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Abstract:
This is an edited transcript of Crafting a Scholarly Persona, the Scholarship Section's program from the AALS Annual Meeting in 2007. During this program, three established scholars, Ian Ayres, Paul Robinson, and Carol Sanger, discussed their individual career paths - How they chose their article topics, what the goals of their scholarship are, how they view their research agendas, etc. The discussion was intended roughly to mirror Bravo's Inside the Actor's Studio.

scholarship, research agenda

Abstract:
This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use of Safe Havens less likely.

The heart of the argument, however, focuses not on what Safe Haven laws fail to accomplish, but on what they achieve. This Article argues that these laws are properly understood within a larger political culture, one increasingly organized around the protection of unborn life, and that identifies itself as the culture of life. By connecting infant life to unborn life and infanticide to abortion, Safe Haven laws work subtly to promote the political goal of the culture of life: the reversal of Roe v. Wade. The laws' primary achievements may therefore be less criminological than cultural. Through an investigation of state legislative histories, this Article suggests that the rhetoric and politics of abortion set the stage for the quick enactment of Safe Haven laws nationwide. It also examines the legislative and social mechanisms by which unwed pregnancy and abortion have been taken off the table, creating a psychological crisis that leads some young women to fatally abandon their newborns.

Safe Haven, neonaticide, infanticide, culture of life, abortion, abandonment

Abstract:
Several state legislatures now require that before a woman may consent to an abortion, she must first undergo an ultrasound and be offered the image of her fetus.The justification is that without an ultrasound, her consent will not be fully informed. Such legislation, the latest move in abortion regulation, supposes that a woman who sees the image will be less likely to abort. This Article explores how visual politics has combined with visual technology, and how law has seized upon both in a campaign to encourage women to choose against abortion. While rarely analyzed, the significance of seeing, or what one court has called sensory and contemporaneous observance, in fact appears throughout the law. This Article develops a visuality of law, focusing specially on the treatment of fetal imagery.

Drawing upon medical and ethnographic literature on sonography, this Article situates the regulatory appeal of mandatory ultrasound within a preexisting visual familiarity with the fetus. I argue that while a welcome and rewarding experience in the context of wanted pregnancies, ultrasound becomes pernicious when required by law in connection with abortion. The argument I develop is that not only is an abortion decision itself protected, but so is the deliberative path a woman takes to reach that decision.

Mandatory ultrasound intrudes upon that protected area of decisionmaking in several respects. First, simply by virtue of having an ultrasound, a pregnant woman is promoted into the category of mother and it is against this conscripted status that she must proceed. Second, unlike other compulsory forms of abortion disclosure, the statutes require the woman to use her body to produce the very information intended to dissuade her from pursuing an abortion. The resulting fetal image is intended as a self-evident statement about the meaning of human life.

But characterizing the fetus as a child, as most ultrasound statutes do, is a political description, not a scientific one. It confuses medically informed consent with what I identify as morally informed consent, that realm of personal considerations that are a woman's alone to determine. Imbued with indelible social meaning, the mandatory ultrasound requirement replaces consent with coercion - not about the ultimate decision, but about how a woman chooses to get there.

abortion, legislation, constitutional theory, informed consent, visuality and law, ethics, reproductive rights

Abstract:
There has been a frenzy of legislative activity aimed at nailing down the legal definition of marriage to make sure that there will be no more nonsense about same-sex monograms or same-sex marriage applications. In an effort to slow down the frenzy, and to encourage those within the academy to think harder about the on-going problem of what to do about marriage, Professor Edward Stein has posed a straightforward question: Should civil marriage simply be abolished? In this mini-symposium, Professors Edward Zelinsky and Daniel Crane have provided two answers to his question: yes and yes.

Although I am a Contract Law enthusiast, both arguments began to make me nervous about abolishing civil marriage. I therefore want to explain why, after reading these intriguing papers, I have become an anti-abolitionist, or at least a contract skeptic. I organize my remarks around two propositions. The first is that Professor Zelinsky has more faith in the ability of contract law to organize intimate relationships than I do. I will use his paper to talk about a few general problems of contracting for marriage. Proposition number two is that Professor Crane has too little faith in law and I have too little faith in religion to justify returning marriage to an exclusively religious domain, however valid the historical support may be. I will use Professor Crane's paper to discuss the particular perils, of privatizing to religion, for women and same-sex couples.

marriage, civil, contracts, same-sex

Abstract:
Thirty-four US states currently require pregnant minors either to notify their parents or get their consent before having a legal abortion. The Supreme Court has upheld the constitutionality of theses statutes provided that minors are also given an alternative mechanism for abortion approval that does not involve parents. The mechanism used is the 'judicial bypass hearing' at which minors persuade judges that they are mature and informed enough to make the abortion decision themselves. While most minors receive judicial approval, the hearings intrude into the most personal aspects of a young woman's life. The hearings, while formally civil in nature, can be punitive in tone. Parental involvement statutes are often couched in the language of family communications and protecting minors. They are politically popular because they offer politicians the chance to be pro-life, pro-choice, and pro-family all at once. This paper argues that parental involvement statutes are less concerned with developing nuanced policies to improve the quality of teenage health or decision making than with securing a set of political goals aimed at making abortion harder to get, restoring parental authority, and punishing girls for having sex.

