18512 research outputs found
Sort by
Sperm is Still Cheap: Reconsidering the Law’s Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence
No full textVol. 34 Issue 1Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their ex-wives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground— one party’s interests must yield to the other. To date, appellate courts in over one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a
presumption against the use of the embryos. Only twice in twenty appellate cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 129 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests
The Pledging World Order
No full textVol. 48There is an emerging world order characterized by unilateral pledges
within a legal or “legal-ish” architecture of commitments. The pledging world
order has materialized in the international legal response to climate change and
in other diverse sites. It crosses and blurs the public-private divide. It erodes
distinctions between multilateralism and localism, law and not-law, and progress
and stasis. It is both a symptom of and a contributor to the dismantling of the
Westphalian and postwar orders. Its report card is mixed: While pledging can be
highly ineffective as a legal technology, the pledging world order may respond
to some legitimacy concerns that attach to earlier orders. And this may be the
best available method to respond to important global commons problems like
climate change, biodiversity loss, orbital debris, and other emerging issues.
This Article makes three principal contributions. First, it identifies
pledging as a treaty design choice and contrasts it with a variety of standard
forms of international lawmaking. Second, it casts pledging as a trans-regime,
trans-substantive ordering device that appears both inside and outside of law, in
public and private sites, and at all levels of organization. Third, it identifies
features of the world order that pledging reflects. Specifically, the pledging
world order privileges function over status, departs from the top-down methods
of deep cooperation common to the postwar legal order, and embraces a form of
coordinated autonomy. Reformers might make design choices to improve this
order, try to reclaim features of older orders, or reject both paths and turn to
something new
Work Disguised as Leisure, Leisure Disguised as Work: The Roots and Consequences of the Bifurcated Economy
No full textVol. 34:2This Article argues that the framework laid out in the post-Marxist scholar André Gorz’s 1989 book on the alienation inherent in a system focused on efficiency, Critique of Economic Reason, provides a valuable approach for understanding the alienation that inheres in the unequal modern economy, as well as the roots of the legal-political structure that undergirds that inequality. The Article first describes Gorz’s understanding of how the rise of quantification and economic reason left modern work patterns deeply alienating, and how incentivizing long hours of unfulfilling work through “compensatory consumption” and an “ideology of work” led to the bifurcation of society into elite and “servile” classes. The Article then updates Gorz’s model to analyze the rise of several phenomena that represent a fuller extension of this bifurcation: the gig economy, which embodies Gorz’s notion of “disguising private activities and leisure activities themselves as work and jobs”; and what this Article terms “totalizing firms,” which conversely disguise work as leisure. The Article next discusses how economic reason has reinforced its hegemony, both by undermining the potential for political solidarity and through its entrenchment in the legal apparatus. Finally, the Article turns to how reorienting the labor movement and economic policy toward a focus on free time could challenge economic reason
Commission Chairs
No full textVolume 40, Issue 1Since 1950, Congress has granted chairs of many multimember commissions chief-executive authority as a way to increase administrative efficiency. Although it intended to maintain the ability of commission majorities to dictate policy, it inadvertently strengthened the authority of chairs to such an extent that majorities cannot enact their preferred policies without their chair’s cooperation. Using their agenda authority and their authority to direct staff, chairs dictate which policy documents staff develop and which items receive a vote, meaning that a commission majority cannot enact policy if its chair prohibits staff from drafting a rule or refuses to allow a vote to occur. Despite this shift, it is common among scholars and judges to think of commissions as bodies of equals, resulting in applications of the unitary executive theory that fail to appropriately take into account the substantial amount of power chairs wield.
