Category: Uncategorized

I think the only thing that can fairly be said about this story: Yikes.

Posted by Administrators on April 8, 2005 at 08:31 AM

It seems that Tom Delay’s new strategy to deflect attention from his scandal-besotted tenure is to excoriate judges for their judicial restraint in light of Schiavo. Bravo, Tom!

There’s not too much to cry over in the downfall of DeLay’s henchman Jack Abramoff, but let it be said that Abramoff is no longer bankrolling the jobs program that was once Stacks Kosher Deli here in DC. During its brief life, Stacks was teeming with employees milling about, but none seemed too interested in waiting tables effectively. Not to mention that the food was bad (gefilte fish out of a jar! Yuck!), and the portions weren’t big enough either 🙂

DM

Posted by Administrators on April 8, 2005 at 08:27 AM

Comments

MJ: 1. Liberals tend to criticize individual judges and decisions, whereas conservatives seem, every few years, to go totally nutso and say the entire system has “run amok,” based on one decision. Liberals seem to have enough common sense and sanity to recognize that the hypocrisy and idiocy of five justices in Bush v. Gore doesn’t mean that the whole legal system needs to be torn down by its roots. Tom Delay does not seem to share such sanity.

2. Liberals, and honest conservatives, tend to criticize decisions when they disagree with them. Tom Delay appears to be criticizing the judiciary only to distract the public from his own extreme misconduct.

Posted by: Paul Gowder | Apr 8, 2005 2:25:06 PM

Sorry for the multiple posts – non-responsive computer stuff.

Posted by: MJ | Apr 8, 2005 1:57:13 PM

Serious question for the prawfs and their readers:

If you believe (as reasonable people can and do) that the Florida courts and the Federal Courts (M.Dist of FL and the 11th Cir.) exceeded their authority in one, striking down “Terri’s Law” (FL courts) and two, ignoring the call for de novo review of the evidence in the statue the congress passed and the President signed(the federal courts), what is wrong with condemning the acts of the state judges, who are elected officials after all, and criticizing the federal courts.

1. If that is improper, then what means (I doubt that you are advocating court stripping legislation) do the two elected branches have when a state or federal court is (arguably) acting improperly? Just shut up and live with whatever the courts decree? (I would guess that means no more criticism of the conservatives on the Supreme Court for Bush v. Gore – you might chill the Court’s independence!)

2. How is it that Rep. Delay’s remarks, which are unquestionably a direct criticisms, and Sen. Cornyn’s statement, which is at best innuendo, are more damaging to judicial independence than the daily castigation of conservative judges and appellate court nominees? (And upon request I can provide reams of horrendous things said about the judges who are currently being filibustered and conservative Justices like Thomas and Scalia).

Assume for one minute (without judgment) that conservatives feel the same way about some of the recent decisions (Lawerence, Grutter, Simmons) that the left feels about Bush v. Gore. I didn’t hear, and still haven’t heard, any clarion calls for criticism to be muted re: Bush v. Gore lest we undermine the independence of the judiciary. Why not?

In short, it doesn’t appear to me that the left has a monopoly on restraint when it comes to complaining about federal and state judges. Roy Moore anyone?

Posted by: MJ | Apr 8, 2005 1:55:45 PM

Great forum for discussion. I wanted to put to you and your readers a serious question about the criticism directed at Rep. Delay for his remarks:

If you believe (as reasonable people can and do) that the Florida courts and the Federal Courts (M.Dist of FL and the 11th Cir.) exceeded their authority in one, striking down “Terri’s Law” once it was enacted (FL courts) and two, ignoring the call for de novo review of the evidence in the statue the congress passed and the President signed(the federal courts), what is wrong with condemning the acts of the state judges, who are elected officials after all, and criticizing the federal courts.

1. If that is improper, then what means (I doubt that you are advocating court stripping legislation) do the two elected branches have when a state or federal court is (arguably) acting improperly? Just swallow whatever the courts decree?

2. How is it that Rep. Delay’s remarks, which are unquestionably a direct criticism, and Sen. Cornyn’s statement, which is at best innuendo, are more damaging to judicial independence than the daily castigation of conservative judges and appellate court nominees? (And upon request I can provide reams of horrendous things said about the judges who are currently being filibustered and conservative Justices like Thomas and Scalia after Bush v. Gore).

I’m not being smarmy, I actually want to know if left-minded folks honestly feel it is dangerous to judicial independence for the two elected branches to criticize the courts? If so doesn’t the routine castigation of conservative judges, nominees, and potential nominees who would someday like to be judges, have an equally chilling effect on their independence?

Posted by: MJ | Apr 8, 2005 1:34:31 PM

Oy. I really hope I’ve been clear that Rivki is misreading me. Indeed, I feel she may be willfully misrepresenting the argument. Three out of four of the proposed solutions in the article she should have no quarrel with. In the article, my most important claim is that a woman should not jump to her legal right to choose before hearing out the semen provider’s positions. Is that really controversial? I can’t see how. But it still manages to raise people’s ire.

I further proposed that a man and woman jointly could contract out of forcing support payments. That is an option not apparently available under current law (that I know of) and could enable women to say: I agree with you, semen-provider, that we had agreed–explicity or implicitly–not to reproduce and that I now am choosing to carry that child to term against your wishes. Accordingly, I am enabling you to sign a document that will prevent me from trying to collect money from you to support this child for the next many years. While the support rights might belong to the child, I have the right to make decisions for the fetus now and am doing so, terminating your rights and responsibilities. The man still has to pay the cost of having a child in the world, an emotional cost that cannot be ignored. Is this actually deeply controversial? I’m not convinced it is.

Under a second potential legal implementation, the man can sue for intentional infliction of emotional distress. Obviously, there are evidentiary problems. Are they insuperable? I doubt it. If the woman was on the pill and the man concededly wore a condom and a medical miracle happened anyway, it isn’t clear to me that it would be inappropriate to relieve the father of support payments. I acknowledge this assumes that both parties were pro-choice when they had intercourse. There is a complexity if the man knows ahead of time that the woman would keep the child. If he is on notice, the equities may change. But I still hope having the discussion ahead of time might lead to contractual arrangements, as unromantic as they seem. Hey, so are marriage contracts and pre-nups. But many people get over it to protect themselves and reap the benefits thereof.

I know there are hard questions–both evidentiary and moral–about the garden variety case, where the man just wants an abortion and the woman doesn’t. I probably would cede some territory here down the road. But for now I’m content to expose a weakness of the rhetoric of “procreative choice” and think through ways to be more egalitarian about it. Nothing rides on Irons and Philips–it was always an ad absurdum to begin thinking through the limits of the right to choose.

Posted by Ethan Leib on April 7, 2005 at 06:25 PM

Comments

I just happened upon a link to this discussion, and I apologize if I’m beating a dead horse by following up two years after the fact. It’s a pet issue of mine, and some of the more recent material here seems to indicate that the topic’s still of some interest to Ethan, at least, so I’m giving in to the impulse to toss out my two cents’ worth.

First, let me note that while I disagree with the bulk of Ethan’s policy proposals, I’m also not a big fan of the counterarguments that rely on the rights of the child. I do think children are entitled to support, but (dangerous pinko type that I am!) I see that as an entitlement against society as a whole, not against producers of sperm. Frankly, I see the current US-law constructions of biological fathers’ obligations to children as illogical, ahistorical, and not altogether compatible with due process. They also draw way too heavily for my comfort on our nasty cultural tendencies to pass the buck whenever possible, to delight in the dire consequences of other people’s sexual behavior, and to forget our impassioned concern for children’s well-being whenever the children in question don’t come from the right genetic stock.

Besides, while playing the “interests of the child” card may be expedient for feminists in this context, and while I realize it’s important to recognize the frequent identity between children’s interests and women’s interests in practice, I think it can also do us real harm to continually subordinate our own interests to children’s interests in this dialogue.

But leaving off the interests of the child, I do think that when two people have consensual sex, and it turns out to have expensive consequences for one of them, it’s only fair that, to the extent possible, the other be obliged to share in the expense. And I think fathers’ child support liability is a better way to implement that than any alternative I’ve seen proposed.

In that vein, one of the suggestions from Ethan’s article entirely fails to persuade me: Letting the man off the hook because he tried to avoid a pregnancy effectively lets him enjoy a “negligence” standard for responsibility, while the one who’s pregnant despite anyone’s best efforts is stuck with strict liability. If she has to roll the dice and take her chances, so does he. That she has (maybe, as Rivki already discussed) the option to abort doesn’t cure anything for me, because it’s not clear that that option actually reduces the costs (including personal as well as financial costs) she faces. I’m sure there are situations in which women become unexpectedly pregnant and think “Well, abortion would be a fine option, but hey, having a baby would be even better!” Just as often, though, I suspect it’s a lesser-evil kind of situation–one decides to go ahead and take on (or even embrace) parenthood because it’s even harder to reconcile oneself to the alternative. Under those circumstances, it’s awfully hard to claim that the existence of the alternative makes the pregnancy itself cost-free, and thereby let the man off the hook for his responsibility for it.

Of course, one way to dodge this is to take the woman’s feelings and moral compunctions out of the analysis, claiming that the woman is wholly responsible for those internal factors. Then you can argue that any costs associated with the abortion (beyond cost of the procedure and a bit of physical pain and suffering) aren’t caused by the pregnancy; they’re caused by the woman herself. So the man doesn’t share in the responsibility for those, and they don’t belong in the equation, and we’re back to the pregnancy itself as just a little thing that doesn’t have to cost the woman much of anything and shouldn’t cost the man anything either. After all, it’s not like we’re asking her to commit suicide to save us the costs of letting her pregnancy go to term; it’s just a simple medical procedure that a reasonable person would recognize as the efficient alternative…so of course we shouldn’t make the man pay for any inefficiency caused by the woman’s unreasonableness, right?

That works, if you can sell me on that idea of the reasonable person. Problem is, I think constructing a reasonable person that way serves the interests of men who want sex to be cheap, but only by denying the real experience of women in this society, and the natural effects that that experience has on how women view their choices. I think if one’s arguments depend on a reasonable person’s–and in particular, a reasonable pregnant person’s–seeing abortion as an appropriate more-efficient alternative to having a baby, one needs to go way beyond simply legalizing it. One needs to dismantle those parts of the culture that still treat fetuses at least as kind-of-sort-of-babies rather than just semi-foreign internal growths (after all, even in the most left-wing of communities, it’s not socially-appropriate to think of a fetus the pregnant woman plans to carry to term as the biological equivalent of a tumor), or at least those that indoctrinate women in the virtues of motherly self-sacrifice, and certainly those that still paint abortion as something seedy and morally suspect. After all, for all that it is occasionally useful if women see no problem with casually terminating pregnancies, we as a society generally profit heavily off of a quite contrary set of norms, so there’s something quite distasteful about turning around and, as a matter of law, declaring the women whose exercise of agency is shaped by those norms “unreasonable.”

So, I’m not buying the “he tried to avoid the pregnancy, so he should get off cheap” argument. The way I see it, under current law and in the society we’ve got, whatever a woman chooses will probably cost her more than it costs the man who participated in getting her into the situation, and so I’m pretty comfortable with the fact that she has the privilege of deciding what form the costs will take and then (sometimes) passing on a share to him.

As to the contract notion, I see two interlinked issues that would raise problems for me with most such contracts: unequal bargaining power and lack of consideration. After all, neither moral consideration nor nominal consideration generally supports an enforceable contract. If the woman’s just promising to forgo her entitlement to collect child support because she believes it’s the right thing to do–even if she formalizes it with “consideration” as token as the hypothetical one-time payment to defray the costs of birth–you don’t have a contract. You might have a case for promissory estoppel, but there you’re limited by equity (which takes us back to questions of bargaining power), and you’re probably looking at recovering the reliance interest (i.e., that previously-made lump sum payment), not the full benefit of the bargain. So I wouldn’t rule out the possibility if the man could show that, under bargaining conditions not so unequal as to be unconscionable (taking honest–which in my view means extensive–account of gendered sexual power dynamics, economic duress, and so on), he put up the kind of consideration that might plausibly have induced the promise in an arm’s-length bargain. However, it’s my experience that this is almost never what men who want to contract out of support payments are talking about; instead, it’s an attractive option only because one is anticipating a much better bargain than one could get in any commercial context.