abortion, teenage, consent,sexuality, pro-life, pro-choice, family, parental, parents

Abstract:
What is the legal significance of the social significance of things? How does the law comprehend, affect, reinforce, transform, and undermine the relations between persons and things? In this Essay I examine these questions by looking at connections between one particular thing - the automobile - and one particular group of persons - women. How is it that the automobile has come to serve women - as drivers, passengers, as purchasers - less well than men? After all, in some sense a car is a gender neutral machine seemingly capable of taking drivers of either sex equal distances. But how long after the first one was welded together did it shed any pretense of such neutrality? How did that transformation come about and what has law made of the results?

property, gender, social significance, materialism

Abstract:
For several years now I have begun my first-year contracts course with the 1988 New Jersey Supreme Court case In the Matter of Baby M. In this essay, I want to explain why. I offer the explanation in the spirit of modest proselytizing, recognizing that many of us already have a favored method or manner into the course: some introductory questions we pose before leaping into (or over) the introductions already provided by the editors of the many excellent casebooks available. But I have found that Baby M works extremely well in ways that others may want to consider. It provides an introduction to all the central topics and themes typically covered in a contracts course, and it does so with just the right mixture of familiarity and intrigue. The familiarity is with the facts of the actual case (though the student memory shrinks with each passing year) and with the general structure of surrogacy arrangements. The intrigue develops as students glimpse that even the familiar is more complicated when viewed through a legal lens.

contracts, introduction, Baby M, teaching

Abstract:
In this essay I argue that through the powerful coincidence of popularity, genre, and theme, Presumed Innocent and The Good Mother reinforce notions about the relation between good sex and bad mothering, and advance serious, nonfiction messages for women about law and sex.

law, sex, motherhood, mothers, punishment

Abstract:
This Article reports on a mechanism for removing children in conflict with their parents: statutory emancipation, the process by which minors attain legal adulthood before reaching the age of majority. Statutorily emancipated minors can sign binding contracts, own property, keep their earnings, and disobey their parents. Although under eighteen, they are considered as being over the age of majority in most of their dealings with parents and third parties. Thus, while emancipated minors can sign contracts and stay out late, their adult status also means that their parents are no longer responsible for the minors' support. To understand why minors choose to restructure their relationships with their parents and to redefine their status within society through the mechanism of emancipation, we undertook an empirical study on the use of emancipation in two northern California counties. The results of that study are reported here.

minors, emancipation, contracts, parents

Abstract:
...
Objections to the reasonable woman standard [for sexual harassment] combine doctrinal concerns with practical ones. The doctrinal question is something like, Whatever happened to gender neutrality? How are men supposed to know what conduct strikes their victims as intimidating, hostile, or offensive? After all, women are so sensitive - take Anita Hill. Why, as men often ask, can't women be more reasonable? ...

The answer is that at least in determining what behavior is sexually harassing, women are not like men. As many feminists have explained, women commonly experience as fearful what men find fun. ...

sexual harassment, feminism, Anita Hill, gender neutrality

Abstract:
In this review, Carol Sanger examines the recent surge of interest in the lives of early women lawyers. Using Jane Friedman's biography of Myra Bradwell, America's First Woman Lawyer, as a starting point, Professor Sanger explores the complexities for the feminist biographer of reconciling for herself and for her subject conflicting professional, political, and personal sensibilities. Professor Sanger concludes that to advance the project of women's history, feminist biographers ought not retreat to the comforts of commemorative Victorian biography, even for Victorian subject, but should instead strive to present and accept early women subjects on their own complex terms.

lawyers, women, biography, feminism, myra bradwell

Abstract:
We are all familiar with the process. At its best, law review editing, like editing elsewhere in the academic and literary worlds, results in a piece improved in style, structure, and content. Too often, however, law review articles are not so much improved as simply changed, sometimes hundreds of times within a single manuscript.

My purpose here is not to complain line by line about various dissatisfactions with the editing of my little review. I accept that authors, like teenagers convinced the world is focused on their every imperfection, are more aware of perceived deficiencies in an article than any reader is likely to be. Nonetheless, many of us have spent many hours resuscitating sentences, paragraphs, lines of argument, and sometimes whole manuscripts that have been edited nearly to death. What I want to discuss is why this sort of thing happens so regularly and what we might do about it.

editing, law review, student, scholarship, journals, courts, academy

Abstract:
In this article I want to challenge the existing rules of maternal engagement and reconsider how we think about separations between mothers and their children as a matter of cultural inquiry and as a matter of law. Specifically, I examine the ways in which law regulates this complex but not uncommon aspect of motherhood and compare legal assessments about maternal decisions to separate from children with the judgments of mothers themselves. My argument is that the present scheme of regulation sustains social understandings regarding mother-child separations with little attention to the circumstances of mothers' lives that prompt their decisions to separate in the first place. Instead, maternal separations are quickly marked as evidence of self-interest and assumed antithetical to the welfare of children.

