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Abstract:
Last year, Maryland became the first state to adopt the Agreement Among the States to Elect the President by National Popular Vote. It was joined early this year by New Jersey. If enough states sign on to this agreement to control the Electoral College, they will all pledge their electoral votes to the presidential candidate who wins the national popular vote, without regard to which candidate won in each individual state. The compact would effectively supersede the Electoral College and implement popular election of the president without amending the Constitution. Political supporters of the Agreement have been curiously reticent to discuss the validity of the Agreement under Article I, section 10. Although some similar proposals would be invalid under section 10, the Agreement adopted in Maryland does not abuse the structure of the Electoral College, nor does it disrupt the balance of power among the states or between the states and the national government. The Agreement is therefore permissible and probably does not even require congressional consent.

Electoral College, national popular vote, interstate compact, bloc voting, unit rule

Abstract:
This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, I argue that a gestational mother has a constitutional claim to be recognized as a legal parent.

I begin with the "unwed father cases" from the 1970s. Despite believing that natural sex differences justified distinctions in parental rights, the Court crafted a test giving men parental rights if they established relationships with their biological children. I argue that this test was modeled on what the Court saw as the essential attributes of motherhood. I offer this reading as an alternative to the standard feminist critique that the unwed father cases are notable only for their zeal to enforce the traditional family. I also show how the theoretical approach of these cases supports feminist claims for equal treatment despite biological difference (such as accommodation of pregnancy).

Turning to current debates, my focus is on divided motherhood: usually surrogacy contracts, but also embryo mix-ups at fertility clinics. Rather than following existing precedent on parental rights, the law of high-tech parenthood is tending sharply in the direction of denigrating gestation, defining parenthood exclusively in terms of genes or contracts. I show that conferring parental rights on gestational mothers would produce better outcomes and be more consistent with the best aspects of existing constitutional precedents.

equal protection, real differences, unwed fathers, surrogacy, surrogate mothers

Abstract:
This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the “health exception” to abortion regulations to show why equality arguments are needed - because our legal tradition's conception of liberty is based on male experience, and we have no theory of basic human rights grounded in women's reproductive experiences. Next, however, the Article shows that equality arguments, although necessary, can undermine women’s reproductive freedom because they require that pregnancy and abortion be analogized to male experiences. The result is that equality arguments focus on either the bodily or the social aspect of pregnancy, to the detriment of the other. Most recently, for example, Jack Balkin has argued that there are “two rights” to abortion, one based in the right to bodily integrity and one based in the right to avoid motherhood. This is the wrong way to theorize pregnancy. The body-focused arguments fail to resonate with the reasons most women seek abortions, and the role that pregnancy and abortion play in women’s lives. The burden-of-motherhood arguments imply a sunset clause on abortion rights and lend credibility to arguments for a right to “male abortion.”

This division between the body and the social suggests that women’s liberty can be protected only by breaking it into pieces that have analogs in men’s experiences. When men are the norm, women’s rights become derivative. A woman-centered vision of these rights would stand more firmly on its own footing. The Article proposes a relationship model for theorizing pregnancy as a starting point for developing a liberty framework directly from women’s experiences.

abortion, equality, liberty, due process, equal protection, motherhood, pregnancy

Abstract:
The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de facto inequality. Recent developments in affirmative action cases, however, have made it increasingly plausible for the conservative plurality to claim that substantive equality is not even a legitimate state interest. The Article demonstrates that this claim is nonetheless a radical departure from existing precedent across a spectrum of equal protection cases. It explores the consequences of the plurality's view, including the threat to remedial programs ranging from Title VII's disparate impact rules to the Family and Medical Leave Act. It also suggests some possibilities for developing the opposite view into a more robust and substantive theory of equality enforceable under the Equal Protection Clause.

Abstract:
In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical consequences for the relief available to plaintiffs.

ENDA, Title VII, gender, sexual orientation, discrimination, civil rights, transgendered rights

Abstract:
This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.

teaching, constitutional law, segregation

Abstract:
Anticipating the decision in United States v. Morrison (2000), holding that the civil rights remedy of the Violence Against Women Act was not a legitimate exercise of Congress's power to enforce the Equal Protection Clause, this article argues that the Act could be upheld as an exercise of Congress's authority under the Citizenship Clause of the Fourteenth Amendment. Congress's authority under the Citizenship Clause is analogous to its authority under the "badges and incidents" doctrine of the Thirteenth Amendment, which allows Congress to provide protection from discriminatory violence. This theory would also guide interpretation of the act to focus on the private harm inflicted by private domination of another individual, rather than bootstrapping this concern onto a purported concern for failures by state law enforcement.

Women, equal protection, citizenship, section 5, feminism, violence against women, fourteenth amendment

Abstract:
In the upcoming Term, the Supreme Court will consider a case raising the question whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts state tort law, or only state positive law. FIFRA, under which the Environmental Protection Agency regulates pesticide labels, has an express preemption clause and clearly preempts state positive law on labeling. The question presented is whether and to what extent it also preempts state tort law, particularly claims for failure to warn.

The Court's precedent on preemption of state tort law is erratic, but for some reason, the pro-preemption view has been much more popular with lower courts. The view that FIFRA broadly preempted state tort law was unanimous for several years, until the EPA filed an amicus brief in a California case arguing against preemption. That brief was rejected in most courts but accepted in Montana and Oregon. Under President Bush, however, the EPA reversed its preemption and now argues in favor of preemption - which in practice means near-complete immunity for pesticide manufacturers against claims by consumers or bystanders. This paper argues that the Supreme Court should hold that even though FIFRA preempts states from passing laws about what should be on a pesticide label, FIFRA does not preempt tort claims for failure to warn about the dangers of the pesticide. In doing so, the Court should clarify the operation of various presumptions it is adopted for when to find state law preempted by a federal statute.

preemption, FIFRA, Sprietsma, common law, tort

Abstract:
This chapter will be part of a collection on international feminist constitutionalism, forthcoming from Cambridge University Press. The chapter proposes a feminist theory of reproductive freedom grounded in U.S. Supreme Court precedent and applies the theory to abortion rights and to parental rights in the context of surrogacy agreements.

reproductive rights, abortion, surrogacy, parental rights, equal protection, equality, feminism