So, that leaves the scenario wherein the woman “has forced the man to become a parent against his will,” presumably by committing rape, having sex with someone who lacked the legal capacity to consent, impregnating herself with sperm the man discharged elsewhere than into her reproductive organs, or deliberately sabotaging his efforts to prevent pregnancy. In the abstract, I am actually one hundred percent behind the idea that a man should not, in these scenarios, have any legal obligations toward the woman or the resulting child–and I’m probably fine with letting him collect his damages from her, too. Unfortunately, the only scenario there that’s at all easy to prove is statutory rape, and one would be implementing this policy in a setting where women are consistently, systematically disadvantaged when it comes to getting judges and juries to believe their word against a man’s on just about anything sex-related, and where they’re often treated downright nastily in the process. So I’m not sure how okay I am with the idea of giving men the power to, based on bare allegations alone, put a woman through that any time she tries to collect child support. I realize that’s an unfair result for men who are genuinely victimized, but I nonetheless suspect it does less harm than the alternative. Still, I’d love to see a way that the system could be improved for male victims without handing a powerful weapon to men who just want to avoid obligations. Requiring a higher burden of proof might suffice to level the playing field and discourage harassment via unmeritorious claims (albeit, of course, excluding more male victims from protection too), but I don’t know.

All that said, I do agree with the general principle that women making choices about pregnancies should take the male sperm-producers’ preferences into account in some fashion. However, I see it as the sort of situation-dependent question of personal ethics that is very, very difficult to translate into public policy, and perhaps shouldn’t be so translated at all. And I think the suggestions in the Legal Times article are way too glib and idealistic even to provide a plausible starting point.

Posted by: Laura Back | Jun 26, 2007 8:44:15 PM

Not set up! The right to choose! We do not believe in abortion, though we do support adoption! That’s a choice!

Posted by: L DeMello | May 7, 2006 5:18:10 PM

This may be tangential, if not outright orthogonal, but here it is:

You say that your setup “assumes that both parties were pro-choice when they had intercourse.” Interestingly, this seems to use the term pro-choice to mean “open to having an abortion.” Yet, many pro-choicers insist that the term means only “willing to preserve the legal option for others, i.e., no government ban.” Thus the formula: “I’m personally pro-life (against abortion, would never have one, etc.), but am pro-choice.”

But it seems that your usage does not mean “legally pro-choice,” as it would be meaningless for this hypothetical couple to merely support the legal rights of others to abort, but were both opposed to it themselves.

So does this usage mean nothing, or does it reflect that in normal usage — i.e., when one’s antennae are not up for some battle with those who do support legal restrictions — most of us really do think that pro-choice means personally OK with it in some circumstances?

Just wondering.

Posted by: just me | Apr 26, 2006 11:54:46 PM

I’m not as well spoken as everyone who posted earlier. I am a wife to a wonderful man,who was a single Dad to 2 small boys when I met him in 1992. In 1995, one year after we were married, a girl he had dated in 1989 filed for a paternity test. She had a baby in 1991. He never knew about it. She claimed to be on birth control while they dated. It turned out to be his biological child. We were devistated to say the least. At the time, we were raising his 2 boys and my son, (3 children). She already had 1 child out of wedlock. She won an order of 600 per month, they took away his lisence, biz lisence, and all our accounts and taxes were siezed. We lost everything within 8 months. We had to move in a studio apt. and go to food banks for over 2 years to feed our 3 boys while she gets $$, housing, Insurance, Medical, free edjucation, & on and on. because of CSE/DOR. What rights do men have? NON! They are just a paycheck for irresponsable woman who USE children for $$$ and emotional blackmail! I’ve known a few! If men had the same rights as women, things would change quick and I don’t think this Country would have this huge problem. If women knew that a man had a right to say NO, she would make other choices. SORRY women, but most of you are horrible and blame men for all YOUR bad choices and hold them accountable. IT IS A CASH COW!

Posted by: Lelia DeMello | Apr 26, 2006 8:10:46 PM

I THINK MANY PEOPLE FAIL TO CONSIDER THE MOST IMPORTANT FACTOR OF A FORCED PARENTHOOD; THE LACK OF EMOTIONAL ATTACHMENT FROM THE FATHER TO THE CHILD. I AM IN A SITUATION THAT HAS ME SO BITTER THAT AT ANY TIME IN THE DAY I HAVE SUICIDAL OR HOMICIDAL TENDENCIES. I NEVER WANTED CHILDREN BEYOND THE AGE OF 30, YET BECAUSE OF SOMEONE ELSE, I AM FACED WITH TWINS THAT I DON’T HAVE AN ABILITY TO LOVE. I’VE TRIED TO VISIT WITH THEM AND EVEN TRIED TO TALK WITH THEM. THE HARSH REALITY IS THAT I WILL NEVER LOOK UPON THEM AS I DO MY OTHER CHILDREN. IN FACT, I LOOK AT THEM AS CAUSES THAT WILL KEEP ME FROM PROVIDING FOR MY OTHER CHILDREN.

LET ME LET IT BE KNOWN, I DON’T WANT ANYTHING TO HAPPEN TO ANYONE WHO IS ALREADY HERE. I JUST TRULY DON’T WANT THIS BURDEN AND I TOLD THE MOTHER THIS THROUGHOUT OUR RELATIONSHIP. IN FACT, SHE SAID HER TUBES WERE TIED AND COULDN’T GET PREGNANT. SHE HAD THREE OTHER CHILDREN AND NO JOB PRIOR TO THE BIRTH OF THE TWINS. NOW, WHAT KIND OF SENSE DOES THAT MAKE? IF I CAN BE EVEN MORE BLUNT; LOOK AT THE STATE OF SOME URBAN AREAS, MINORITIES (I AM A BLACK MAN) ARE PRODUCING OUT OF WEDLOCK CHILDREN AT A RATE SO ALARMING THAT IT IS REDICULOUS TO SUPPORT THE RIGHT OF CHOICE FOR WOMEN OR MEN WHEN THE ECONOMIC STATE OF THE PARENT DOESN’T SHOW THE ABILITY TO SUPPORT THEM WITHOUT GOVERNMENT ASSISTANCE. WITH THIS BEING THE CASE, WHY SUBJECT ANYONE TO FORCED PREGNANCY WHEN THERE IS NO “MODERN EVIDENCE” TO SUPPORT ANY SOCIAL BENIFIT FROM OUT OF WEDLOCK PREGNACY. THIS APPLIES TO THE MOTHER, THE ALLEGED FATHER, OR THE CHILD. THE TIME HAS COME FOR AMERICA TO TAKE A CANDID LOOK AT THIS PROBLEM. I STRESS THE ISSUE IN THE BLACK COMMUNITY BECAUSE IT IS THE ONE THAT IS MOST EASY FOR ME TO IDENTIFY WITH. ANY ARGUMENT ABOUT MORALITY ARGUEMENT IS THROWN OUT OF THE WINDOW FROM THE MOMENT 2 UNMARRIED PEOPLE HAVE SEX. TOO MANY BASTARD CHILDREN ARE BEING BORN TO WOMEN WHO ARE DOING NOTHING SHORT OF BREEDING. MOTHER’S HAVE TRUE INTANGIBLES THAT MAKE THEM SPECIAL. GIRLS ARE HAVING BABIES AT 14 AND 15 AS IF IT WERE A “RIGHT OF PASSAGE” OR BADGE OF HONOR. I’M SURE IF YOU LOOK INTO THEIR HISTORY YOU’LL SEE SOME SORT OF NEGATIVE PATTERN. MOST OF THE WOMEN I KNOW WHO HAVE MULTIPLE CHILDREN HAVE MULTIPLE FATHER’S FOR THEIR CHILDREN. ALSO, THERE ARE A NUMBER OF WOMEN WHO HAVE MULTIPLE CHILDREN WHO HAVE NEVER BEEN MARRIED AND PEOPLE TALK ABOUT THE MORALITY OF KEEPING CHILDREN. THIS CYCLE ONLY BENIFITS THE CRIMINAL JUDICIAL SYSTEM, BECAUSE IT JUSTIFIES MOST OF ITS EXISTENCE BY PROVIDING BODIES TO KEEP IT IN MOTION. ALMOST EVERY MODERN STUDY WILL SHOW THAT THERE IS NO CORRELATION BETWEEN SUCCESSFUL AND ABSENT FATHERS. MOST CHILDREN ARE BORN FROM A SEXUAL ACT TO RELEASE PRESSURE OR PLEASURE. THAT IN NO WAY DEMONSTRATES A DESIRE FOR ALL MEN WHO HAVE SEX TO BE FATHERS. IN MY OPINION, THERE ARE ONLY TWO REAL REASONS THAT THE COURTS HAVEN’T REALISTICLY ADDRESSED THIS ISSUE: 1) THE AFFECTS ON THE GREATER POPULATIONS MALE ISN’T AS SEVERE AND 2) IT’S A CASH COW THAT RAPES THOSE WHO ARE LEAST ABLE TO DO ANYTHING ABOUT IT. YOU HAVE THE ABILITY TO GO INSIDE THE NUMBERS. DO IT AND TELL ME WHERE I’M WRONG.

Posted by: GDOSS | Sep 13, 2005 9:56:00 AM

Ethan, I certainly did not intend to misrepresent your argument, although it is possible that I did not fully understand it. In order to clarify my concerns, why don’t I got back to your original op-ed. In this piece you proposed three remedies as well as a request for women to take their partner’s desires into account.

On that issue, of consulation and discussion between partners, I agree with you, and I believe that I’ve made that clear. It is in everyone’s best interest to discuss situations with all those affected by them. Barring extraordinary circumstances (abuse, inability to find partner, etc.) consultation should take place. And we both agree that, in the end, it is the woman’s choice that rules.

Your third remedy (I realize I’m going out of order, but I’ll try to be as clear as I can) involves creating a contract which allows a woman to recognize that her partner does not desire paternity and absolve him of any financial responsibility for the resultant child. I don’t see how this isn’t already a possibility (though it may not yet be enforceable). Child support and custody only come before the courts when there is a dispute between parties. If the mother chooses not to pursue child support than the father does not owe any. So, I’m perfectly happy to agree with you on this point.

Your first point, allowing suits charging forced paternity as intentional infliction of emotional distress, is rather more thorny. The decision to bear a child is not a malicious one, and quite frankly not made with the intent to harm. The elements of intentional infliction of emotional distress are: “In order to prevail in a law-suit for intentional infliction of emotional distress, the plaintiff typically must show the following: (1) the defendant intended to inflict emotional distress; (2) the conduct of the defendant was extreme and outrageous; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the resulting emotional distress to the plaintiff was severe.”* While the third and fourth elements may be proven, I highly doubt any court would grant the first two elements. The first element, intent, is difficult to prove because the distress is the side effect of a woman’s decision to bear a child to term, and not the desired outcome. In other family law an analogy may be made to a custodial parent moving: if the move is being made to deprive the noncustodial parent of visitation the move is judged to be illegitimate, however, if the move is being made for clear financial or social motives and the deprivation of visitation is an unfortunate side effect the move is judged to be legitimate and is allowed. The second element would be even more difficult to prove as it relies on a judge to consider bearing a child to term as an extreme and outrageous act. Considering that the majority of the country considers bearing a child to term to be the correct, and in many cases only, moral choice I doubt that this element will ever be proven. (Obviously cases such as Irons would be able to meet this burden. I think that everyone would be outraged by the intentional theft of sperm to create a child with the sole intention of inflicting emotional and financial damage. But since I think that the guy is a liar I can’t really side with him.)

Your second remedy, simply absolving unwilling fathers of their financial duty to their children, was the remedy that I was focusing on in my earlier posts. I concentrated on this point, admittedly to the exclusion of the others, because I found it to be the most troubling both legally and morally. First of all, it does not take into consideration the rights of the child to support, a right that has been the bedrock of family law for years. I will not belabour this topic as I believe that I have covered it exhaustively in my earlier posts. However, I have yet to hear your answer to this dilemma, both legally and morally. Perhaps you simply believe that the law is wrong and that a child is not entitled to the financial support of its parents. I don’t know what you think about this topic, but I do know that if you want to change this you’ll be taking on the entire family law system. I also would like to repeat the point I made at the end of my last comment, that any law which allows a man to deny child support should his will not be followed would become a dangerously coercive tool disproportionately effecting the poor and vulnerable.

