The Faculty Lounge

Taboo Trades Podcast Bonus Episode: Taboo Children with Sean Williams

Hello everyone and welcome to the first bonus episode of the Taboo Trades podcast!

As regular listeners know, I’ve sadly had to say goodbye to the amazing group of students who were my co-hosts for Season 2. But I decided to do a couple of bonus episodes this summer, and this is the first, featuring Sean Williams of the University of Texas School of Law. I also have a very special co-host, one of my favorite colleagues at UVA Law, Gregg Strauss.

Sean Williams studies decision making dynamics in a wide variety of areas including marriage markets, parental investments in child safety, jury damage awards, and consumer contracts. He writes widely on Family Law, Tort Theory, and Behavioral Law and Economics. Today we’re discussing his new working paper, “Sacred Children and Taboo Tradeoffs,” which is downloadable from SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4163131

Gregg Strauss is with me at the University of Virginia school of law. He is both a lawyer and a philosopher, and studies the limits of legitimate law in situations of fundamental disagreement, with an emphasis on familial relationships.

 

Somerville, MA passes a polyamory-inclusive domestic partnership law

In a move that is believed to be the first of its kind in the United States, Somerville, Massachusetts has passed a domestic partnership ordinance that is inclusive of polyamorous families.  The news article is available here.  As various scholars, including Hadar Aviram, Gwendolyn Leachman, and me in the United States and Stefan Ossman in Austria, have discussed, polyamorous groups tend to have a complex and sometimes ambivalent relationship to rights advocacy.  This makes the development in Somerville particularly momentous.

The Right to Unmarry: A Special Podcast Episode

Brian Frye and I just recorded a fun Ipse Dixit podcast episode about our paper, "The Right to Unmarry: A Proposal," with special guest host LawProfBlawg. LPB is a natural interviewer. He asked us some really great questions and posed tough hypotheticals regarding the implementation of our theory on unmarriage. Nevermind that he has the voice of a demon. Brian and I are both very grateful to LPB: check out the episode here!

Pitt Law Family Law Clinic Position

FAMILY LAW CLINIC FACULTY POSITION ANNOUNCEMENT

The University of Pittsburgh School of Law invites applications for a full-time faculty position at the rank of Assistant, Associate, or Full Clinical Professor to teach in and direct the School’s Family Law Clinic. This position is part of a system of contracts progressing to presumptively renewable long-term contracts, separate from the University’s tenure stream. The position will begin on July 1, 2020.

The Clinic’s primary mission is to provide an excellent experiential learning opportunity for our students, while also providing legal services to low-income individuals involved in family law disputes. As currently constituted, students enrolled in the Family Law Clinic provide assistance to persons appearing pro se in the Family Division of the Allegheny County Court of Common Pleas, a program sanctioned and valued by the judges sitting in that court. The candidate hired for the position will have the opportunity to shape the future direction of the Clinic.  Therefore, candidates should be prepared to share their thinking about how the Clinic might be adapted or reformed to best advance its dual missions in light of changes in legal education, the legal profession, and society. Duties of the Clinical Professor include classroom teaching, including the possibility of teaching doctrinal courses; supervision of second- and third-year law students as they advise pro se family court litigants and undertake related projects; administrative duties relating to the Family Law Clinic; community outreach and fundraising; and participation in faculty governance of the School of Law. 

Qualifications include admission to practice in Pennsylvania or willingness to seek admission to the Pennsylvania bar; substantial experience in the field of family law and, preferably, clinical pedagogy; excellent supervisory and communication skills; the ability to work effectively with a diverse group of students, clients, and other constituents; and an interest in developing clinical experiences for students in the Family Law Clinic within a community that supports interdisciplinary collaboration and innovative teaching opportunities.

To apply, please provide a letter of interest, resume, and list of three references addressed to Professor Mary Crossley, Chair, Appointments Committee, at [email protected]. Write “Family Law Clinic Application” in the subject line of the email. The deadline for applications is September 3, 2019.

The University of Pittsburgh is an Affirmative Action, Equal Opportunity Employer (EEO/M/F/Vets/ Disabled). In furtherance of our strong institutional commitment to a diverse faculty, we particularly welcome applications from minorities, women, and others who would add diversity to our faculty.  Recruitment is subject to approval by the University’s Provost. 

Equality Law Scholars' Forum at UC Davis Tomorrow

The second annual Equality  Law Scholars' Forum kicks off at UC Davis tomorrow.  I'm looking forward to being one of the commentators on a fantastic set of papers. Here are some details:

Second Annual Equality Law Scholars’ Forum

Friday, November 16 – Saturday November 17, 2018

The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. 

