Faculty Bibliography

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over age 50 be allowed access to reproductive technologies? Should the state fund abstinence education? One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result (absent state intervention) from these forms of reproduction. This focus on the Best Interests of the Resulting Child (“BIRC”) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention – the protection of the best interests of existing children – visible in areas such as adoption, child custody, and child removal. While, as I document, parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state interventions that seek to influence whether, when, and with whom individuals reproduce, in this Article I show that such justifications are problematic and misleading. Drawing on insights from bioethics and the philosophy of identity relating to Derek Parfit’s “Non-Identity Problem,” I show why this form of justification, at least stated as such, is problematic both as a normative and constitutional matter: Unless the state’s failure to intervene would foist upon the child a “life not worth living” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, I show that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level I also show that this reliance on BIRC justifications is in tension with the implicit recognition of the Non-Identity Problem by courts rejecting wrongful life torts. After demonstrating the unworkability of the BIRC argument as stated, I go on to consider three possible reformulations of the argument that would save it. The first would offer an expansive conception of the category of lives not worth living. The second would try and draw a distinction between what I call perfect and imperfect Non-Identity Problems and suggest BIRC reasoning is only problematic for the perfect cases. The third adapts a framework offered by philosophers for the wrongfulness of creating children with lives worth living that do not rely on BIRC-type reasoning by appealing to non-person-affecting principles and same-number substitutions. I explain why I find none of these approaches persuasive, including by discussing their disturbing implications as to enhancement and eugenics. I also briefly discuss how this analysis bears on the constitutionality of these interventions. Once BIRC justifications and its reformulations are shown to be problematic, it becomes apparent that either these forms of reproductive regulation are unjustified or quite different sorts of justifications must be relied on. I briefly plot three such theories, each of which depends on more controversial ideas, that the label of “best interests” obfuscates.

This paper addresses the evolution of metaphors for the Internet and shows how they have constrained and determined the development of cyberlaw. Within the law, metaphors mold the framework of discourse, determining the scope of appropriate questions about and answers to various social and legal problems. Courts and commentators employ metaphors as heuristics to generate hypotheses about the application of law to novel, unexplored domains. Metaphors structure the way lawyers conceptualize legal events, as they infiltrate, consciously and unconsciously, legal discourse. Under the classic formalist view of common law analogy as syllogism, analogical reasoning from precedent begins with the establishment of a rule behind a case or group of similar cases. Judges then apply the rule fairly mechanically to the case at hand to yield a result that is understood through the background of precedent. In contrast to figurative literary metaphors, highly structured analogical, metaphorical mappings may be used to make persuasive, logical arguments. Like all metaphors, however, legal metaphors possess a paradoxical quality, embodied in the constant tension between the legal metaphor's literal incongruence and metaphorical congruence with reality. Metaphors whose metaphorical congruence with reality is perceived as dominant, such as the "marketplace of ideas" metaphor in First Amendment jurisprudence and the "bundle of sticks" metaphor in Takings clause jurisprudence, will continue to have analogical value and will be perpetuated through judicial opinion and scholarly commentary. Conversely, legal metaphors erceived as having greater literal incongruence with reality, such as the slavery metaphor of African Americans as chattels, will lose their value and be discarded. While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others. Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable. A bad metaphor can also simply lead to bad decision making. For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce. This paper seeks to explore the evolution of metaphorical inferences as applied to the Internet within legal commentary and judicial opinions. Three metaphors in particular will be examined: the information superhighway, cyberspace, and the Internet as "real" space. Given the Internet's ongoing evolution as an unstable and ever-changing technology, courts and commentators have faced perpetual difficulty in mapping metaphors to it. Changing social constructions of the Internet as necessitated by its evolving underlying technological architecture have supported, or conversely eroded, a particular metaphor's literal congruence with reality. The purpose of this paper to make transparent the different conceptions of the Internet courts and commentators are sub silentio employing, and the various sociological, technological, and ideological conceptions of the world that support them.