In the end I think the best choice for actually solving issues of unwilling paternity is prevention and not subsequent remedies. If unwanted children are not conceived (or are not conceived at nearly the rate they are now) then this issue will never come up. In order to implement such prevention a number of issues must be faced. First, the right of women to abortion must be enshrined and no longer controversial, and abortions must be cheap and easy to obtain. None of this is currently true – women are still threatened and shamed for daring to abort and many women do not have access to any abortion services at all. Second, the right of women to cheap and effective birth control must also be enshrined. But birth control is still not as easily available (or as cheap) as it ought to be, and there is a growing movement in this country to do away with is entirely. Third, men’s access to hormonal birth control should be drastically improved. A male pill would go far in ensuring against unwanted pregnancy. Using a condom and female birth control already prevents the vast majority of unwanted conceptions – adding another layer of protection on top of that can only improve matters. It would also give men more control of their own reproductive systems, which is obviously a worthy goal. Quite frankly, if your goal is to minimize the number of men who are stuck with unwanted children, then your best bet is prevention.

*http://www.hofstra.edu/PDF/law_labor_cavico.pdf

Posted by: rivki | Apr 8, 2005 11:57:17 PM

In some class, long ago, I wrote a piece similar to yours. I was shocked at how many people had never even considered the issue, though presently surprised at the number that said something like, “you may have something there.”

I think I went further than you and said a man should have the right to opt out, even if there were no protective measures taken at the time of conception. Though I would say in such a case that the man would then have no more rights vis a vis the child than some stranger, but he similarly would have to contribute to the costs of the birth or abortion. I think I would add that the man would have to make his decision within a short period of time after being informed, and that it would be irreversible.

Posted by: Ugh | Apr 7, 2005 7:47:25 PM

I don’t get it.

My buddy Orin is miffed by anecdotes that Bob Brian Leiter (poor Brian! he was misnamed in the WSJ earlier) has shared regarding the “strategery” going on at law schools and colleges, through which lower ranked schools are apparently turning down candidates who are expected to end up at higher places, or at least are placing extra obstacles before conferring admission.

Doesn’t this make sense though, even if it instrumentally helps schools out for US News purposes? Is it really that bad? What it does is moderate the tendencies of the superstar (winner-takes-all) economy (as Robert Frank has called it), where people at the top vacuum up all the goodies (or offers of spots).

When I was applying for college, I got rejected at Princeton, waitlisted at Brown, and accepted at Harvard. I always suspected there was some collusion: Harvard happened to be my first choice by far (even though I may have received a better education at Princeton or Columbia). So if Princeton had given me a slot, it would have diminished (though not eliminated) its ability to take someone who would have gone there in the first instance. Of course, Princeton probably knew what they were doing in rejecting me, but the point stands: there’s nothing wrong with seeking out extra signals of commitment.

The clerkship market and law school faculty hiring should play this game even more. (Sort of like the match system in medical residencies, I suppose.) To be sure, some schools “lower” down in the food chain don’t bother pitching themselves to certain candidates because they seem out of reach and it would a waste of faculty time and money to go after them. But many schools hiring practices seem positively bizarre, where schools ranked far down in the second tier are actively bidding on people chased by Harvard, Yale, and Stanford. There are so many quirks and pathologies associated with faculty hiring (and we will blog on that too eventually), but surely this is one of the stranger ones. It has the effect of keeping out perfectly wonderful candidates from schools that would benefit from their presence.

So, Orin, Brian, why shouldn’t schools make educated guesses about where people want to go, and give them opportunities (such as the “please write us to confirm that you want to be on the wait list” letters) to send the correct signals?

What moral dimension am I missing here? That top people DESERVE all the slots they can get to exclude others? That can’t be the case, especially in the markets we’re discussing. Is the scandal here merely ex post whining?

UPDATE: A wise comment below reminds me that I had forgotten something crucial, so crucial that I am almost prepared to recant my critique, though here too, I invite more comments. Students, unlike clerks and entry-level hiring, pay a fee to the schools for consideration. Does the payment of that fee morally entitle applicants to be treated differently than they are now? I guess it’s unclear whether students are bargaining for fair and full consideration, or merely a lottery ticket as it were. Ex post, we might think the fee should allow top candidates to “buy” more admission spots. Ex ante, we might think the fees are simply admission tickets to this horse-trading scheme, in which schools reasonably divvy up scarce slots to schools.

DM

Posted by Administrators on April 7, 2005 at 06:08 PM

» Offer and Acceptance from Class Maledictorian Admissions officers should ding people they think will not attend . . . [Read More]

Tracked on Apr 8, 2005 11:17:06 AM

» The Games Law School Admissions Play from CALI’s Pre-Law Blog This question on fee waivers was submitted to me:…if I get a fee waiver from [a] school, what are my chances of actually getting in? Obviously they must think I am somewhat qualified, but when I look at the statistics for a particular school, my L… [Read More]

Tracked on Nov 14, 2006 12:51:38 PM

Comments

Susan’s consideration is certainly a valid one. Another one might be in-state tuition. Perhaps someone would rather pay less money to attend a lower-ranked in-state school. If said person has a 180 LSAT and a 4.0 GPA, s/he might get yield-protected at an in-state school ranked in the 30s and admitted to Harvard, Yale, and Stanford. The person may have a genuine desire to practice locally, for which the connections garnered at the lower-ranked local school might actually be more helpful.

Posted by: 3E | Nov 5, 2006 10:17:53 PM

One concern I haven’t seen raised here regards non-traditional students. I am one such, and when I was applying for law schools I was trying to get into a school in the same city where my husband was matched for medical residency. Thus I was paying to collect admissions — not because I needed to stroke my ego, but because the residency match process results in only a single option. I needed the maximum number of options on my end to increase the chances that he and I would end up in the same city. Thus I paid for several application fees. Having a strong academic record meant that every school I applied to admitted me. It would be ironic if such a strong academic record actually counted against me and limited my options.

There are a hundred personal and rational reasons for someone with a strong record to apply to (a) many schools and (b) lower-ranked schools, and to want to get in to all of them. If we apply and pay (and go through all the hoops that each school requires of us) then the schools should take the time to evaluate each application fairly and to admit those students that they would like to be part of the class. That’s the deal we made when they cashed my check.

This isn’t just about money, either. It’s about not making choices for me. If I choose to apply to Michigan (which I did) or even Vermont (which I also did) I must have some reason and it’s really not appropriate for either school to second guess why and determine that my reason is not good enough (beyond evaluating why I want to go to law school at all, of course).

And regarding Michigan’s admissions, there’s plenty of material on their search for balance in the quality of the incoming pool in terms of more than numbers in Grutter v. Bollinger.

Posted by: Susan | Apr 12, 2005 5:51:13 PM

Well, I guess I’m flattered that a short, typo-riddled response written between my morning shower and commute has seemingly invalidated the argument of an experienced lawyer and earned me the label “wise.”

For what it’s worth, though, I’m not so sure that DM should recant his critique based on the application fee issue. I don’t agree that the practice of wait-listing or “holding” overqualified candidates is some sort of breach of contract. Applicants pay a school to consider their application by whatever standards the school elects to use. Applicants’ expectations of how the process will work is usually based off of a combination of hearsay and the body of admissions counseling books found in your average bookstore; both of which are based in turn roughly on what schools have done in the past. While these are often reliable sources, their descriptions of the admissions process should not be seen as terms of a binding contract between applicants and the schools that they apply to.

The practices referred to by Prof Leiter were not popular in the recent past; accordingly, this year’s class did not expect these types of tactics from admissions offices. This is a source of consternation, because our class was subject to an admissions process that it didn’t truly understand. But that doesn’t mean that the process was immoral or some sort of breach of contract. It was just frustrating, and something that merits a response along the lines of what I was trying to convey in my earlier post: annoyance.

In reality, I agree with DM’s original position; this practice probably improves the admissions process overall by allowing schools to choose students that really want to enroll at their institutions. Also, I think we have to keep in mind the fact that most of the possible remedies to these tactics are impractical. It would be impossible to expect school to refund application fees to overqualified students that were waitlisted, for example. And, for a number of reasons, I don’t think that raising the application fee in order to deter applicants from applying to too many schools is a good idea, either.

But none of that keeps me from moaning about the intricacies of the law school admissions process, and I hope to continue my practice of moaning about the law school and job search experiences when those come, as well.

Posted by: Jeff V. | Apr 11, 2005 10:33:08 PM

What evidence is there that there is yield protection going on here? All we know is what posters choose to tell Leiter about their own records. Applicants don’t even know the full contents of their own applications in most cases – they haven’t read their own recommendations. There are lots of reasons someone with good numbers can be wait listed at a school they seem to be able to gt into easily – a recommender may have said something to indicate the person was arrogant, or difficult to get along with, or painfully shy (all qualities that, especially at a small school, make the person undesirable as a member of a class, and will make them a problem in the job placement process once matriculated). Or the applicant may have been careless in submitting his or her application and screwed up a find-and-replace – saying in their Chicago essay how they can’t wait to attend Harvard, or have submitted a personal statement and resume full of typos. Or the applicant may have a criminal or disciplinary history that gives the admissions committee pause. Or the applicant may be a poor and/or careless writer, have a weak resume, have earned a high GPA but at a school known for major grade inflation or by taking an easy courseload, etc, etc. After all, at Chicago, for example, one of the things that can happen when you’re put on the waitlist is an interview – if one of the things listed above is a problem in your application, they might want to meet you and see what the story is. If you can’t be bothered to come for the interview and clear it up, why should they admit you?

The top schools probably have significantly more people apply with numbers *above* their medians than they have seats, and they also have a lot of people with numbers below their medians that they *want* to accept because they’re interesting or diverse or talented or whatever. They can’t accept everyone. You can call it yield protection if you want, but it’s just the selection process.

Applicants spend so much time complaining about how they think law schools make all their decisions on the numbers, but when they don’t get in where they think they should on the numbers, they get upset. If you want schools to admit people for the people they are, then understand that the numbers aren’t going to be a perfect predictor.

And if you want schools to stop gaming the system due to US News, then stop giving so much power to the US News rankings, by saying things to schools like “I’m going to go to Columbia instead of NYU, even though I like NYU better, because Columbia is #4 and NYU is #5 and I can’t turn down a better school for a worse one.”

Posted by: Rachel | Apr 9, 2005 12:54:52 PM

“If a candidate has numbers that are above a schools’s 75%, and gets waitlisted because the school is yield-protecting, I imagine an admittance would be rendered rather quickly if the candidate calls the school to emphasize his or her interest.”

But that’s the “reading between the lines” thing I was talking about. Most applicants would just be incredibly disappointed that they weren’t accepted at their dream school, despite trying so hard in UG and on the LSAT. Why leave it up to the applicant to guess the secrets of the admissions process?

“Or perhaps the candidate could have made his or her genuine interest known in the actual application.”

Seriously, what applicant doesn’t try to get the school to believe that they have a genuine interest. Short of saying that you guarentee that you’ll matriculate, it’s pointless. But this is another area where an applicant would have to know exactly what she was doing when applying. And this application process is hardly transparent. It’s not what’s advertised on the application, that’s for sure.

“However, what happens is that the “overqualified” applicant knows he or she is overqualified and gets miffed that a school with “only a ranking of X” wouldn’t just admit him or her right off the bat.”

Actually, I very much disagree. Admissions professionals certainly have a much better idea of who is more and less qualified. If an applicant knew where she was well qualified, she would never apply to safety schools at all. She’d only apply to one school.

“I bet there are “overqualified” applicants who didn’t find themselves yield-protected. Who are these people? They’re the ones who applied early (often an indicator of interest) or who tailored their personal statement and other application documents to each school.”

You have no evidence that this works to prevent oneself from being “yield protected.” Furthermore, it is another way that an applicant has to guess how the law school admissions game is played. It’s another way that an applicant has to guess right about the admissions process — another way that the admissions process is not as advertised.

“”Overqualified” applicants who send out the same packet to every school right before application deadlines and expect to get in on the numbers (but then also expect their reach schools to look at their “soft” factors) are asking for what they get.”