This year, the Forum will feature six presenters (chosen from over forty submissions):

The New Coverture, Albertina Antognini (Arizona College of Law)

Stealing Education: Protecting Racial Capital in “White” Schools, LaToya Baldwin Clark (UCLA School of Law)

Affirmative Action Misclassification, Jonathan Feingold (UCLA Office of Equity, Diversity, and Inclusion)

The Aesthetics of Disability Law, Jasmine Harris (UC Davis School of Law)

Legislating with Tall Tales, Goldburn Maynard (U. of Louisville School of Law)

 Diversity to Deradicalize: A New Theory for How Affirmative Action Became Tied to Intellectual Pluralism, Asad Rahim (American Bar Foundation)

The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law. 

Comment and critique will be provided by the following scholars:

Bridget Crawford, Pace Law School

Jonathan Glater, UC Irvine Law School

Tristin Green, USF Law School

Angela Harris, UC Davis Law School

Jill Hasday, U. of Minnesota School of Law

Anthony Infanti, U. of Pittsburgh School of Law

Osamudia James, U. of Miami School of Law

Tom Joo, UC Davis Law School

Courtney Joslin, UC Davis Law School           

Angela Onwuachi-Willig, Boston U. Law School

Kimani Paul-Emile, Fordham U. School of Law

Leticia Saucedo, UC Davis Law School

We will also hold a panel discussion on Producing Scholarship in Equality Law with the following UC Davis Law School panelists participating: Jack Chin, Kevin Johnson, Courtney Joslin, Tom Joo, Lisa Pruitt, and Brian Soucek.

 

Maynard on "How the NCAA Infringes on the Freedom of Families"

_{Goldburn P. Maynard Jr. (Louisville) has published in the Wisconsin Law Review Online his essay "They're Watching You: How the NCAA Infringes on the Freedom of Families."  Here is an excerpt:}

_{This Essay argues that the NCAA’s surveillance of the family and enforcement of its rules amount to a sumptuary restraint on the families of talented NCAA athletes. In order to keep its cartel in place, the NCAA must bar not only the athlete but everyone in his family from extracting any value from his talent. Luxury purchases are in effect barred for poor families. This is where the NCAA’s enforcement and investigative arms step in. Disproportionately, the families of black athletes are put on notice that any signs of extravagant consumption (that is, beyond the level they should be able to afford) will lead to investigations and potential suspensions. At the moment when these families should be happiest, they have to worry lest they give off any appearance of living beyond their means. I argue that the NCAA’s rules disproportionately disadvantage poor individuals of color. This underscores the inherently unjust nature of the college sports system and the complicity required to keep it in place. * * *}

_{The NCAA’s rules affect all athletes, but they disproportionately disadvantage black ones. Once we limit the college athletic arena to the big sports (i.e., football and basketball) and the revenue generating schools, the statistics are stark. A recent study by Shaun Harper found that black men made up only 2.5 percent of undergraduate students enrolled across all 65 such institutions, but they comprised 56 percent of basketball teams and 60 percent of football teams. The study also showed that 16 percent of those coaches at these schools were black. The average salary for the 65 athletics directors in the major conferences was $698,755, but just 14.7 percent of them were black. And none of the commissioners of those conferences, who earned on average $2.58 million annually, were black.}

Citations omitted. The full essay is available here.

The essay draws on financial history, sports law, family law, theories of punishment/discipline and critical race theory to provide a new spin on a topic that may be familiar to many sports fans. In a footnote, the author acknowledges that the University of Louisville is currently subject to NCAA sanctions and has weathered quite a few NCAA scandals (see, e.g., here). It is not lost on me that I’m a professor at a school currently suffering sanctions.  Professor Maynard writes, "Fortunately, the NCAA has made itself so unpopular that no one should suspect that there is a causal connection" between his employer and his criticism of the NCAA.

Call for Authors - Feminist Judgments: Rewritten Family Law Opinions

DEADLINE:  FRIDAY, JULY 21, 2017

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States.  The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics.  With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes.  Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same.  The list of selected cases, a description of the process of selecting decisions, and the opinions considered but not included, are on the application website here.

Proposals must be to either (1) rewrite an opinion (subject to a 10,000-word limit) or (2) comment on a rewritten opinion (4,000-word limit).  Rewritten decisions may be majority opinions, dissents, or concurrences.  Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.