maternal, separation, children, regulation

Abstract:
Regulation of ECT has generally focused on whether the patient or his representative effectively consented to the treatment. The highly intrusive nature of ECT and the unique circumstances of those patients who are likely to receive it create particularly difficult legal issues concerning the validity of the patient's consent. This Note will examine the various methods that are available to protect the rights of patients for whom ECT is proposed. After briefly explaining the nature of the therapy, the Note will discuss the efficacy of judicial remedies with respect to both competent and incompetent patients. It will argue that, because of the peculiar nature of ECT, special procedures that ensure the existence of consent to state-administered ECT may be constitutionally required. It will then address specific procedures legislatively enacted by several states for the regulation of ECT and will assess their constitutional limitations, with emphasis upon the problem that a regulatory scheme, in its effort to protect patients from unconsented therapy, may interfere with the right of patients to consent to privately administered ECT.

electroconvulsive therapy, ect, consent, state-administered, constitution

Abstract:
[A]doption law and practices are guided by enormous cultural changes in the composition and the meaning of family. As families become increasingly blended outside the context of adoption - with combinations of blood relatives, step-relatives, de facto relatives, and ex-relatives sitting down together for Thanksgiving dinner as a matter of course - birth families and adoptive families knowing one another may not seem so very strange or threatening at all. There will simply be an expectation across communities that ordinary families will be mixed and multiple. With that in mind, we should hesitate before establishing embeddedness as the source of mother's authority over her child's placement. It is a concept that only sounds cozy in great part because it simplifies the relational complexities of the world in which we live.

adoption, placement, mixed family, embeddedness, mothers

Abstract:
In this Symposium, feminism has been invited to take a place alongside such well-established disciplines as history, philosophy, and economics in a consolidated exploration of interdisciplinary approaches to law. While sincerely extended - the feminist entry is not the only one that women are writing - and generously unbounded as to scope, ... the invitation raises what for many is a prior question: Is feminism a discipline at all?

As the feminist delegate to this interdisciplinary Symposium, I have therefore taken as my initial task consideration of the issue implicit in the invitation: feminism's credentials as a discipline. I explore the contours and curl of feminism's petals in the context of the traditional criteria used to bestow disciplinary status on a subject, thus qualifying it for subsequent interdisciplinary adventures. My aim, however, is less to come up with an imperial thumbs up or thumbs down on feminism as a discipline than to think hard about the definition, authority, and functions of disciplinarity in relation to feminism.

feminism, discipline, law

Abstract:
My basic argument is this: Motherhood is a central but confusing icon within our social structure. It is at once domination and dominated, much as mothers are both revered and regulated. The reverence and regulation are not so much in conflict as in league. The rules remind women of how to behave in order to stay revered. This reverence is something more than a fan club for mothers. It matters in such practical and concrete ways as keeping one's children, having credibility in court, getting promoted at work, and so on.

motherhood

Abstract:
The Immigration Reform and Control Act of 1986 (IRCA), Congress' attempt to clean up the problem of illegal immigration in the United States, puts a great number of undocumented alien families, mostly Mexican, to a hard test. Under IRCA's amnesty provisions, every alien must individually meet the eligibility requirements, such as having lived in the United States since before January 1, 198,. But many aliens who satisfy those requirements have spouses or children who do not. Thus while eligible aliens may adjust to a legal immigration status, their ineligible family members must either leave the United States or remain illegally, subject to deportation when apprehended.
...

immigration,residency,aliens,family,spuses,children

Abstract:
Much attention has been paid to the harm women suffer when they are unable to get abortions, or, from an anti-abortion perspective, what women are said to suffer by virtue of having abortions. There has, however, been little discussion of the harms women suffer by virtue of abortion regulation, even when they are, in the end, able to obtain a legal abortion. What is the relation between the detailed regulation of abortion decisions and the right of women to be treated with dignity regarding such decisions?

This Article considers the harms to dignity inflicted on one category of women - pregnant minors - by virtue of their participation the judicial bypass process. Thirty four states now requirement that a minor wants an abortion without first involving her parents must petition a judge and participate in a hearing at which the judge decides if she is mature and informed enough to make an abortion decision herself. By compelling narrative, the hearings produce a distinct sort of harm: the humiliation of vulnerable minors required to testify about their sexual relationships, their pregnancy, and the intricacies of home life that decided them to take their chances in court. I develop the argument that bypass hearings produce a civil version of what Malcolm Feeley identified in the criminal context as “process as punishment.” Several features of the hearings work to bring this about. These include a structure of stealth inherent in the proceedings, and the testimonial demands of a hearing too often focused on the moral misconduct (sex, abortion, general sneakiness) of the petitioners.

Bypass hearings harm the legal system as well as individual petitioners. The Article discusses the problem of sham hearings (akin to fault based divorce proceedings), the problem of forum exclusion and law’s legitimacy, and the relation of dignity to the “luck of the draw” aspect of judicial assignment. The Article focuses specially on the election of judges and the politics of abortion in their selection and performance.

legal process, abortion, narrative, judicial election, minors, dignity, hearings