Again, you don’t have anything close to evidence that this is actually the case — that it’s the applicants who look like they don’t care who don’t get admitted. In fact, I’d say that this is exceedingly rare for applicants of this caliber. The tough thing is that when you get to that level of school, probably every applicant looks as though she has every intention of matriculating. That’s the tough part.

Posted by: Mike | Apr 8, 2005 5:01:32 PM

“Why should an applicant have to be put on a waitlist, write an extra essay, read between the lines, and wait until April or May to be accepted to a law school — just because that applicant is overqualified? “

If a candidate has numbers that are above a schools’s 75%, and gets waitlisted because the school is yield-protecting, I imagine an admittance would be rendered rather quickly if the candidate calls the school to emphasize his or her interest. Or perhaps the candidate could have made his or her genuine interest known in the actual application. However, what happens is that the “overqualified” applicant knows he or she is overqualified and gets miffed that a school with “only a ranking of X” wouldn’t just admit him or her right off the bat.

I bet there are “overqualified” applicants who didn’t find themselves yield-protected. Who are these people? They’re the ones who applied early (often an indicator of interest) or who tailored their personal statement and other application documents to each school. “Overqualified” applicants who send out the same packet to every school right before application deadlines and expect to get in on the numbers (but then also expect their reach schools to look at their “soft” factors) are asking for what they get.

Posted by: kristine | Apr 8, 2005 4:40:13 PM

Perhaps I’m oversimplifying, but doesn’t the impact of accepting overqualified applicants occur when those applicants actually accept? After all, over-enrollment can only happen when people you don’t expect to attend your school actually do.

Posted by: Eric | Apr 8, 2005 4:07:09 PM

Why should an applicant have to be put on a waitlist, write an extra essay, read between the lines, and wait until April or May to be accepted to a law school — just because that applicant is overqualified? Why should an applicant have to put a deposit down on Stanford when she wishes to attend Michigan — just because Michigan is playing a waitlist game with overqualified applicants (i.e. the process takes so long that the applicant wouldn’t hear until mid to late April)?

And yes, there is truth to the notion that a lot of things can make you competitive for admissions to a great law school (e.g. diversity, experiences, hard factors). But the point is that no matter what you’re considering, if you’re putting an applicant on the waitlist (or rejecting their application) b/c they’re overqualified, it may very well be a breach of contract — that contract being the application for admission. Perhaps I’m wrong. At best it seems unethical.

And you can try to justify it, I suppose. But it doesn’t change the fact that the motivator for all of this is a ranking put out by a magazine that uses an flawed methodology. It’s sad that such great law schools pander to this. It would be better if law schools jointly decided to not respond to US News until they changed their methodology. But I assume this violates antitrust law somehow.

Posted by: Mike | Apr 8, 2005 2:00:52 PM

You might want to consider (analogize to) the way residency slots are filled for graduating MDs. I believe they apply to several programs but also provide a rank preference. Often, the new MD is qualified for each residency slot but not offered all slots b/c she ranked one lower than another.

Couldn’t the law school admissions process be thought of as having an implied ranking system? Admissions folk can sometimes tell when an applicant is applying to the school as a safety. Why waste a slot when there is such a slim chance of the applicant accepting the offer for admission?

Regardless, job offers work the same way. Maybe it’s a good learning process for the real world.

Please ignore if repetitive (I haven’t read the other posts).

Posted by: Dubya | Apr 8, 2005 11:32:57 AM

Mike, the problem is that all else is not equal — the 3.8/178 group is, on average, not as enthusiastic about attending Chicago, Penn, or Michigan as it is about attending Harvard and Yale. Are there *some* people in that group who have Michigan as their dream school? Of course… and those people tend to get in.

Three of the four schools mentioned in Leiter’s post (Michigan, Chicago, and Georgetown) have early decision programs. If you have a 3.8/178 and have your heart set on Chicago and not Harvard, go apply early decision to Chicago… since early decision binds you to attend, schools are not going to engage in yield protection during that process.

However, even outside of early decision many 3.8s/178s are accepted to these schools — these schools are NOT blanketly rejecting “overqualified” applicants. Some get in, some don’t get in. In fact, these schools are not even outright rejecting these people — it seems that when these schools have questions about a candidate’s dedication, they put them on some sort of “priority waitlist,” with it being implied that if they make it clear they wish to intend (ie. writing a short essay) they will be accepted. Of course, it seems as if many of the impacted individuals are skirting around this fact — and (not surprisingly) it seems like few of them are even doing these optional essays (perhaps because they already have their Harvard acceptances in hand and don’t care about Chicago and Michigan?).

Keep in mind that these schools already openly discriminate based on race in order to ensure diversity in their incoming class, for they feel diversity positively adds to the law school experience. Like diversity, achieving a critical mass of students who truly *want* to be at the school and enjoy being at the school positively adds to the law school experience (who would want to go to a law school where 75% of the student body is only there because they didn’t get into Harvard, Yale, Stanford, Columbia, and NYU?). Just as a rejected white applicant with numbers higher than the average black applicant cannot use the application fee as an excuse to sue for admission, a rejected or waitlisted 3.8/178 who didn’t properly convey enthusiasm for the school relative to those with lower numbers cannot use the application fee as an excuse either.

Posted by: Anthony | Apr 8, 2005 11:12:18 AM

Applicants have no conception of the rules of the admissions game (truly a game for some, although not so for applicants). And for the occasional applicant for whom their longtime dream is to attend Michigan or Boalt (instead of Harvard or Stanford), such policies are fundamentally unfair. Applicants agree to pay a fee to be considered for admissions based on credentials, not based on whether they’re expected to matriculate. The reasonable implication of the law school application process is that if your academic credentials outweigh another student’s academic credentials (assuming, of course, all else is equal and you’re being primarily admitted based on what are traditionally called “hard factors”) you’ll receive an admissions decision equal to or above that of the other student (i.e. an acceptance is better than a hold or waitlist and a hold or waitlist is better than a rejection).

To current and recent applicants this conversation comes off as law professors and administrators trying to rationalize a tactic that borders on being unethical (but is, of course, necessary for their schools to maintain rankings in a publication with severely flawed methodology, albeit an important publication nonetheless. And although I have little experience with the law, I wonder if this tactic isn’t a breach contract (it certainly seems like a stretch that any reasonable person would assume otherwise).

Posted by: Mike | Apr 8, 2005 10:43:19 AM

Maybe the student with the 3.8/178 needs to ask himself why he applied to so many schools. In general law applicants apply to way too many schools, employing the ‘shotgun’ method of applications. Maybe if the applicants were a little more selective in their applications, schools would have an easier time in their admissions process and wouldn’t have to ‘game’ it. If you look at MBA applications, students typically apply to between 2 and 4 schools. Many law students will apply to between 6 and 12 schools. The difference is MBA applications are significantly more expensive and some have more essays (take longer). But an additional difference is the students are older and thus possibly a little more mature in figuring out what program they want to attend and why. The net result in this is that the yield of the best MBA programs range from about 60 to 90% where as law schools are significantly lower (across the board). Instead of blaming the law schools for taking ‘defensive’ measures, let’s blame applicants who shotgun applications for no other reason than to stroke their own egos.

Posted by: Kevin | Apr 8, 2005 8:40:57 AM

I don’t mind this practice. I just don’t think it’s fair for law schools to charge an application fee if they do. When an applicant pays an application fee, they are paying for a school to consider their application and make a decision. When a law school decides to waitlist or “hold” an overqualified candidate, this looks to me like they are not fulfilling their end of the bargain.

I applied to 17 law schools (although I think only 1, Chicago, really tried these tactics on me), and I only got a few fee waivers, so I probably spent something like $700 on application fees. This is not a trivial amount of money for a new colle grad.

Also, I think that this practice suggests that the yield stat is too easily manipulatable to really be included in the USNEWS ranking.

Posted by: Jeff V. | Apr 8, 2005 8:20:12 AM

It’s not about the costs of sending out a waitlist mailing versus an acceptance letter. There are several factors in play:

1) The costs of overenrolling are HIGH. If you automatically accept everyone with a certain GPA/LSAT combination (who aren’t felons and the like), you run the risk of overenrolling if yield is higher than usual. Go look at what happened to Penn just a few of years ago The school accepted the same number of applicants as usual, assuming that the yield rate was going to be constant — however, a lot more of those applicants enrolled than in previous years. End result? The 1L class is 50% larger than it was in the past, and the school spends god knows how much money on having additional sections of 1L classes — not to mention dealing with overcrowding/space issues, and the opportunity cost of having fewer upper level courses available for 2Ls/3Ls because of the extra 1L classes. For a more extreme example, look at what happened to Princeton undergrad a few years ago when it overenrolled — it had to spend millions of dollars to build new dorms to house all the extra freshmen.

Keep in mind that even a *tiny* change in the yield rate can cause catastrophic results. For example, during the 1995-1996 admissions cycle, Yale’s undergrad estimated that its regular decision yield rate would be between 46 and 50 percent; however, Yale’s regular decision yield was 52 percent that year. At first glance, one might not think this is a serious problem. After all, 50 percent and 52 percent are close enough, right? Wrong. While Yale had been planning to enroll around 1,335 freshmen that year, due to the higher than anticipated yield it ended up enrolling 1,415 freshmen — the largest freshman class in Yale’s history. As a result, Yale had to spend a lot of money offer more courses than normal that year.

In contrast, the costs associated with underenrolling are low — worst case scenario, you accept too few people, and you just go and accept additional people off of the waitlist. In the best case scenario,however, if the yield rate were to be higher than anticipated, by accepting fewer people you can avert an overenrollment crisis. For instance, if Penn Law had been more conservative in its admissions a few years back, it could have avoided overenrolling by 50%. In other words, underenrolling doesn’t have too much of a downside.

2) Now, you might counter that by saying that a school should just automatically admit those at the top of the numbers pool, and then just accept others as they turn it down. However, that does not work in practice — admitting a lot of top students who then turn the school makes it harder for the school to then attract the same students that are more likely to enroll.

Let’s say that someone with a 3.9/167 really wants to go to Michigan, but Michigan has a practice of autoadmitting the top students and then only making offers to those with lower numbers once the top students turn them down. After all, the 3.9/167 would get accepted eventually, right? This sounds good in theory, BUT in practice the world doesn’t work like that. Deposits are usually due in late April — and, like it or not, many admitted students never inform the other schools they got into that they’ve accepted offers elsewhere. So, the guy with a 3.8/178 who got into Harvard, Yale, Columbia, and Michigan might send a deposit to Yale by April 31, but never formally inform Harvard, Columbia, and Michigan that he sent a deposit to Yale and is no longer planning to attend.

So, what happens to Michigan if it autoadmitted people? It would suffer from a ridiculously low yield, but not know that it’s yield is ridiculously low until right before or right after deposit deadlines for both itself and other schools. By the time Michigan accepts the guy with the 3.9/167, chances are he would’ve sent in a deposit to Duke or Cornell — and by then, it’ll be significantly harder to convince that individual to completely change his plans. It’s one thing to take a few people off a waitlist if the school underenrolls — it’s another thing to fill significant chunks of a class like that.

3) Yet again, there’s the issue of wanting a student body where the overwhelming majority of students *want* to be there. Do you think Chicago wants to have a student body where 75+% of the students are only there because they got rejected from Harvard, Yale, Stanford, and Columbia? Do you have any idea how horrible that kind of environment is? Wouldn’t it be far more pleasant to attend Chicago if 75+% of the students there had Chicago as their #1 (or even #2) choice?

It’s not like Chicago waitlists or rejects everyone who applies with a 3.8/178 — if the Chicago admissions officers believe the 3.8/178 is likely attend Chicago if accepted, they’ll accept him. A 3.5/170 who had Chicago as his first choice (and made this clear to the admissions office by applying early decision, or by writing the optional essays) is a greater asset than a 3.8/178 who applied to Chicago as a safety school and ended up enrolling because he got rejected everywhere else. Of course, a 3.8/178 who has Chicago as his top choice trumps both other candidates — however, these individuals are relatively rare, but when a Chicago admissions officer knows Chicago is his top choice, the individual will be accepted (assuming there’s nothing else wrong with the application).