Those who are interested in rewriting an opinion or providing commentary should complete the form found here.

Applications are due no later than Friday, July 21, 2017.  The editor will notify accepted authors and commentators by Monday, July 31, 2017. First drafts of rewritten opinions will be due on Friday, February 2, 2018.  First drafts of commentaries will be due on Friday, March 9, 2018.

If you have any questions, please contact Rachel Rebouché at [email protected].

Revising Internal Revenue Code Terms Relating to Marriage

In the post-Windsor, post-Obergefell world, the Internal Revenue Code needs to be revised to take same-sex marriage into account.  The ABA Section of Taxation has submitted to the IRS comments on proposed regulations defining terms related to marital status in the Internal Revenue Code. The principal drafter of the comments was Anthony Infanti (Pitt), chair of the Teaching Taxation Committee of the ABA Section of Taxation. Substantive contributions came from Pat Cain (Santa Clara), David Herzig (Valparaiso), Ted Seto (Loyola Law School, Los Angeles), and others (with some minor comments from me). Tony Infanti's leadership was absolutely key.

One important aspect of the comments is the recommendation that the IRS recognize domestic partnerships, civil unions and similar relationships for federal tax purposes.  The Comments explain that "recognizing these alternative relationship statuses for federal tax purposes would better fulfill the Service’s professed purposes in issuing the Proposed Regulations, would result in fairer treatment of similarly situated taxpayers, would render tax considerations neutral in choosing between the different relationship statuses, and would better accord with the reality that several states already treat these relationships as marriages for purposes of their laws."

You can read the Comments here.

The Sticky Slope from Obergefell to Polygamy

Polygamy emerged as a recurring topic in the avalanche of commentary unleashed almost the moment that the Supreme Court extended marriage equality to same-sex couples in Obergefell v. Hodges.  Since the topic is bound to come up in law school discussions in classes as well as faculty workshops, it’s worthwhile to pause and ask why.  Articles in Slate, Politico, the New York Times and Religious Dispatches rushed to debate whether polygamy will be the next frontier in marriage equality.   The deluge is partly explained by the perennial popularity of polygamy as a topic – from TV shows Big Love and Sister Wives to immense press coverage when a state decides to enforce anti-polygamy laws – and the freedom of pro-gay commentators to say what they really think once the Supreme Court finally ruled.  But why just polygamy?  Why not child marriage and incest, two other outré expressions of intimacy that commanded quite a bit of the Court’s attention in oral arguments.    

One answer is that the slope is more slippery in the direction of polygamy than it is in child marriage and incest.  The path from Obergefell toward marriage equality for polygamists might be short and clear, while the route to abolishing age-of-consent and incest statutes could be more like a forested hillside full of social and legal impediments to marrying your sister or a 6^th grader.  That’s probably true, but there path from Obergefell to polygamy is probably a lot more circuitous than many people think.  

 

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

"Aging with a Plan" (Sharona Hoffman)

Professor Sharona Hoffman (CWRU Law) recently published a book on preparing for aging (Aging with a Plan, 2015) and I had the opportunity to interview her about her impetus for writing the book and how she tackled the writing process, bearing in mind that she wanted to make the book accessible to both lawyers and non-lawyers.

Here's what she had to say ...

======

Q: Preparing for aging is an unusual topic for a book. What led you to write about it?

A: The book grew out of a very difficult period in my life.  During 18 months in 2013 and 2014 both my parents died, my mother-in-law died, and in October of 2013, my husband, Andy, was diagnosed with Parkinson’s disease at the age of 55.  As I went through these experiences, I learned a lot about the legal, social, financial, medical and other challenges of growing older, getting sick, and facing the end of life.  As a Professor of Law and Bioethics, I already knew something about theories and doctrine related to many of these issues, but there is nothing like life experience to enliven your knowledge and imprint lessons on your mind.

I realized that I had a lot of knowledge to share, and I wanted to take my professional and personal experiences and put them to good use helping others.  Writing this book seemed like a natural choice. 

Q: Who is your intended audience? How accessible is the book for folks without a legal background?

A: The book is designed first and foremost for baby boomers, people in middle age who should be thinking ahead and planning for taking care of elderly loved ones and for their own aging.  As I have learned the hard way, when you are in the midst of crisis, it is very difficult to make good decisions if you know nothing about the problems you are facing.

