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Full-Text Articles in Law
Disability And Reproductive Justice, Samuel Bagenstos
Disability And Reproductive Justice, Samuel Bagenstos
Articles
In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written …
Dignity And Civility, Reconsidered, Leah Litman
Dignity And Civility, Reconsidered, Leah Litman
Articles
People often talk about the Chief Justice, Justice Kagan, and Justice Breyer as the institutionalists on the modern Supreme Court. And that’s true, they are. Those Justices care about the Court as an institution and the Court’s reputation. They do not want people to look at the Court as a set of politicians in robes; and they do not want people to see judges as having ideological or partisan agendas. That is how they think of themselves, and they are willing to make compromises to maintain that image of the Court, and to set aside their personal beliefs in order …
Potential Life In The Doctrine, Leah Litman
Potential Life In The Doctrine, Leah Litman
Articles
In their article, Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin seek to shore up the doctrinal basis for a woman’s constitutional right to end her pregnancy. While Chemerinsky and Goodwin are partly concerned about the status of abortion rights in the United States because of President Donald Trump’s promise prior to taking office to appoint Justices to the Supreme Court who will overturn Roe v. Wade, they also maintain that some of the threat to abortion rights arises from an uncomfortable tension in the doctrine that recognizes states’ interest in potential life. I agree with Chemerinsky and …
Hard Cases And The Politics Of Righteousness, Carl E. Schneider
Hard Cases And The Politics Of Righteousness, Carl E. Schneider
Articles
The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal …
Looking Back On Planned Parenthood V. Casey, Christina B. Whitman
Looking Back On Planned Parenthood V. Casey, Christina B. Whitman
Articles
Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar's articles on coerced confessions, Terry Sandalow's essay on affirmative action, Joe Sax and Phillip Hiestand's description of the emotional impact of living in a slum, Martha Chamallas and Linda Kerber's demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, and, most …
Moral Discourse, Bioethics, And The Law, Carl E. Schneider
Moral Discourse, Bioethics, And The Law, Carl E. Schneider
Articles
Dan Callahan follows a distinguished tradition when he uses the phrase "moral discourse" to describe the law's work. The frequency with which that image is deployed suggests its resonance and even rightness: When we think about the way society considers moral issues and develops moral positions, it can be useful to imagine the law as one of many social institutions that contribute to a social discussion. Nevertheless, this image is misleading. At least for our (graying and balding) genera- tions, the law is regarded as a worthy participant in American moral discourse preeminently because of its part in the civil …
Judging Girls: Decision Making In Parental Consent To Abortion Cases, Suellyn Scarnecchia, Julie Kunce Field
Judging Girls: Decision Making In Parental Consent To Abortion Cases, Suellyn Scarnecchia, Julie Kunce Field
Articles
Judges make determinations on a daily basis that profoundly affect people's lives. On March 28, 1991, the Michigan legislature enacted a statute entitled The Parental Rights Restoration Act (hereinafter "the Michigan Act" or "the Act"). This statute delegated to probate court judges the extraordinary task of deciding whether a minor girl may have an abortion without the consent of a parent. Nothing in law school and little in an average judge's experience provide a meaningful framework for making such a decision. Although many commentators, including the authors, argue that decisions about abortion should be left to the woman regardless of …
Rewriting Roe V. Wade, Donald H. Regan
Rewriting Roe V. Wade, Donald H. Regan
Articles
Roe v. Wade is one of the most controversial cases the Supreme Court has decided. The result in the case - the establishment of a constitutional right to abortion - was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court's opinion. Others before me have attempted to explain how a better opinion could have been written. It seems to me, however, that the most promising argument in support of the result of Roe has not yet been made. This essay contains my suggestions for "rewriting" Roe v. Wade