Yes, there are rankings benefits to this too — however, as Leiter pointed out, the ranking benefit is extremely small since acceptance rate is only 2.5% of the overall rank and the difference in acceptance rates among peer schools is already rather small. This practice isn’t for rankings manipulation, it’s for enrollment management and to bring about a better campus culture/environment.

Posted by: Anthony | Apr 7, 2005 11:56:20 PM

I’m not sure I understand the logic of not accepting an exceptional student. It’s not as if the law school is saving costs by placing them on the waitlist – they’re still sending the students the same amount of mail. Why not just send the student an acceptance letter?

The logic that admitting the top student takes a spot from somebody else doesn’t hold together. The school apparently knows that the student is likely to decline, so it can just accept one additional student than it believes it needs to fill its class. The worst thing that can happen is that more students accept than the school expects – the 1L class ends up a dozen students larger, but all of those dozen students are exceptional.

As such, its hard to view the waitlisting practice (if it is actually occuring) as anything other than a play to improve schools’ ratings.

As for mid-tier schools pursuing top professors, the practice seems explainable by probability versus reward. A middle tier school stands a much smaller chance of getting a prestigious professor than does a top school, but getting a single top professor will provide a proportionally larger benefit to the middle tier school than it will to a school whose ranks are entirely filled by outstanding professors.

Posted by: Kurt | Apr 7, 2005 11:11:37 PM

With respect to the comment that “there are many benefits to having a student body that is overwhelmingly made up of individuals who truly wanted to be there,” I’d just like to say that I completely agree.

My undergraduate institution was something of a tweener in this regard. Though Case Western Reserve is a good school and can provide a great education, it’s not Ivy. Problem was, a lot of the students there felt like they were Ivy material, and were upset that they had to settle. The result was an incredibly bitter student population, which made those four years seem a lot longer.

Posted by: Jeff | Apr 7, 2005 10:18:22 PM

I completely agree. From an email I sent to Prof. Kerr about this:

— If individuals with 3.8+s/175+s overwhelmingly prefer Harvard, Yale, etc. over Michigan, and consider Michigan their “safety school,” why should Michigan admit such individuals over people with 3.6s/168s when the latter group overwhelmingly sees Michigan as one of their top choices, and would genuinely be excited about attending Michigan if accepted (whereas the 3.8/175 group attending Michigan is almost certainly doing it because they got rejected from Harvard etc.)? There are many benefits to having a student body that is overwhelmingly made up of individuals who truly wanted to be there.

— The fact that this 3.8/178 applicant from a “top liberal arts college” felt the need to whine to Leiter about his situation makes me believe that he probably considered Michigan, Penn, Chicago, etc. his safety schools and didn’t bother to write any of the optional essays (ie. Penn’s highly important “Why Penn?” essay) for those schools. If an applicant doesn’t tailor his or her application to the school he is applying to, and doesn’t convey to the admissions officer that he truly would be excited about attending, why should the admissions officer accept the candidate over individuals who *do* take the extra step?

— Penn, Chicago, etc. are not devoid of people with high GPAs and high LSATs, including 3.8s and 178s. Clearly, there must have been something to distinguish this individual’s application from the 3.8s/178s who did get in; for instance, those other individuals might’ve applied earlier in the cycle, or may have actually written the optional essays.

— Furthermore, one can’t downplay the enrollment management benefits of a lower acceptance rate. A high acceptance rate (which would happen if Penn, Michigan, etc. automatically accepted everyone with a 3.8/178 regardless of other factors) greatly increases the chances of overenrolling, and the negatives of overenrolling are far worse than the negatives associated with underenrolling (if you underenroll you can just go to the waitlist — if you overenroll, you need to beg people to defer, or spend a lot more money on additional classes etc.). Penn and Chicago, for example, are among the smallest top schools, and the impact of overenrolling even by a little would be disasterous (especially for Penn, which is renovating several major 1L classrooms and therefore simply cannot accomodate a larger than normal 1L class — combine that with a 25% increase in applications and you can see why they’d be more conservative).

Posted by: Anthony | Apr 7, 2005 9:30:00 PM

The Retributivist Case Against the Death Penalty

The blogosphere has been abuzz about Sunstein and Vermeule’s paper arguing that capital punishment may be morally required. I have a long blog on that, which I will post later. In the meantime, let me get the shameless self-promotion out of the way first. A draft of my forthcoming piece on the death penalty is now available at SSRN. Its full title is State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of Execution, and it is coming out soon in the Summer 2005 issue of the Harvard Civil Rights-Civil Liberties Law Review. (Note that the version on SSRN is still a draft and pagination, format, etc. will change.)

Basically the piece explains how best to understand retributive justice, how it differs from revenge, and why that distinction can justify both former Illinois Governor Ryan’s blanket commutation of death row and a general abolition of capital punishment. The goal of the piece is to deliver a (figurative) punch in the stomach to those who justify the death penalty (e.g., various members of the Supreme Court and an array of commentators) in terms of retributive justice.

I will be grateful, of course, for any comments. If the comments come in the next few weeks, there’s a decent chance I’ll be able to revise the piece in light of them. Please send comments of any sort to our email account at prawfsblawg at gmail.com, and substantive comments below.

Posted by Administrators on April 7, 2005 at 04:33 PM

Over at The Conglomerate, there is an interesting discussion about the theory of contract law. Nate Oman has written two fascinating articles on the subject here and here. At the core of his most recent article is the claim that autonomy theories of contract should not be precluded merely because corporations must be seen as central to the practice of contract law. I whole-heartedly agree with this thesis and hope it gets the attention it deserves.

My own foray into contracts theory emphasizes that a general theory of contract will need to address three different sorts of contracts, all of which have a rightful place in contract law: contracts between individuals (Type I), between firms (Type III), and contracts between individuals and firms (Type II). No doubt, autonomy theories may have a proper place in all three Types. But surely the general theory of contract will need to be able to explain and provide guidance on the differences between the three Types. As the literature stands now, most theorists try to cabin one Type as the core of contract and proceed from there in theory-construction. In this forthcoming piece, (Download types_of_contracts_and_their_relevance.doc), I argue that this strategy must be abandoned. I’ll be fixing the draft over the summer and welcome comments.

Posted by Ethan Leib on April 7, 2005 at 03:05 PM

» Corporations and Autonomy from Tutissima Cassis My latestest offering on contract law is up on SSRN and is seeking a home amongst the law reviews even as we speak. The piece is entitled “Corporations and Autonomy Theories of Contract: A Critique of the New Lex Mercatoria.”… [Read More]

Tracked on Apr 8, 2005 10:18:33 AM

Comments

Sure they’re nice articles, Ethan, but do you really think that they’re really “fascinating”? I’ll conceded “not terminally boring,” sure. “Marginally more interesting than the average law review article” — maybe. But “fascinating”? That’s a pretty high hurdle for a contract piece. Now if the pieces had been on the Takings Clause, it becomes a different matter altogether.

—

Nice digs, Dan. And congratulations on the job, of course. I still think you would have made a nice addition to Tutissima, but the desire for one’s own proprietary blog is certainly understandable. (Now I’m wondering if you’re going to try to steal Chad.)

Posted by: Kaimi | Apr 7, 2005 10:21:31 PM

Part of this gets into the question of what is contract law. Interestingly, Fried and Stephen Smith “save” their theories by contracting what counts as contract law, e.g. damages rules aren’t part of contract law. Schwartz & Scott make a similar but expansive move, eg many contracts are governed by propertly law, etc.

FWIW, Brian Bix has a paper that he is working on that addresses this issue.

As for the holy grail, I frequently have my moments of doubt. I am working on a piece on duress right now, and I began my research by going through a bunch of cases, treatises, and basic practice materials, eg CJS, Am.Jur, etc. There is such a bewildering amount of factual nuance in the cases that it makes me despair of the possibility of creating meaningful legal theories. Maybe it really is ad hoc-ery all the way down.

Posted by: Nate Oman | Apr 7, 2005 3:28:42 PM

I am only first trying to get theorists to focus on the problem Dan-Cohen highlighted back in 1986: that different Types of contracts may deserve different treatment and different theoretical underpinnings. But maybe you are right that there is a holy grail that can unify contract theory. Much work to be done indeed!

Does the doctrine recognize the differences in contracts? That’s an empirical question that I will only first be able to undertake when I start teaching contracts in the fall. But Schwartz & Scott surely suggest that there are different regimes for Type I contracts, which often fall to property law to handle, and Type II contracts, which often fall to consumer protection law. We’ll see where this inquiry takes us.

Posted by: Ethan Leib | Apr 7, 2005 3:22:20 PM

Ethan: Thanks for the kind words. My contracts piece is a bit conflicted because while I don’t think that you can use corporations to dismiss autonomy theories, I don’t ultimately think that autonomy theories are adequate as theories of contract law. It makes me a bit mealy mouthed, but I hope I make up for it with fun factoids about medieval Italian corporate law.

I think that the typology you propose (endorse) is tremendously important. One theoretical problem is that the law of contracts itself doesn’t make a distinction between these sorts of contracts, at least at the level of doctrine. (Realistically, I think that judges notice who is sueing who in the lawsuits before them.) The theory tends to be homogeneous because the doctrine is homogeneous. Once the heterogeneity is recognized, I think that the theoretical respons has been as you portray it. My question, however, is that if theory becomes sensitive to the heterogeneity of contracts what happens? Do we end up having three more or less independent contract theories? Will every theory yield results at odds with current doctrine, namely policy suggestions that different sorts of contracts be treated differently?

The good news, is that the standard categories of efficiency, autonomy, and reliance that have dominated the theoretical debate for the last several decades are not going to get the job done. Lots of interesting stuff to be done. The problem is that working these sorts of theories out is damn difficult!

Posted by: Nate Oman | Apr 7, 2005 3:14:35 PM

Now that the Schiavo controversy has quieted down a bit, I think it is worth looking towards the future: How can we make certain that this sad story does not repeat itself? I should state up front that I, along with most other self-styled liberals and not just a few conservatives, felt that Schiavo’s feeding tube was properly removed. However, the case was a troubling one. The real bottom-line question was “What did Terri want?” In the absence of direct evidence of her wishes, the court was required to rely on hearsay, and different witnesses testified differently. Ultimately, Judge Greer chose to rely on husband Michael Schiavo and one of Michael’s siblings, and having read his opinion, I think properly so. But I’m not sure

that any of us can be truly confident that this is what she wanted. Further, in future cases, it is likely that different judges will assess similar evidence differently, and so everyone involved in these cases will face uncertainty.

Let’s ask the question this way: Would we rather (1) err in favor of keeping people alive on machines or with tubes against their wills, or (2) err in favor of allowing them to die them against their wills?

To me, the answer is blatantly obvious: we’d rather keep a few too many people alive than allow too many to die. The presumption should favor life, and I think most people, liberal or conservative, agree with me.

For the future, states should require a living will and/or a durable power of attorney in order to defeat the presumption favoring life.

This would carry three benefits:

1. It would affirm our commitment to life and end-of-life care; 2. It would promote certainty; and 3. Most importantly, it would create incentives for people to do what we really want: draw up living wills and power of attorneys. (These documents are available online and relatively simple to execute.) A living will in Terri’s case would have avoided the entire spectacle. Update: Here’s a link to a living will that is consonant with Halakha.

Posted by Administrators on April 7, 2005 at 02:06 PM

Comments

I am concerned about the idea of imposing a reasonable doubt standard in cases like this, though. We have well insulated reasonable doubt to criminal cases and expanding it into the civil arena may invite further expansions of that standard for politically popular causes. That said, federalism is the underpinning issue of the federal courts’ decisions here. The USSC isn’t going to get involved in family law issues, as they are traditionally a power reserved to the States and honestly they wouldn’t want a divorce proceeding to make it to their doorstep. Congressional involvement in that matter bothered me. I am a bit rusty in this area, but I have been meaning to look at the Rooker-Feldman doctrine for the first time since ConLaw. The idea that if a State does not do something the majority in Congress likes, that the federal government will step in an trample on the State’s decision is an insult to the entire concept of Federalism & dual sovereignty. Not to mention antithetical to the traditional precepts of the Republican party. My pre-coffee $.02 for the day.