I believe the book is quite accessible to people without a legal background.  I use an interdisciplinary approach that draws on my background in law and bioethics.  However, I combine thorough scholarly research and analysis with a wealth of personal anecdotes to make the book engaging and a fairly easy read.  I also provide a preparedness checklist at the end of each chapter that summarizes take-away messages and outlines practical next steps for readers.

Save the Date: Family Law Scholars and Teachers Conference, June 22, 2015

From conference organizers:

Dear Friends and Colleagues,

We would like to invite you to a working-paper conference that we are planning to hold in the days before the AALS mid-year family law conference in Orlando next summer. Our group, the Family Law Scholars and Teachers Conference, has been known in the past as the Emerging Family Law Scholars and Teachers Conference (EFLS). That group held an annual conference for the past eight years, but until now has been limited to junior scholars. This year we are opening the conference to scholars at all levels of seniority, and are hoping that many of you can join us.

            The conference will take place on Monday, June 22, 2015, in Orlando, Florida—the day of the AALS workshop’s opening reception. Since our conference will be held earlier that day, these two events will not conflict. We will be hosted for the day by Florida A&M University College of Law, which is just a few minutes’ drive from the Doubletree Hotel that hosts the AALS workshop.

            For those of you who are not familiar with the EFLS conference, the main purpose of the meeting is to allow family law scholars to receive detailed, constructive feedback on their work in a supportive, collegial environment. In addition, the meeting is a forum to meet others in the field and talk about teaching, service, developments in the law, and other relevant themes raised by participants. Scholars present their work—either in its very initial form (an incubator session) or in its more developed form (a work-in-progress session)—in intimate groups. We have a very strong norm that participants carefully read drafts of the papers in advance of the sessions, and there are no formal presentations. Many of us feel that this has been a very meaningful conference that significantly contributed to our development as scholars and teachers.

            Although we have decided to open up the conference to scholars at all levels, we are still committed to preserving the conference’s intimate and supportive character. Therefore, we can accommodate only 45 participants, selected on a first-come-first-served basis. Additionally, although we will try to fulfill all requests for an incubator or work-in-progress session, if space is limited, we will give some preference to junior scholars. As always, there is no registration fee, and people only need to pay for their meals and accommodation. The Doubletree Hotel will give the discounted rate for rooms a couple of days prior to the conference.

            We will open up the registration and submission, via TWEN, in February 2015. For now, if you would like to receive announcements about the conference, please sign in on our TWEN page. To do that, go to “Add Courses” and select “Family Law Scholars and Teachers 2015 Conference.” If you have already selected the course in 2014, we will migrate your e-mail automatically and you do not need to register again. You should expect to receive an e-mail with further information about submissions and registration in February 2015.

            If you have any questions or comments, feel free to contact co-chairs Erez Aloni ([email protected]) or Jessica Dixon Weaver ([email protected]).

Best wishes,

FLST Planning Committee,

 

Erez Aloni

Anibal Rosario Lebron

Dara Purvis

Sarah Swan

Bela Walker

Jessica Dixon Weaver

 

Sharia Law in the North Carolina Courts

Last summer the North Carolina legislature passed a law banning the use of Sharia law in North Carolina courts.  The statute is an odd one .  It does not mention Sharia law, only foreign law.  But the law's supporters had Sharia law in mind.  The statute -- maybe in some kind of odd resonance with Shelley v. Kraemer -- prohibits the enforcement of contracts that infringe fundamental constitutional rights.  This is a way of allowing courts to review private agreements regarding divorce and custody (I'm guessing mostly pre-nuptual agreements) if they refer to Sharia law [or other foreign law] as a way of resolving a dispute.  It has been codified in the North Carolina General Statutes in Chapter 1.  Its provisions include:

§ 1-87.13. Public policy

In recognition that the United States Constitution and the Constitution of North Carolina constitute the supreme law of this State, the General Assembly hereby declares it to be the public policy of this State to protect its citizens from the application of foreign law that would result in the violation of a fundamental constitutional right of a natural person. The public policies expressed in this section shall apply only to actual or foreseeable violations of a fundamental constitutional right resulting from the application of the foreign law. (2013-416, s. 1.) 

§ 1-87.14. Nonapplication of foreign law that would violate fundamental constitutional rights.

A court, administrative agency, arbitrator, mediator, or other entity or person acting under
the authority of State law shall not apply a foreign law in any legal proceeding involving, or recognize a foreign judgment involving, a claim for absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution if doing so would iolate a fundamental constitutional right of one or more natural persons who are parties to the proceeding.  (2013-416, s. 1.)

