Abstract

http://ssrn.com/abstract=2352542
 


 



Interest Creep


Dov Fox


University of San Diego: School of Law

March 1, 2014

82 Geo. Wash. L. Rev. 273
San Diego Legal Studies Paper No. 13-136

Abstract:     
Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call interest creep. Interest creep is the uncritical expansion of underspecified interests like national security and child protection to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts.

This Article examines interest creep through the illuminating lens of reproduction law in which it has thrived. Courts have resolved disputes including surrogacy contracts, genetic testing torts, and property claims for lost embryos by casual appeal to the state’s interest in “potential life” that Roe v. Wade designated as the canonical kind that can override rights. My analysis of every case and statute that has invoked this potential-life interest reveals its use to mean not one but four species of government concern. These distinct concerns for prenatal welfare, postnatal welfare, social values, and social effects operate under different conditions and with varying levels of strength. I apply this novel conceptual framework to live controversies involving fetal pain, sex selection, and stem cell research. These case studies demonstrate how ordinary interpretive methods equip courts to unravel the complexity of concerns that interests like “potential life” absorb over time amidst evolving facts and competing values. More broadly, this examination provides a model for how in other areas of law, from campaign finance to affirmative action, judges and lawmakers can repair the confused decisionmaking that interest creep promotes.

Number of Pages in PDF File: 85

Keywords: judicial and legislative decisionmaking, institutional competence, social conflict, reproductive regulation

JEL Classification: D63, D72, J13, K19, K39, K49, N30, O33, O38

Accepted Paper Series





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Date posted: November 11, 2013 ; Last revised: May 5, 2014

Suggested Citation

Fox, Dov, Interest Creep (March 1, 2014). 82 Geo. Wash. L. Rev. 273; San Diego Legal Studies Paper No. 13-136. Available at SSRN: http://ssrn.com/abstract=2352542

Contact Information

Dov Fox (Contact Author)
University of San Diego: School of Law ( email )
5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)
HOME PAGE: http://www.sandiego.edu/law/news/news_releases/newslist.php?_focus=44957
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