Posted by: Joel | Apr 8, 2005 9:58:05 AM

Since Joel and I are mostly in agreement, I will address my comments here to Clerk, who I think makes valid points. First, whatever the polls say about what most Americans want, I still believe that most Americans would prefer a presumption in favor of life–and a relatively strong one at that. I certainly do, particularly in a case such as this one where Schiavo herself was apparently experiencing little pain. Second, the trouble with succession preferences (spouse, then parents, then whomever) is demonstrated precisely by the Schiavo case. As I understand it, Florida law DOES preference the spouse over the parents, unless the parents can prove through litigation that the spouse is wrong as to the wishes of the patient. So you are going to get ugly court battles, and “the truth” will always be in question. That said, I do agree with you that there is a serious concern that people will not draw up such documents, even if the law were as I have proposed. Perhaps a compromise could be worked out. Judge Greer (properly) applied the “clear and convincing evidence” standard. Maybe we should instead use a “beyond reasonable doubt” standard, which would require more evidence that someone wanted to be disconnected. A living will or power of attorney would conclusively rebut the life presumption, but it would not be absolutely necessary. For instance, where “everyone knows” or agrees that this is what the patient wanted, the presumption would also be rebutted. Of course, this is a compromise, and as such, it vindicates neither position. It reduces incentives to have living wills (which is a bad thing); and it invites Schiavo-type shenanigans (which is also a bad thing). Further, we have to really assess whether the doctrinal difference between “clear and convincing” and “beyond reasonable doubt” actually make a pratical difference. Would Michael have met the “reasonable doubt” standard? I have no idea. This is why the most offensive thing about this entire case was congress’s involvement. These are difficult issues, and there can be differences of opinion. The Supreme Court basically set the framework in Cruzan in determining that a person has a constitutional right to refuse treatment; but the Court properly left it to the states to determine how such a refusal must be expressed. There is value to federalism, and so let’s let it work. Let Florida adopt the living will requirement; let Connecticut adopt the “clear and convincing” standard; and let Michigan adopt the “reasonable doubt” standard. In the future, I intend to post more on this particular viewpoint–the role of the Court, the federal government, and the state–in the context of abortion and same-sex marriage.

Posted by: AmosAnon1 | Apr 7, 2005 5:53:58 PM

While the point and counter-point offered are both valid, I come down on the side of Anon on this. If we are going to have political reprecussions because of courts following the law and otherwise impartially doing the job of the judiciary from the Schiavo debacle, lets have it be a clear cut policy preference. FedClerk, you have a point that people are not going to consult an attorney much more often now and that there will still be many people without a living will or a durable power of attorney for health care decisions. Should this matter at the policy level? We in the law will often ignore the realpolitik of the situation and work with the abstractions embodied in the law to paint with the broadest strokes the policy and work from there. Such is the nature of the common law systems and if we are going to avoid a protracted legal battle over the desire of patients, then lets look at enacting law, at the State or Federal level, that creates a presumption. Yes, there are people who may never get around to making their desires known who would not have chosen to remain in a PVS but who would be under this hypothetical law. I think you had it right at the very end of your post when you equated this sort of a policy to the nature of intestate succession. We just need to watch for several years to see if a change does occur.

Posted by: Joel | Apr 7, 2005 5:27:42 PM

This is an interesting proposal, and is strikingly similar to states’ intestate succession statutes. Those statutes also affirm general societal preferences (assets to spouse, family, etc) create some air of “certainty” and REALLY create incentives for people to create their own wills and estate planning devices. However, there are a few problems I see. First, while I agree on a general level that most people would in the abstract favor keeping too many people alive vs. killing too many people, according to the statistics I’ve seen, a majority of Americans would NOT prefer to be kept in a constant vegitative state. So the “presumption of life” might be safer, but it’s not likely to be effectuating the general will of the people (or the statistical likelihood that patient X wants to be kept alive). There are other serious problems with such a presumption in many cases. For example, even after Schiavo, many people will not draw up appropriate documentation. With an overriding presumption that can only be defeated with a legal instrument, many people may be “forced” to be kept alive, against their wishes, at a great cost (both financially and emotionally) to their families and society. What about the case where “everyone knows” the person wouldn’t want to be kept alive — let’s say this hypothetical person even told her physician so, but did not execute the legal instrument (or did not execute it validly). This person may be on a ventilator (or a feeding tube) for decades… her life isn’t being sustained, her death is being prolonged–against her clear wishes. In Iowa (where I’m licensed to practice, but do not practice law) in the absence of a durable power of attorney for health care or Iowa’s version of a “living will” there is a “decision succession” list for who decides whether to continue treatment that only prolongs the dying process. It goes something like: Spouse, children, parents, siblings, with the next class being able to decide only if there is no one in the previous class (or no one willing to make the decision in the previous class). Now, the ultimate decision can be litigated in court if there’s evidence that the decisionmaker is acting against the will of the patient (which makes the solution much sloppier than a presumption of life) but at least there’s a clear decisionmaker. This is a less “clean” process, but it probably works to effectuate the patient’s wishes more effectively than a life-presumption solution. It may be that a life-presumption would encourage more people to execute health care directives the way that intestate succession encourages wills. However, most Americans do not regularly consult lawyers and even after this mess, many will not seek to execute health care directives on their own. They are much more likely to talk about the issues over coffee, and those statements–hearsay though they may be–can be a possible basis to help loved ones make those crucial health care decisions.

Posted by: Fed District Clerk I | Apr 7, 2005 5:14:50 PM

AmosAnon1 is a regular contributor. AmosAnon2 is a composite figure. All comments should be emailed to the blawg and the relevant writer may respond.

I agree with the piece Dan linked to by Hillel Levin. However, even assuming that religiously observant Jews will agree with him, I think it is highly unlikely that Protestants and Catholics who oppose same-sex marriage on religious grounds would follow Levin’s logic. Jews, including religious Jews, grow up knowing full well that ours is not the dominant culture in society. Stores frequently close on Sunday, but rarely on Saturday (the Jewish Sabbath). Christmas is a national holiday, but Yom Kippur (not to mention the many other Jewish holidays) is not. For the most part, we accept this without any problem. We recognize that we are a minority, and we are generally (though not always) content to keep our religious practices and beliefs to ourselves. I suppose that having been oppressed in country after country for the past few hundreds of years has caused us to learn to separate our personal lifestyles from secular law. Religious Christians in this country do not necessarily have the same framework. Theirs is the dominant culture, and Christianity has shaped this country from its birth. I think it would be difficult to convince such people that they can separate their religious beliefs from what they believe is right for the country.

Posted by Administrators on April 7, 2005 at 02:00 PM

Even those who might have religious arguments against the practice of homosexuality should consider this article before making their mind up. It’s quite good. I wonder whether those from other faiths might reach a similar conclusion as Mr. Levin, the author of the shrewd piece in the Jewish Week.

Notwithstanding the argument there, this story from last week about the unification of religious figures in Jerusalem against the presence of gays does not lend hope. Indeed one would hope that there would be other issues the clergy could unite on: feeding the hungry, giving care to the sick.

I think it’s important to recognize that, even according to the NYT article, there are religious leaders from a variety of faiths who have denounced this spectacle of bigotry, and they are not without their minions and minyans. Thus to state, as some might be tempted to, that religion is bound up with bigotry, I think misses the palette of views available. The real (Jewish) question, to my mind, is whether there will be Orthodox rabbis willing to expend some moral capital to criticize the tenor of the comments and vitriol spewed by some of these other “leaders.” Please email me if you know any: their courage and decency requires light. The schisms in the NYT article are not only across denominational lines, but also within them, and there should be some reflection of the heterodoxy on homosexuality.

Posted by Administrators on April 7, 2005 at 03:01 AM

I appreciate the responses of readers to my recent “A Man’s Right to Choose.” It isn’t a definitive statement on the subject (how could I fit that into an op-ed?), but is meant to provoke more discussion. And I’m happy to engage in this idea further.

Let me say at the outset that I am far more interested in the moral story of a couple’s deciding to abort a fetus than I am in the legal one. If the publication had allowed me to, I’d have foregrounded my real point—and leave the “legal applications” for another day. That point is this: when a couple is saddled with an unwanted pregnancy, the woman ought to listen to the man’s desires before jumping to her claim that she can do whatever she wants with her body. The legal “right to choose” has confused the moral terrain—and has blinded us, I think, to how these decisions should be made in the first instance. Although the crazy case of the (alleged) sperm-stealing I mention in the article is obviously the outlier, I do think many reasonable and educated women assume that if they want to carry a baby to term, the man will just simply have to put up with it with no recourse even though the couple took every reasonable precaution to avoid a pregnancy. I think that default rule is troublesome. And I wanted to use the occasion to think through the issue.

I don’t ignore that support payments are there to help children any more than Rivki ignores that the support payments have the effect of helping the mother and incentivizing her to go through with carrying babies to term she might otherwise decide to abort, realizing that she doesn’t have resources to pay for the child’s upbringing. Moreover, I think it is insufficient to say, as Rivki does, that men just have to live with it. I think clever institutional design can help the problem and I’m only first taking a pass at what those new institutions might look like. Why shouldn’t men be able to contract out of paternity?

I do not mean to pooh-pooh the problems with dead-beat dads. These people are usually criminals—and should be treated as such. But we can’t deny that there are a class of cases where it makes sense to relieve the father. And I think that class is somewhat broader than the sort of outrageous conduct described in the Philips case.

To be sure, the deep place inside me that is making this argument is doing so from a radically pro-abortion perspective. People are too consumed with wanting and having biological children when the world is populated by too many children that do not have proper homes. Those children should be our priorities; we should not be bringing new ones into the world without caring for them. Accordingly, more incentives to abort seem perfectly justifiable. I realize, of course, that many people do not share this view.

I’m happy to continue this conversation; I hope to write a longer and more careful piece on the issue in due course and would love feedback.

Posted by Administrators on April 6, 2005 at 05:30 PM

Comments

Oy. I really hope I’ve been clear that Rivki is misreading me. Indeed, I feel she may be willfully misrepresenting the argument. Three out of four of the proposed solutions in the article she should have no quarrel with. In the article, my most important claim is that a woman should not jump to her legal right to choose before hearing out the semen provider’s positions. Is that really controversial? I can’t see how. But it still manages to raise people’s ire.

I further proposed that a man and woman jointly could contract out of forcing support payments. That is an option not apparently available under current law (that I know of) and could enable women to say: I agree with you, semen-provider, that we had agreed–explicity or implicitly–not to reproduce and that I now am choosing to carry that child to term against your wishes. Accordingly, I am enabling you to sign a document that will prevent me from trying to collect money from you to support this child for the next many years. While the support rights might belong to the child, I have the right to make decisions for the fetus now and am doing so, terminating your rights and responsibilities. The man still has to pay the cost of having a child in the world, an emotional cost that cannot be ignored. Is this actually deeply controversial? I’m not convinced it is.

Under a second potential legal implementation, the man can sue for intentional infliction of emotional distress. Obviously, there are evidentiary problems. Are they insuperable? I doubt it. If the woman was on the pill and the man concededly wore a condom and a medical miracle happened anyway, it isn’t clear to me that it would be inappropriate to relieve the father of support payments. I acknowledge this assumes that both parties were pro-choice when they had intercourse. There is a complexity if the man knows ahead of time that the woman would keep the child. If he is on notice, the equities may change. But I still hope having the discussion ahead of time might lead to contractual arrangements, as unromantic as they seem. Hey, so are marriage contracts and pre-nups. But many people get over it to protect themselves and reap the benefits thereof.

I know there are hard questions–both evidentiary and moral–about the garden variety case, where the man just wants an abortion and the woman doesn’t. I probably would cede some territory here down the road. But for now I’m content to expose a weakness of the rhetoric of “procreative choice” and think through ways to be more egalitarian about it. Nothing rides on Irons and Philips–it was always an ad absurdum to begin thinking through the limits of the right to choose.

Posted by: Ethan Leib | Apr 7, 2005 6:22:33 PM

This article — http://writ.news.findlaw.com/colb/20050309.html — (hey Dan, you might want to enable html comments) appears to cover the issues pretty well.

What about carefully crafted sex contracts? For example:

Dude and Gal agree to have sexual intercourse on DATE. Gal warrants that she has faithfully consumed oral contraceptives in accordance with an ordinary perscription covering DATE. Should Gal not have consumed such contraceptives, and should pregnancy result from this act of intercourse, Gal agrees to pay litigated damages, falling due on the child’s eighteenth birthday, of all child support sums which Dude shall be required to pay by any tribunal of competent jurisdiction as a result of the birth of this child. Gal shall have no liability if she has in fact consumed such contraceptives, regardless of whether pregnancy results.