§ 1-87.15. Interpretation of contracts providing for choice of foreign law.

(a) In the interpretation or enforcement by a court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of State law of any contract or other agreement that provides for the choice of a foreign law togovern its interpretation or the resolution of any claim or dispute, the court or administrative agency shall preserve the fundamental constitutional rights of natural persons who are parties to the contract or other agreement.

(b) If enforcement of any provision in a contract or other agreement for the choice of  foreign law would result in a violation of a fundamental constitutional right of one or more of the natural persons who are parties to the contract or other agreement,the agreement or contract shall be modified or amended to the extent necessary to preserve the fundamental constitutional rights of the natural persons. (2013-416, s. 1.)

§ 1-87.16. Interpretation of contracts providing for choice of foreign venue or forum. 

If the enforcement of any provision in a contract or other agreement providing for a choice of a foreign venue or forum would result in a violation of a fundamentalconstitutional right of one or more of the natural persons who are parties to the contract or other agreement, that provision shall be modified or amended to the extent necessary to preserve the fundamental constitutional rights of the natural persons. (2013-416, s. 1.)

Because I am always looking to incorporate North Carolina legislation and cases into my courses, I think that I probably ought to pay some attention to this statute.  I mean, if we're banning the use of Sharia law here in North Carolina, surely it's being used with some frequency, no?  And I thought that I'd crowd-source a couple of issues related to this.  First, does anyone have any recent North Carolina cases involving Sharia law that I should be teaching?  Or North Carolina separation and custody agreements that I could use to illustrate how Sharia law is appearing in North Carolina?  Does this come up in some way in wills or trusts?  I'm not sure -- I don't know as the statute would protect beneficiaries under a will or trust that in some way uses Sharia law to determine eligibility, though maybe a beneficiary might try something along those lines....

Also, I'm planning on a field trip up to Hillsborough to look for instances where lawyers in the Orange County Superior Court invoked Sharia law.  I'll let you know how that goes.  But perhaps Orange County isn't the best place to look for this?  Do our North Carolina readers have any suggestions on the counties where Sharia law has been invoked most frequently?  Perhaps I should think about Alamance, Granveille, or Halifax Counties? Or maybe, because of this statue, I need to look in Virgina counties.  Would Lunenburg County be a reasonable place to look for this?  Suggestions most appreciated because as I say I want my property -- and especially trusts and estates -- classes to be up-to-date.

The illustration is of the antebellum Orange County Courthouse in Hillsborough.

Update: As Greg and Brian both pointed out, this was an April Fool's day post, designed to poke some fun at the North Carolina legislature.  But there is serious scholarship discussing similar legislation in other states.  John Parry of Lewis and Clark wrote "International Law in State Courts: Sovereignty, Resistance, Contagion, and Inevitability" about Oklahoma's anti-Sharia law statute.  Lumen Mulligan of the University of Kansas published an analysis of a similar Kansas statute in 5 Kansas Code of Civil Procedure Annotated (2013 supp.).

Would Marlise Munoz's Fetus Have Survived? Should It Have?

This is post is part of The Bioethics Program’s ongoing Online Symposium on the Munoz and McMath cases, which I've organized, and is cross-posted from the symposium. To see all symposium contributions, in reverse chronological order, click here.

Had the hospital not relented and removed the ventilator from Marlise Munoz's body, could the Munoz fetus have been brought to term, or at least to viability? And if so, would the resulting child have experienced any temporary or permanent adverse health outcomes? Despite some overly confident commentary on both "sides" of this case suggesting a clear answer one way or the other—i.e., that there was no point in retaining the ventilator because the fetus could never be viable or was doomed to be born with catastrophic abnormalities; or, on the other hand, that but for the removal of the ventilator, the "unborn baby" was clearly on track to being born healthy—the truth is that we simply don't know.

Before getting into the limited available data about fetal outcomes in these relatively rare cases, a bit of brush clearing. The New York Times juxtaposed reports about possible abnormalities in the Munoz fetus with the hospital's stipulation about the fetus's non-viability in ways that are likely to confuse, rather than clarify:

Lawyers for Ms. Muñoz’s husband, Erick Muñoz, said they were provided with medical records that showed the fetus was “distinctly abnormal” and suffered from hydrocephalus — an accumulation of fluid in the cavities of the brain — as well as a possible heart problem.

The hospital acknowledged in court documents that the fetus was not viable.

