Faculty Bibliography
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My role in this symposium, and my paper, are less academic than others’. I clerked for Justice Abe Fortas during the 1968–69 Term and worked with him on Brandenburg v. Ohio. I will describe the process by which Brandenburg was created, its per curiam status, and its meaning as seen from the perspective of its author. I also will address the theme of this conference, especially the claim that Brandenburg incorporated Learned Hand’s view of the First Amendment.
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The question that was put to us is whether the widespread legalization of gay marriage, supported by the Supreme Court's decision in United States v. Windsor,' means that compensated surrogacy should be more broadly legalized. This essay takes the position that Windsor has little relevance to surrogacy, which will continue to be governed by state rather than federal law. States do, and will, follow a wide spectrum of policies on surrogacy, ranging from banning it and making it illegal to promoting it by enforcing surrogacy contracts as ordinary commercial transactions. The legalization of gay marriage need not affect states' surrogacy laws.
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Federal court procedural, especially jurisdictional ones, need to be governed by clear, effective, and fair rules. Yet twentieth century doctrines and reforms, even when made in the name of pragmatism, have produced decidedly unpragmatic results: a vague and disputed doctrine of federal question jurisdiction that excludes from federal court many cases where federal law controls the outcome, rules that facilitate forum shopping by plaintiffs and make it impossible to predict in advance what law will apply to decide one's case, and the stunning waste of a system in which the exact same issues are simultaneously litigated in state and federal courts as part of a "race to judgment. " The status quo is, quite simply, broken. This Article contends that we can ameliorate these concerns by permitting removal to federal court whenever the parties are diverse and whenever the defendant's answer or plaintiff's reply shows that a case arises under federal law- rather than artificially limiting our vision to the plaintif's well-pleaded complaint. Though modest, these reforms could serve as a tonic to many of the status quo's most striking irrationalities: the criteria for federal question jurisdiction would be expanded to cover many currently excluded cases that turn on federal law, plaintiffs would lose opportunities to forum shop by pinning unwilling defendants in state courts, and the systemic waste of duplicative and concurrent state-federal litigation could be largely eliminated. By broadly addressing these deeply-rooted problems, this Article aims at improving the clarity, rationality, and essential fairness of the rules that govern our federal courts.
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Martha A. Field, Feminism and Women's Rights, Nicaragua (2002).
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Nicaragua
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Martha A. Field, Issues of Diversity (Fed. Executive Board, 2002).
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Federal Executive Board
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Martha A. Field, Judicial Reform and General Reform in the Legal System, San Carlos University, Guatemala City, Guatemala (2002).
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San Carlos University
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Martha A. Field, What Effects Should Follow from Science's Ability to Allow Selection of Traits in Children-To-Be, Conference on Disability and Genes (2002).
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Conference on Disability and Genes
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Martha A. Field, Women Lawyers in the United States, Nicaragua (2002).
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Nicaragua
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The countries of Central America, afflicted for many years by civil strife and economic stagnation, are entering a new era of peace, democracy, and economic development. Now, more than ever, it is necessary for reforms in the legal system to successfully support these changes. This volume examines two fields of law in which reforms are especially crucial: the improvement of the judicial systems and other mechanisms for resolving noncriminal disputes, and modernization of the laws governing both tangible and "intellectual" property. Among the specific topics addressed in the volume are the debate over "oralidad;" the problem of interlocutory appeals; nonjudicial procedures for resolving disputes (negotiation, mediation, conciliation, and arbitration); land and trademark registration systems; land reform in Nicaragua; the management of genetic resources; online legal databases; and legal education.
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Engaging in sex, becoming parents, raising children: these are among the most personal decisions we make, and for people with mental retardation, these decisions are consistently challenged, regulated, and outlawed. This book is a comprehensive study of the American legal doctrines and social policies, past and present, that have governed procreation and parenting by persons with mental retardation. It argues persuasively that people with retardation should have legal authority to make their own decisions. Despite the progress of the normalization movement, which has moved so many people with mental retardation into the mainstream since the 1960s, negative myths about reproduction and child rearing among this population persist. Martha Field and Valerie Sanchez trace these prejudices to the eugenics movement of the late nineteenth and early twentieth centuries. They show how misperceptions have led to inconsistent and discriminatory outcomes when third parties seek to make birth control or parenting decisions for people with mental retardation. They also explore the effect of these decisions on those they purport to protect. Detailed, thorough, and just, their book is a sustained argument for reform of the legal practices and social policies it describes.