It could go the other way too — Dude could warrant that he had a vascectomy, or is wearing condoms purchased from an ordinary supplier within the last month, and agree to pay for the abortion or alternatively pay damages for Gal’s share of child care obligations (also on 18th birthday) if he failed to do so and pregnancy results.

Apart from being a serious turn-off (oooh baby sign here yes oh god initial here yes baby ooh), do you think this would be fair?

Posted by: Paul Gowder | Apr 7, 2005 6:08:30 PM

Paul, I don’t think that we’re really in dispute with each other.

I just don’t think that what you’re talking about really addresses the issue that Ethan is bringing up. While I disagree with you in the case of the negligence issue that you describe, I believe I’ve already stated that cases of malicious intent are different then your run of the mill unintended pregnancy. Although, quite frankly, I think that unless sperm was obtained absent sexual intercourse, then the man is still financially responsible for his child. But Ethan is talking about all unintended pregnancies. All of them, even in cases in which birth control is used faithfully and correctly.

The reason I have a problem with your issue of negligence is that a) you’re putting all the onus for birth control on the woman and b) it’s an incredibly hard thing to prove. What evidence can be shown to demonstrate that the pregnancy resulted from a missed pill instead of simple failure? Even if a woman does miss a pill a pregnancy is in no way certain – especially if she remembers to take it the next day. And even if she misses a pill and subsequently gets pregnant I don’t believe that it can be proven that the pregnancy was a result of the missed pill and not simple failure. At the end there would be no physical evidence to support either side and depending on how the law was written it would make cases of negligence impossible to prove (by placing the burden on the man) or impossible to disprove (by placing the burden on the woman). In the first case the law would be useless and in the second it would unduly burdensome on women to prove that they used their birth control correctly.

In the case of the blowjob pregnancy I can only laugh. If it actually happened that way it was a medical miracle. As it is, it’s just a ridiculous story being told by a man who doesn’t want to pay child support. Using this case as a strawman to demonstrate that women are deceptive harpies pulling a fast one on innocent men to collect child support is insulting. If a law was passed based on Ethan’s idea of a man’s right to choose it would not be limited to cases of malicious intent, it would include everyone. And the consequences of such a law would be far reaching and damaging.

Posted by: rivki | Apr 7, 2005 5:13:00 PM

R. re innocence/guilt: That’s why strict standards need to be in place to ensure that any cases where such a rule would be applied would be only in cases of SERIOUS misconduct, either gross negligence (the woman gets the man to agree to sex upon saying she’s on the pill, but neglected to take it) or actual malicious intent (as in the plaintiff’s version of events in the blow job case). In those two hypothetical (extremely rare) cases, the man would indeed be innocent as compared to the guilty woman. And the point of my personal gloss on Ethan’s idea, at least, is to avoid punishing the child by only going after the grossly guilty mother after the child is an adult.

True “accidents” are one issue, and one that both parents should take responsibility for.

Blow jobs that lead to babies are another issue altogether. I mean, assuming the facts are as the plaintiff says they are in that case (which of course is an open question), isn’t that a horrible injustice?

Posted by: Paul Gowder | Apr 7, 2005 4:45:39 PM

“That’s why I suggested the judgment-entered-after-maturity thing: to ensure that enough resources flow in to support the child, while still minimizing the financial impact for the innocent father.”

I have a serious problem with characterizing the father here as “innocent.” He participated in the sex, in the babymaking and is therefore a full participant in the creation of the resultant child. Besides if the father is “innocent” that must make the mother “guilty,” and I think that’s rather twisted view of the sitution. A woman isn’t committing a crime by bringing a child into this world, unwanted or otherwise. And punishing a child for daring to be born against a man’s will is pretty sick.

While I am loathe to say “if you don’t want children, don’t have sex,” I think everyone needs to both understand and accept that sex (even protected sex) can result in children. Unplanned pregnancies happen, a man should not (and legally does not) have the right to say “whatever happens I’m not responsible.” Once you help create a life you are responsible for it.

“So if the fetus is given the privilege of being brought into the world by the mother only — against the express wishes of the father, who had a mutual understanding that neither party wanted to bring an unneccessary child into the world — it is hard to see why the child’s rights obviously trump the unwilling father’s.”

Ethan, the reason that the child (once born) has rights that trump his/her fathers is because said child is a minor and a dependant. In our society we recognize that minors need to be cared for and we have put in place a system by which the parents of the child are responsible for that care and support. Since the child cannot support or take care his/herself then the burden lies with the parents. Both parents. A grown man has many more rights and opportunities than a newborn – and many more responsibilities. One of those responsibilities is to care for any life that you create – willingly or otherwise. (Any extreme case in which the man did not willingly engage in the behavior which led the creation of the child is another matter but not one we’re talking about here.)

“If you follow me far enough to begin thinking that women should consider the man’s views before she makes her decision and invoking her legal trump card (WHICH I HAVE NEVER DENIED IS RIGHTFULLY HERS), I feel I’ve accomplished enough for the time being.”

I don’t think that anyone has really argued that this isn’t the case. People in relationships, even purely sexual ones, should talk before making decisions about an unplanned pregnancy, that’s just common sense. Your argument (as far as I understand it) isn’t that men should be able to express their views, but that if a man’s views are not followed then he can absolve himself of any responsibility for the life that results. How much control are we planning on giving these men, and how much are we taking away from women who go againt their husband/lovers wishes? Considering the fact that in this country men still have the majority of the power and many women are subject to control by their partners due to their economic disadvantage I am very uncomfortable with the idea that a man can be absolved of his responsibilities if his partner does something that he disagrees with.

While you seem to be concentrating on the lives of well-off, well-educated men and women who have easy access to birth control and abortion and plenty of financial support as well as a clear cut and clearly expressed desire not to have children, that is not the majority of Americans. And any law written as you propose would affect all Americans. And it would affect many of them, especially the more vulnerable groups of women and children, disproportionately. Too many women are already too afraid to leave abusive homes because their husband/lover controls the finances and she’d be destitute, and consequently unable to support her children, if she left. I can’t imagine the impact on women’s lives and well-being if their reproductive choices could be legally controlled by their partners on pain of serious financial loss. In most cases passing the law you propose would be nothing more than financial blackmail used to ensure that women’s reproductive systems are totally in the hands of their male partners.

Posted by: rivki | Apr 7, 2005 3:58:10 PM

“Who such payments come from” assumes that an individual parent has resources to support the child alone. That’s why I suggested the judgment-entered-after-maturity thing: to ensure that enough resources flow in to support the child, while still minimizing the financial impact for the innocent father.

Posted by: Paul Gowder | Apr 7, 2005 2:02:14 PM

Rights of the child or not, who such payments come from is still worth debating.

Posted by: Ethan Leib | Apr 7, 2005 1:50:20 PM

Ethan, you want a simple, practical solution? Here it is: Before having sex, the two people sign a contract, stating that they are not intending sex to result in pregnancy, listing their precautions taken, and if a pregnancy does occur and the woman choses to carry the pregnancy to term, the man will not be a parent or pay child support.

A simple solution, yes, but there are problems. The right of child support is the right of the child, as pointed out by Rivki. The second is I do not believe that women would sign this — a cavelier attitude to potential children is sure to wreck the mood.

Posted by: R | Apr 7, 2005 1:07:41 PM

This is all very useful. Careful institutional design is admittedly key; and the details all have yet to be worked out. The article was a very superficial treatment to start a conversation.

If you follow me far enough to begin thinking that women should consider the man’s views before she makes her decision and invoking her legal trump card (WHICH I HAVE NEVER DENIED IS RIGHTFULLY HERS), I feel I’ve accomplished enough for the time being. If you are suddenly feeling that the discourse of procreative choice might have some deep problems, I’m getting people to reconsider a firmanent of our joint liberal ideology that could use revisiting.

Rivki id certainly right to keep pushing the point that support rights belong to the child. But in the first few months — when the child is a fetus — it has no right to life, no right to be brought into the world. The woman, who holds the right to terminate, is the cheapest cost avoider. So if the fetus is given the privilege of being brought into the world by the mother only — against the express wishes of the father, who had a mutual understanding that neither party wanted to bring an unneccessary child into the world — it is hard to see why the child’s rights obviously trump the unwilling father’s.

I like Paul’s solution and need to think some more about it. These are all great comments!

Ariela: Love to EMT and Eden!

Posted by: Ethan Leib | Apr 7, 2005 10:27:42 AM

Ethan: interesting treatment of an issue that I think some people — including myself — have been half-thinking about for a while. I think it’s a matter of confronting the burdens. The woman has two burdens inherent in childbirth: the physical burden and the financial burden. By contrast, the man has only the financial burden. The legal system has recognized the physical burden, but has failed, thus far, to give independent legal import to the financial burden.

Riviki’s practical concerns are the most troublesome, however. How would, at bottom, the decision be made in a disputed case? Obviously, it can’t just be left to the woman because her burdens are higher, or the male right to refuse childbirth would be meaningless. Similarly, it can’t just be equal, because the woman does suffer a greater burden from childbirth, and should be given correspondingly greater rights to decide.

Perhaps a tort-style cause of action for unwanted pregnancy with a very short statute of limitations (say 6 months, with expedited procedure, so hopefully short enough to give the woman the abortion option if she loses) whereby the man must prove by clear and convincing evidence that (a) he had a reasonably certain expectation that the sexual acts undertaken would not result in pregnancy (i.e. representations of infertility, use of multiple effective forms of contraception, sperm-stealing), and (b) the woman bears significantly greater culpability for the pregnancy that occurred (i.e. she told him she was on the pill, she negligently failed to take said pill, or outright deceit like in phillips v. irons)

That might be a workable system to account for the man’s burden’s in the legal system, while still heavily weighting the right to choose. It would, however, still leave open the question of the remedy. Also as Riviki pointed out, the child support right is that of the child. If the relief for this tort was “no child support” it would be an injustice on the child, unless the mother had independent means to support the child. Perhaps a judgment for damages equal to the total child support paid, which is not enforceable until the child reaches majority??

Anyway, just some ideas on how to make this idea practical without screwing (no pun intended) men or women.

On the lighter side of things: I think Irons’ behavior will be a great way to test the norm theory of punishing misbehavior… if it works, nobody will EVER give her any nookie ever again!

Posted by: Paul Gowder | Apr 7, 2005 9:53:23 AM

“That point is this: when a couple is saddled with an unwanted pregnancy, the woman ought to listen to the man’s desires before jumping to her claim that she can do whatever she wants with her body.”

Ethan, the problem with this statement is that only one person can make that decision. While I think it is best for both partners to consult about what to do with an unexpected pregnancy, in the end a decision must be made. And in cases where the partners disagree the deciding vote has to go to the woman because it’s her body that’s at issue.

“I don’t ignore that support payments are there to help children any more than Rivki ignores that the support payments have the effect of helping the mother and incentivizing her to go through with carrying babies to term she might otherwise decide to abort, realizing that she doesn’t have resources to pay for the child’s upbringing.”

First of all, your argument here is faulty to the point of being logically equivalent to “we can’t give out condoms because if kids have access to condoms than they’ll have sex.” Bullshit. Kids will have sex whether or not they have access to condoms and some women will bear unplanned children to term whether or not they have an expectation of child support. Child care is a huge financial burden on both parents, and even with child support the majority of burdens, financial and otherwise, are carried by the custodial parent. Women don’t have children because they know that they’ll get support payments from their partners. While they may expect their partners to live up to their responsibilities, we all know that deadbeat dads are an epidemic in our society. The number of women who would mess with their birth control to get pregnant knowing that their partner was against it can only be equaled by the number of men who are willing to do the same thing to tie their woman to them. Both are immoral acts but they are not the real issue at hand. Besides, the effect of denying women child support would not be to encourage abortions, it would simply force more women and children under the poverty line. And considering that single parent homes headed by a woman have the least amount of money and make up a huge percentage of those Americans living in povery (1 in 4 children live in poverty remember) one would think that the state would recognize that writing laws that make it even tougher for children to get the support that they need is a bad idea.