Whether intentionally or not, the nation's newspaper of record implies — wrongly, I think — that the hospital conceded that the fetus would never be viable because of these reported abnormalities. In court, the hospital and Erick Munoz stipulated to a series of facts, including that Marlise was then 22 weeks pregnant and that "[a]t the time of this hearing, the fetus gestating inside Mrs. Munoz is not viable" (emphasis added). The hospital conceded nothing at all about any fetal abnormalities. In short, the Times, and many other commentors, have conflated "non-viability" as a function of gestational age with "non-viability" as a way of characterizing disabilities that are incompatible with life. As I read this stipulation, the hospital was not at all conceding that the fetus would never have been viable, had the ventilator remained in place. Rather, given the constitutional relevance of fetal viability, the hospital was merely conceding the banal scientific fact that the Munoz fetus was, at 22 weeks, not currently viable. There is nothing surprising in the least about the hospital's "concession" about "viability" in the first sense, above: 22-week fetuses are generally not considered viable.

Online Symposium on Munoz and McMath Cases

UPDATE: Following Friday's court order (discussed below), the hospital today (Sunday, Jan. 26, 2014) removed the ventilator from Marlise Munoz, who has met the criteria for brain death since Nov. 28, 2013.

Two high-profile, rapidly evolving cases involving death by neurological criteria — better known as “brain death” — raise vexing and sometimes novel legal, ethical, and medical questions at the edges of life and death. I'm organizing an online symposium on these cases over at The Bioethics Program Blog, and will be cross-posting my contributions here, beginning with this introduction to the symposium, which brings readers up to date with legal developments through today. Please contact me if you're interested in participating.

The Marlise Munoz Case

On November 26, 2013, Erick Munoz found his wife, Marlise, unconscious on their kitchen floor. She was then 14 weeks pregnant with their second child. Erick resuscitated her and she was transported, alive, to John Peter Smith Hospital, where she was placed on a ventilator to assist her breathing and given other life-sustaining treatment. Not long thereafter, however, Erick says that the hospital told him that Marlise was brain dead.

Although Marlise did not have a written advance directive, according to Erick, both he and Marlise had

worked as paramedics during their marriage, and thus were knowledgeable of and had personally witnessed injuries that resulted in death, including brain death. Erick and Marlise frequently discussed their requests, beliefs and desires with each other, and expressed clearly to each other, family members and friends, their respective desires not to be resuscitated should either of them become brain dead.

Erick requested, with the “full support” of Marlise’s parents, that the ventilator be removed from her body and that he be given possession of it for burial.

The hospital refused. It argued that § 166.049 of the Texas Advance Directives Act (TADA) — which provides that “a person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient” — prohibits it from removing the ventilator. It was not entirely clear whether the hospital believed that Marlise was in fact dead or not. The media was reporting as late as December 24 that the hospital had said that Marlise was in “serious condition,” and the hospital had not released Marlise’s medical records, which Erick said would show a diagnosis of brain death, to him.

More about the Munoz case, the McMath case, and the symposium participants after the jump.

Not Your Everyday Nonpaternity Story

UPDATED BELOW

From the truth is (a lot) stranger than fiction files comes this disturbing story, which interweaves—in ways that would be deemed implausible, if they appeared in a fiction manuscript—several of the topics I've written about here before: legal academia, human subjects research (sort of), reproductive technologies, direct-to-consumer (DTC) genetic testing, and preference heterogeneity.

Recently, a family—wife, husband, 21-year-old daughter—with an interest in genetic genealogy decided to avail themselves of 23andMe's DTC services. They received the results and were surprised to learn that the daughter is the biological child of the wife, but not the husband (and confirmed these results through clinical testing). So far, not so fantastic a story. Rates of non-paternity in the general population are traditionally said to be about 10%, although recent studies have suggested much lower rates. And the fact that the family discovered non-paternity through DTC genetic testing? Welcome to 2013.

The couple, it turns out, had had difficulty conceiving, and in 1991 had sought the help of Reproductive Medical Technologies, a fertility clinic associated with the University of Utah. Several times, clinicians there inseminated the wife with her husband's sperm. Alas, no pregnancies resulted. They decided to give artificial insemination one final try and—success. Some twenty-one-years later, they reflected on their newfound knowledge of the husband's nonpaternity and figured that there must have been a mix up in the clinic. They imagined the life now perhaps being lived by another 21-year-old, created from the husband's sperm and another artificially inseminated client. Unfortunate though they are, accidental mix-ups in fertility clinics are known to happen.

