Current Issue

Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront

27 Aug 2014 01:32pm Michele Goodwin 

Increasingly, state statutes are the primary means through which legal norms affecting low-income pregnant women's autonomy, privacy, and liberty are introduced and shaped. Arrests, forced bed rests, compelled cesarean sections, and civil incarcerations of pregnant women in Alabama, Florida, Indiana, Iowa, Mississippi, New Mexico, South Carolina, Texas, Utah, and Wisconsin merely scratch the surface of a broad attack on pregnant women. This recent era of maternal policing reshapes physician and police interactions with pregnant women accused of violating fetal protection laws (FPLs); inspires (and sometimes requires) medical officials to breach confidentiality when treating pregnant women; motivates selective prosecution against poor women, particularly those of color; and evinces improper judicial deference to medical authority rather than law.

This Article makes three claims. First, it argues that doctors breach what should be an unwavering duty of confidentiality to pregnant patients by trampling the well-established expectations of the patient-physician relationship. Second, it argues that even if states' chief goal is to promote fetal health by enacting protectionist laws, punitive state interventions contravene that objective and indirectly undermine fetal health. Finally, the Article argues that FPLs unconstitutionally situate pregnant women as unequal citizens by unjustly denying them basic human and legal rights afforded other citizens.


“Unelected Faculty”: Schuette v. Coalition and the Limits of Academic Freedom

12 Oct 2014 01:53pm Michael Kagan 

Schuette v. Coalition to Defend Affirmative Action, the Supreme Court's 2014 decision on race in university admissions, attracted considerable attention due to the sharp disagreement about race consciousness between Chief Justice John Roberts and Justice Sonia Sotomayor. But behind the evident division on the Court about the race, a close reading of Schuette indicates a near consensus among the justices that public universities and their faculties have far less constitutional protection than many may assume. Schuette should be taken as a warning to public universities that their autonomy and independence may be illusions, subject to the changing preferences of legislatures and voters.    

The Essential Facilities Doctrine: The Lost Message of Terminal Railroad

08 Oct 2014 01:19am Stephen M. Maurer and Suzanne Scotchmer 

Scholars and judges have long debated whether antitrust law requires dominant firms to share so-called "essential facilities" with rivals. In her final paper, the late Professor Suzanne Scotchmer and coauthor Stephen M. Maurer argue that the doctrine should return to its historic focus on industries where sharing promises important -- and otherwise unachievable -- synergies. They explain how a reformed doctrine can codify this principle and still be consistent with the existing case law. Their analysis is particularly relevent to the Digital Economy where rivals routinely use the same shared networks, platforms, and interoperability standards.    

Note: The original PDF of the article was corrected 10/12/2014. We regret any inconvenience.

Defining the Whistleblower Under Dodd-Frank: Who Decides?

12 Aug 2014 07:15pm Mystica M. Alexander 

The SEC and the Judiciary are at odds over whether an individual must report potential securities law violations directly to the SEC in order to qualify as a whistleblower under the Dodd-Frank Act. This Essay examines the statutory language at the heart of the conflict, the SEC regulation that potentially clarifies the scope of whistleblower protection, and the SEC's authority to interpret the Act. Ultimately, the author concludes that the SEC's expansive approach is more in line with the objectives of securities law enforcement.

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