This Article is the first comprehensive study of the authority of commission chairs, and it examines the statutes and power dynamics scholars routinely ignore. Using a novel dataset of all federal executive-branch commissions, this Article finds that the majority of commissions operate under a “strong-chair” model, while associate commissioners in fewer than one-in-five commissions have any statutory authority to restrict their chairs’ actions. Using this data, it evaluates the effects of the strong-chair model on commission governance and offers several changes that, if made, could give associate commissioners more control and supervisory authority over the agencies. Doing so would return chairs to their original role as officials who simply keep the agencies operating efficiently and ensure that majority rule drives commission actions. The Article then evaluates this research’s implications for doctrinal applications of the unitary executive theory. Because presidents appoint commission chairs, this research suggests that presidential control of independent agencies is far less attenuated than proponents of the unitary executive theory presently contemplate
Equitable Interoperability: The “Supertool” of Digital Platform Governance
No full textThis Article is concerned with competition in digital platform markets where network effects are strong. As is widely acknowledged, these markets have an inherent tendency towards concentration, leaving consumers with little competition in the market. We explain how interoperability regulation can help stimulate competition in the market in a way that benefits consumers. There are different types of regulations that involve different levels of regulatory control of firms’ strategies and products. Interoperability is a form of regulation that is less intrusive than many others and is particularly suited to digital business models and fast changing digital technology. The report solicited by the European Commission on “Competition Policy for the Digital Era” (the Vestager Report) made this point in 2019,1 and we build on it here. Policy tools in this area include data portability and open standards, as well as interoperability. We will distinguish among these tools below, but we note here that the focus of this Article is on interoperability
The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation Reva B. Siegel
No full textIn Dobbs v. Jackson Women's Health Organization, the Roberts Court claimed authority to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs-history that ties Dobbs's history-and-tradition method to the defense of segregation
Social Reproduction in and of Feminist Legal Theory
No full textVol. 34.2:22My reflections on the subject of “origins” begin with social reproduction in feminist activism and thought. This topic is more
commonplace in feminist scholarship outside of the legal academy. Feminist sociologists, political philosophers, and historians define social reproduction as the “various kinds of work—mental, manual, and emotional—aimed at providing the historically and socially, as well as biologically, defined care necessary to maintain existing life and to reproduce the next generation.” Social reproductive labor includes unpaid care work within families, kin networks, and communities as well as various forms of paid work. Such labor divides along racial as well as gender lines. The law’s role in distributing, rewarding, and regulating social reproductive labor is pivotal to the construction of gender, race, and class identities and inequalities
Terceirizadas, Centered: A Critical Analysis of Outsourcing and Gender and Racial Hierarchies in Brazil
No full textVol 34 Issue 1This article presents a critical reading of the Brazilian Supreme Court decision in Arguição de Descumprimento de Preceito Fundamental (“ADPF”) 324—the case in which the prohibition of outsourcing was declared unconstitutional. In this decision, the majority opinion is underpinned by a neoliberal logic and relies on an argument that abuses that might occur in outsourcing are mere distortions. The minority opinion would allow the outsourcing of only “non-core” activities (which, in Brazil, correspond mostly to care-related work). Building on fem/race and class crit methods—that is, reflecting about the law by looking to the bottom, centering black female outsourced workers (“terceirizadas”)—the paper claims that both the majority and the dissenting opinions pose serious problems. Regarding the majority opinion, first, I use terceirizadas as a focal point to challenge the court’s neoliberal logic. Using terceirizadas as a point of departure shows that the neoliberal adoption of a universal individual is an
abstraction that conceals how power relations operate on the ground and, in doing so, legitimates and perpetuates oppression. Second, the decision adopts a formal equality approach, which obscures how outsourcing is a fruit of, permeated by, and perpetuated by subordination. Regarding the dissenting position, the maintenance of the distinction between core and non-core
activities derives from a non-intersectional look at the problem. It assumes a universal “worker,” missing the gender and racial aspects that create the possibility of different treatment in the first place. The paper then advances a possible path for the future, proposing a provisional antisubordination-based argument to argue for the unconstitutionality of outsourcing in Brazil
Opening a Federal Reserve Account
No full textVol. 40:453To open bank accounts, new customers provide personal information and make a deposit. Within a few minutes (or perhaps a few days), new customers get access to payment services. For many years, the process financial institutions used to open accounts at Federal Reserve Banks was similar. Eligible banks filled out a one-page form and within a week received an account allowing them access to the Federal Reserve’s payment systems. Recently, however, Federal Reserve Banks have spent years considering account requests from novel banks.
This Article examines the Federal Reserve’s process for evaluating requests for accounts. Using interviews, court documents, and other sources, it analyzes recent account requests from a cannabis credit union, a narrow bank, a public bank, a cryptocurrency custody bank, and a trust company. These requests reveal a lack of transparency and consistency. Most district Federal Reserve Banks do not explain how institutions should apply for accounts. It is not clear who decides whether to open the account. While the Federal Reserve Banks all evaluate risk associated with accounts and payments, the twelve Reserve Banks may not have the same risk tolerances. Decisions may be inconsistent. Even getting a decision can take years. Unfortunately, the Federal Reserve’s recently adopted guidelines, which consist primarily of a risk identification framework, do not fix these problems
Sunsets Are for Suckers: An Experimental Test of Sunset Clauses.
No full textSome have suggested that including sunset clauses in legislation makes laws easier to pass, in part because sunsets may facilitate bipartisan compromise. We use a randomized experiment to assess whether sunset clauses actually change people's support for legislation, along with other compromise beliefs such as the perception of sponsors' good faith and the likelihood that the law will be effective. We randomly assigned 1,639 U.S. adults to read laws with one of three sunset conditions (none, standard sunset, or conditional sunset that would be contingent on an evaluation of the law), one of two topic areas (drug overdoses and Medicaid beneficiary health), and one of three political valences (neutral, liberal, or conservative). Participants estimated their support for the law to which they were assigned, and they identified their own political leanings and party affiliations. Sunsets did not increase overall support for laws, contrary to prior suggestions of an overall compromise effect. But in an interaction between sunset and political valence, we found that sunsets increased support for conservative but not liberal legislation. Subgroup findings confirmed liberals' tendency to increase their support for conservative laws that contained a sunset clause (either standard or conditional). Conservatives, however, did not increase their support for liberal policies in the presence of sunset clauses. This asymmetry gives rise to what we characterize as a "sucker" effect--a willingness to compromise that is not reciprocated, even if these effects are unconscious. We explore possible explanations for this finding and consider whether debiasing strategies may be needed when sunset clauses are used