In this case, the family took its nonpaternity results beautifully in stride; the daughter knows that the man who raised her is her "real" dad, and he knows that she is his "real" daughter. Indeed, the family decided to go further and seek out their daughter's biological father—and perhaps the husband's biological daughter. To do so, they used the other two major DTC genetic genealogy companies, Family Tree DNA and AncestryDNA, to find close paternal relatives of the daughter. Searching for biological relatives through DTC genetic genealogy is increasingly common. Here's a great story about one adoptee's search, for instance, and only yesterday, I agreed to share my 23andMe profile with an adoptee looking for biological relatives. We're not quite yet at truth-stranger-than-fiction status yet.

The AncestryDNA testing yielded a predicted second cousin for the daughter, and the family made contact. The second cousin was at a loss to explain their genetic connection, except to note that her first cousin, an only child now deceased, had lived in Salt Lake City at the time and told the family that he'd been a sperm donor. When she shared his name—Thomas Ray Lippert—and an older picture of him, the husband and wife recognized him as Tom, who had worked at the front desk of the fertility clinic as well as in the back, as a technician. The wife

remembered [Tom] proudly displaying dozens of photos of babies behind his desk, boasting that he had helped all of their parents conceive. Looking at all of those beautiful babies and Tom’s confidence gave [the wife] hope that she and [the husband] could have the baby that they so desperately wanted as well. She never could have imagined how far Tom apparently would go to “help” couples conceive. [The husband] too remembered him and recalled thinking that Tom was a bit odd when he handed him the sample receptacle and the magazine.

Admittedly, discovering that someone in the fertility clinic substituted his sperm for the husband-client's is slightly more fantastical, but hardly unheard of in the real world. Tom's mother, still living, consented to genetic testing, which confirmed that Tom was indeed the daughter's biological father.

What happens next, however, reads like the kind of fantastical plot elements that would get a fiction manuscript tossed.

In Memoriam: Adrienne Asch

I'm sorry to report that Adrienne Asch, director of the Center for Ethics at Yeshiva University and the Edward and Robin Milstein Professor of Bioethics, died yesterday of cancer. A social psychologist by training (but no relation to Solomon Asch), Professor Asch's scholarly focus was the ethical, legal, and social implications of human reproduction, especially as it intersects with disability studies. An interdisciplinary scholar (as most bioethicists are), she taught courses at Wurzweiler School of Social Work, Cardozo School of Law, and Albert Einstein College of Medicine.

I didn't always agree wth Adrienne, but she was an important scholar. As Sam Bagenstos noted, her death is "a huge loss for the disability world." Among other things, she challenged pro-choice scholars and activists to rethink the implications of some of their policies and theories for people with disabilities in present and future generations. Here is one example of many.

Adrienne was also a lovely person. Some years ago, I picked her up from Wellesley (where she then taught) and drove her to Dartmouth (where I was a college senior) for a brief visit. It was, from start to finish, an epic fail on my part. In my defense, her assistant gave me terrible directions, I was then unfamiliar with the joy that is Boston rush "hour" traffic (including the fact that it begins at 3pm and lasts until 7pm), and this was before either cell phones or GPS. Nevertheless, what was supposed to be a three-hour drive that left time for her to change clothes at the hotel before her first talk became a four-hour tour during which I grew increasingly anxious about the prospects of getting her to the church on time, as it were. Adrienne was blind (hence my driving her), and this raised the additional issue of what to tell her, and when, about our travels. Ever the intellectual and mentor, as soon as she got into the car, she wanted to hear about the honors thesis I was writing. Alas, I turned out to be utterly incapable of navigating Boston's traffic and discussing French existentialism at the same time, and soon we were hopelessly lost. I stopped at a gas station for directions (remember when you had to do that?), but by then we had hit rush hour traffic. We finally reached the highway and I managed to make up some time. As we discussed all manner of topics bioethical, I did the math and figured that if I, ahem, flirted with the speed limit, I could just have her to her talk on time.

The New Hampshire state police were not accommodating of this plan, however. Mere yards from our final exit I saw flashing lights in my rearview mirror. Feeling the car slowing down as I pulled over, Adrienne asked brightly, "Oh, are we there?" Mortified, I told her that no, in fact, I was being pulled over for speeding and that we would now certainly be at least a few minutes late for her talk. She would have been well within her rights to be furious with me, but was instead remarkably understanding. (The administrative director of Dartmouth's Ethics Institute, by contrast, chided me for acting unethically by speeding.) Here's a great interview with Adrienne that captures some of her personality, as well as her views about disability and her experiences living with a disability.

