrably erroneous” standard to be adopted, it would leave a void in the Court’s jurisprudence. Justice Thomas derived his Gamble standard using tools of originalism. The goal of this Article, therefore, is to deploy those same tools to fill the gap by deriving a specific standard of stare decisis for reviewing and applying federal common law.
Despite the declaration in Erie Railroad v. Tompkins that “there is no federal general common law,” vestiges of federal common law remain and carry immense authoritative weight. Most recently, in November 2021, the Supreme Court extended the federal common law doctrine of equitable apportionment to apply to groundwater in deciding an interstate water dispute between Mississippi and Tennessee over a shared aquifer. Given the enormous number of interstate aquifers and diminishing water reserves, this decision by the Court has the potential to create a tremendous amount of litigation about underground interstate water resources. It is essential, therefore, that the Supreme Court decided this case in accordance with a stare decisis standard fit for federal common law. This Article concludes by applying the newly derived federal common law stare decisis standard to Mississippi v. Tennessee