I think you still need to take a look at this matter from the point of view of the child’s rights. As the rights of the dependant tend to trump the rights of the independant in this country, one would expect that a child’s right to be supported is more important than a man’s right to deny his child. This is something that needs to be addressed in your argument.

From a legal point of view you also need to address the issue of practicality and unexpected effects of the sort of law that you’re proposing. But we can’t deny that there are a class of cases where it makes sense to relieve the father. The problem here is writing a law that has a narrow enough scope to only apply to men who really, truly did everything that they could to avoid fertilization. What would your standard be for allowing a man to contract out of paternity? What sort of proof would be required? Does a statement of intent have to be made before the coitus? Do there have to be medical records or pharmacy receipts for birth control as purchased by the man? Can a man decide six months into a woman’s pregnancy that he no longer wishes to be a dad and that absolves him from his responsibilities? Where would you set your limits? And how would you prevent abuse in the form of a man not taking any precations to avoid pregnancy (or even affirmatively avoiding one – ie – not wearing a requested condom) but not wanting to be a father anyway?

In your further exploration of this topic I think you need to take into account that an unplanned pregnancy is unplanned from both sides, and that a woman isn’t taking advantage of a man just because she decides not to abort her child. Secondly you need to take into consideration of the child’s rights, although you frame this discussion as an issue between men and women the real issue is between a man and his biological child. And the vast majority of case law on this subject suggests that the child has rights and parents only have responsibilities.

Posted by: Rivki | Apr 7, 2005 8:47:09 AM

Ethan, this is a very interesting piece. I found myself wondering about the limits of the “general right to procreative choice” that you posit, which you describe as a non-gendered “right to make private decisions about how and when to procreate.” Of course, this right is not unlimited and it is mostly a negative right to be free from state interference. In practice, the “right” exists in some tension with the principle that it takes two to tango. As a woman, my “right to make private decisions about how and when to procreate” is limited by a few factors, not least my ability to find a man willing to fork over some fertile sperm at the time I want to get pregnant, as well as my physcial ability to get (and stay) pregnant with that sperm. So far, at least in the U.S., I don’t have a right to have the state help me out with that project. If I miscarry, for instance, I can’t force the sperm donor (or anyone else) to give me more sperm, and I can’t demand that the state provide treatments for other fertility problems. (In Israel, the state will pay for some infertility treatments, turning the right to procreate into a positive one with tax-funded entitlements.) It seems to me that a man’s right to procreate is similarly limited by the realities of our current reproductive system. Your right to have a baby is bounded by your ability to find a woman who, at a minimum, is willing to make sexual contact with your sperm. It’s also bounded by her ability to get pregnant. And, it seems to me, it’s further limited by her willingness to STAY pregnant. On the other hand, if you don’t want a baby, you have a lot more control over the contours of your “right” not to, because all you have to do is avoid spreading your seed around. Once you have put it out there, however, I’m not sure how strong the case is for your right to say what the recipient does with it.

Thanks for the food for thought. All very academic for me as I’m due in 2 weeks (and a bit late for EMT to change his mind now!).

Posted by: Ariela | Apr 7, 2005 2:27:10 AM

As a humorous aside, this reminds me of the scene in Legally Blonde where Elle and Warner are debating in Callahan’s class, and Elle ends it by saying, “And for that matter, all masturbatory emmissions where his sperm was clearly not seeking an egg, could be termed reckless abandoment.” (thanks to http://www.moviequotes.com/fullquote.cgi?qnum=31277)

And Dan, it’s great to see your newest endeavor – already bookmarked.

Posted by: Sam | Apr 7, 2005 1:46:55 AM

This looks more like an a concern about overpopulation, derived from Malthus, but disguised as an argument in favor of a father’s right to abort. The premise of your argument seems to be that there are not enough resources to deal with both “children that do not have proper homes” and non-aborted babies. A better argument would first address the underlying issue of the allocation of resources in society before offering a solution (hopefully more than one).

Posted by: Matt | Apr 6, 2005 11:55:01 PM

The idea of giving a man the right to contract out of his parental responsibilities, especially if he took all precautions to avoid pregnancy, is appealing to me. I have not thought of it before, but it does make sense as an extension of the right to choose. Although the goal – making sure that every child a woman brings into the world is a well-thought-out decision and one which she can financially support – is a very important one, I think that in a lot of cases this simply wouldn’t change a woman’s mind about whether to have an abortion. For many women, it is not an option, no matter what the financial burden of a child may be.

Posted by: 1L | Apr 6, 2005 9:46:44 PM

> People are too consumed with wanting and having biological children when the world is populated by too many children that do not have proper homes.

Telling people what they should and shouldn’t want is rarely a good idea, and even more rarely successful.

Posted by: Andy Freeman | Apr 6, 2005 7:56:13 PM

My gmail account (dan.markel) has been funny the last few hours. I can’t seem to send any (more?) messages than the ones I sent out earlier to most of my contacts in my address book. I wonder if Gmail thinks you’re a spammer if you send out too many emails in a day.

In any event, many thanks to Instapundit, Althouse, Volokh, and Crimprof for linking here and/or blogrolling us (Ideoblog). If there’s any I’ve missed out, please drop a line.

A few folks have already written back with appreciation that there will be a center-left voice in the group blog world. It looks like we’ll have some good visitors and permanent contributors lined up. Althouse has the most insightful interpretation of our innate nature here.

I’m hoping to figure out some more of Typepad’s quirks over the next few days too.

Thanks for the warm welcome everyone.

Posted by Administrators on April 6, 2005 at 04:48 PM

I’m thrilled to say that my friend Ethan J. Leib will be joining PrawfsBlawg. Ethan, who begins teaching con law and contracts at Hastings this coming fall, has done a bit of blogging already at dissemination.org. It’s great to have him aboard here. Welcome Ethan!

By the way, Ethan had a very interesting piece in the Legal Times the other day about what voice, if any, a man should have on the topic of abortion decisions and deliberations. There’s a link here.

Posted by Administrators on April 6, 2005 at 12:02 PM

Comments

I comes down to the fact the two people have too become responsible for the child, wanted or unwanted, The child never has any rights here, so people just do not need to have sex until they are ready to own up to this , you play….. you pay. Stop the blame game, just do not do it. Life is way too short to fight over the fact, that two people had sex, then two need to own it, you do not have to marry one another but pay up, and let this child have a life. Wow, I know this world is coming to an end way too soon….. Sad, very sad.

Posted by: RT | Mar 9, 2006 7:23:32 PM

I appreciate the responses of readers to my recent “A Man’s Right to Choose.” It isn’t a definitive statement on the subject (how could I fit that into an op-ed?), but is meant to provoke more discussion. And I’m happy to engage in this idea further.

Let me say at the outset that I am far more interested in the moral story of a couple’s deciding to abort a fetus than I am in the legal one. If the publication had allowed me to, I’d have foregrounded my real point—and leave the “legal applications” for another day. That point is this: when a couple is saddled with an unwanted pregnancy, the woman ought to listen to the man’s desires before jumping to her claim that she can do whatever she wants with her body. The legal “right to choose” has confused the moral terrain—and has blinded us, I think, to how these decisions should be made in the first instance. Although the crazy case of the (alleged) sperm-stealing I mention in the article is obviously the outlier, I do think many reasonable and educated women assume that if they want to carry a baby to term, the man will just simply have to put up with it with no recourse even though the couple took every reasonable precaution to avoid a pregnancy. I think that default rule is troublesome. And I wanted to use the occasion to think through the issue.

I don’t ignore that support payments are there to help children any more than Rivki ignores that the support payments have the effect of helping the mother and incentivizing her to go through with carrying babies to term she might otherwise decide to abort, realizing that she doesn’t have resources to pay for the child’s upbringing. Moreover, I think it is insufficient to say, as Rivki does, that men just have to live with it. I think clever institutional design can help the problem and I’m only first taking a pass at what those new institutions might look like. Why shouldn’t men be able to contract out of paternity?

I do not mean to pooh-pooh the problems with dead-beat dads. These people are usually criminals—and should be treated as such. But we can’t deny that there are a class of cases where it makes sense to relieve the father. And I think that class is somewhat broader than the sort of outrageous conduct described in the Philips case.

To be sure, the deep place inside me that is making this argument is doing so from a radically pro-abortion perspective. People are too consumed with wanting and having biological children when the world is populated by too many children that do not have proper homes. Those children should be our priorities; we should not be bringing new ones into the world without caring for them. Accordingly, more incentives to abort seem perfectly justifiable. I realize, of course, that many people do not share this view.

I’m happy to continue this conversation; I hope to write a longer and more careful piece on the issue in due course and would love feedback.

Posted by: Ethan Leib | Apr 6, 2005 5:22:38 PM

Building on what Rivki said, simply, when a man and a woman have sex, those two people are running the risk of a pregnancy (as well as STDs), unless the woman is in menopause. No birth control is 100% effective — not those used by women or by men, not tubal ligation, not vasectomies. Therefore, both parties assume the risk of a pregnancy from any sexual encounter.

So why should the choice be wholly of the pregnant woman and not of the impregnator? Because while both people assumed the risk, but only the woman is pregnant!

Let’s expand this a bit further, to a story I saw on Dateline or 20/20, or a similar show. Gay couple contracts with surrogate, she is pregnant with triplets and therefore considers selective reduction, gay couple is against abortion and would view reduction as “killing”. The pregnancy was not created through sex, but because the surrogate is the one pregnant, with the cooresponding risks, it is her choice.

This proposal would lead to many, many more abortions, (which at least some people would consider to be a problem) because it would allow men to avoid responsibility at any point. How would a woman prove that the man intended to support the child?

Posted by: R | Apr 6, 2005 4:54:30 PM

Ethan seems to ignore the fact that child support payments are made to help the child, not the mother of the unwanted child. The child is dependant upon his/her parents to live and thrive and the Courts recognize this in their determination of child support payments. A child’s needs trump any “right” of a father to deny his offspring.

While I sympathize and share the desire not to have any unwanted children, there are simply fewer points at which men can make a decision in the reproductive process. A man can chose to have a vasectomy (which is a significantly more reversible procedure than a woman’s tubal ligation) or use birth control of other sorts. Hopefully a male form of the pill will come out in the near future so that these instances of unwanted pregnancies (for men and women) can be further reduced. Until then men are just going to have to deal with the fact that if their attempts at birth control fail then they’re on the hook for any children that result. The only reason that a woman has a choice in this case is because it’s her body that’s being used to incubate the potential child. To deny her her right to abort is to basically enslave her, as well as expose her to a number of health risks that she would not have. And to force her to abort would be to utterly strip her of any rights she has over her own body.

I think Ethan also needs to think over the issue more broadly. He needs to recognize that the issue of unwanted children weigh significantly more heavily on women than on men and he needs to be sensitive to that. A pregnant woman’s number one health risk is violence at the hands of her husband/partner. Many women, regardless of whether their children were planned or born in wedlock, are not being paid the child support that they are owed. Women who do try to get child support are often threatened with expensive custody suits and settle for less money than they and their children need for fear of losing the children altogether.

A solution to the problem of unwanted children has to come from a view of preventing all unwanted children, not just discarding those already born. The best way of doing this would be to teach kids how to avoid pregnancies, which would be getting rid of the damaging “abstinence-only” sex education that is getting funded by the national government. Contraception should be cheap and widely available. More options, especially hormonal ones, should be made available to men. Pharmacists should be barred from denying women their birth control (and yes, this is both and actual and growing problem). The only solution to the problem that Ethan seeks to address is preventative. Because once that child is born it has rights, and all its parents have are responsibilities.

Also, the case of the woman who allegedly collected sperm from oral sex and purposefully impregnated herself with it is almost certainly false. Artificial insemination is difficult enough to do in sterile, hospital settings, any sperm exposed first to saliva and subsequently to air and tissue is unlikely to have survived and therefore almost certainly not capable of fertilization. Also, the woman involved says that they had vaginal intercourse and that the birth control failed – a significantly more likely story.

Posted by: rivki | Apr 6, 2005 4:19:13 PM

Hey, nice to find your site (through Volokh.) We hope to have more legal content as our site grows too, so it is good to have discovered this blog.

Posted by: Jonathan M | Apr 6, 2005 3:58:44 PM