Yeshiva University's notice of Adrienne's death, along with funeral and shiva details, is here. Tributes are being collected here. She will be missed.

[Cross-posted at Bill of Health]

AALS Call For Papers: Children's Privacy Rights Against Their Parents

The AALS Section on Defamation and Privacy invites papers for its program on “Children’s Privacy Rights Against their Parents” for the Annual Meeting, to be held on January 2-5, 2014.

Topic Description: Electronic surveillance technology and social media have significantly changed childhood in the Twenty-First Century. The digitization and electronic monitoring of children have altered the parent-child relationship and have significant ramifications for children’s privacy. At the same time, privacy scholars’ discussion of children’s privacy has focused mainly on the privacy of children from third parties, such as companies that collect personal information on the Internet. Similarly, family law scholars have paid little attention to children’s privacy, limiting the discussion to medical decision-making, and particularly abortion decisions. Yet, few have explored whether children have a general right to privacy against their parents. The panel will explore areas of tension involving privacy rights of children against their parents. Panelists will address, among other issues, the impact of parental electronic surveillance online and offline, such as GPS monitoring and use of software to monitor online surfing. It will also explore potential parental privacy threatening activities online, such as posting information on children on Facebook or intervening in the creation of a child online persona. This program is co-sponsored by the Section on Juvenile and Family Law and the Section on Children and the Law.

Eligibility: Full-time faculty members of AALS member law schools are eligible to submit papers. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.

Submission: 1-2 papers will be selected from this call for papers. There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete papers. However, shorter proposals will also be considered. Papers will be selected by the Section’s Program Committee.

Please email submissions to Gaia Bernstein at: [email protected] no later than August 15, 2013. 

Marriage & Polyamory

Interesting survey results on polyamorists' interest in marriage were recently published on Loving More's website.  As background, conservatives who oppose marriage equality have been making slippery slope arguments for years about the purported danger of legally sanctioning same-sex marriage and a resulting inability to distinguish plural marriage.  See, e.g., Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting).  In response, as I noted in my article Polyamory as a Sexual Orientation, some marriage equality proponents have tried to distance themselves from polyamory and have sometimes cast aspersions on it.  79 U. Cin. L. Rev. 1461, 1484 (2011).  However, polyamorists themselves face considerable discrimination and appear to be deserving of legal protections, although there is uncertainty about whether and what types of protections they want.  79 U. Cin. L. Rev. at 1513-14.  Hadar Aviram's research on the Bay Area poly community suggested that that community at least did not want to advocate for poly marriage, partly out of fear of taking away steam from the marriage equality movement.  Hadar Aviram, Make Love, Not Law: Perceptions of the Marriage Equality Struggle Among Polyamorous Activists, 7 J. Bisexuality 261, 264 (2008).  This new survey data, however, shows that a significant majority of Loving More's national respondents (65.9%) would take advantage of plural marriage if legally available, although, interestingly, an almost equal--but slightly larger--percentage (66.9%) think that no relationship structure "deserves special recognition."   Thus, there seems to be a preference for disestablishment of rules privileging certain relationships, perhaps along the line of Nancy Polikoff's work, coupled with a practical willingness to marry if the option were available. 

Biological Father and Stepmother and Paternal Grandparents Move to Adopt Baby Girl

A new development in the Baby Girl case has occurred--namely, the attempted adoption of the child by her biological father and stepmother and, alternatively, her paternal grandparents.  More information is availiable here.  This is something that Justice Sotomayor predicted could happen in the case, given that ICWA mandates placement preferences for adoption of Indian children that include the child's extended family.  Slip Op. at 25.

The case remains troubling to me in a number of respects, most importantly its exceedingly narrow interpretation of ICWA.  I also remain concerned, as I noted earlier, that sub silento termination of unmarried fathers' rights, as is allowed under South Carolina law, conflicts with the equal protection clause.  Finally, I'm skeptical of the Majority's notion of abandoning children "in utero."  Slip Op. at 16; see also Slip Op. at 2.  I fully acknowledge that it can be harmful and distressing for a pregnant woman to be deserted by her partner, and that this can harm the child who is later born, but I am not sure that that is the same thing as abandoning a child.  It seems to me that it may be necessary to assume a pro-life stance to get to this conclusion (although I think a parent's actions during pregnancy should certainly be relevant in a later proceeding regarding parental rights).