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Martha A. Field, The Meaning of Federalism, 23 Ohio N.U. L. Rev. 1365 (1997).
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I wanted to talk about "The Meaning of Federalism" because often, in discussions of federalism, people seem to be talking about very different things, and with very different assumptions. Federalism-even "Our Federalism" as the Supreme Court sometimes calls the type of federalism that has developed in this country-is used with different and sometimes even opposite meanings. The Federalists of our history originally were supporters of strong central government and surely the phrase can still carry that meaning. But many today, including sometimes the Supreme Court (Younger v. Harris) use the federalism slogan to support not greater national power but to support greater states' rights. Today, I will suggest that neither of these definitions of federalism is required by our constitutional system. As a matter of dictionary definition, federalism is not inherently either pro-centrist or pro-local; a society can be federalist and have either characteristic. The Supreme Court essentially held in Garcia v. San Antonio Metropolitan Transit Authority that either slant, within very broad limits, is consistent with our Constitution, and that Congress, not the Supreme Court, is the primary arbiter of the appropriate balance to maintain between state and federal powers. The point for now, however, is not which of these various views of federalism is the correct one as much as to show that there is this confusion as to whether "federalism" carries an inherent pro-centrist bias, an inherent pro-state bias, or neither. In this way and others, the term is used with very different meanings and different agendas.
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Martha A. Field, The Seminole Case, Federalism, and the Indian Commerce Clause, 29 Ariz. St. L.J. 3 (1997).
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My aim is to convey the import of the Seminole decision from the point of view of a lawyer and scholar of federalism. This means that the things I know the most about-specifically, the Tenth and Eleventh Amendments to the U.S. Constitution-are probably the subjects about which my audience has the least interest, and quite properly perhaps. That is, these Amendments, in and of themselves, have nothing especially to do with Native Americans, or at least have not until very recently. At the end of my discussion, I venture some comments on Seminole's potential impact on Native Americans and their interests. Just to relieve the suspense, however, I will disclose my tentative conclusion: that there is not much impact at all. Seminole is probably not of major significance in regard to federal Indian-state relations. It is designed to be, and is, a major decision about the meaning of the Eleventh Amendment and about federal-state relations, judicial and congressional. The decision does, obviously, affect the IGRA. But the scheme that replaces the one held unconstitutional in Seminole could prove more advantageous to Native Americans rather than less.
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Martha A. Field, Killing the Handicapped, 16 Harv. Women's L.J. 79 (1993).
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A practice known since biblical times, surrogate motherhood has only recently leaped to prominence as a way of providing babies for childless couples—and leaped to notoriety through the dramatic case of Baby M. Contract surrogacy is officially little more than ten years old, but by 1986 five hundred babies had been born to mothers who gave them up to sperm donor fathers for a fee, and the practice is growing rapidly. Martha Field examines the myriad legal complexities that today enmesh surrogate motherhood, and also looks beyond existing legal rules to ask what society wants from surrogacy. A man’s desire to be a “biological” parent even when his wife is infertile—the father’s wife usually adopts the child—has led to this new kind of family, and modern technology could further extend surrogacy’s appeal by making gestational surrogates available to couples who provide both egg and sperm. But is surrogacy a form of babyselling? Is the practice a private matter covered by contract law, or does adoption law govern? Is it good or bad social and public policy to leave surrogacy unregulated? Should the law allow, encourage, discourage, or prohibit surrogate motherhood? Ultimately the answers will depend on what the American public wants. In the difficult process of sorting out such vexing questions, Martha Field has written a landmark book. Showing that the problem is rather too much applicable law than too little, she discusses contract law and constitutional law, custody and adoption law, and the rights of biological fathers as well as the laws governing sperm donation. Competing values are involved all along the legal and social spectrum. Field suggests that a federal prohibition would be most effective if banning surrogacy is the aim, but federal prohibition might not be chosen for a variety of reasons: a preference for regulating surrogacy instead of driving it underground; a preference for allowing regulation and variation by state; or a respect for the interests of people who want to enter surrogacy arrangements. Since the law can support a wide variety of positions, Field offers one that seems best to reconcile the competing values at stake. Whether or not paid surrogacy is made illegal, she suggests that a surrogate mother retain the option of abiding by or canceling the contract up to the time she freely gives the child to the adopting couple. And if she cancels the contract, she should be entitled to custody without having to prove in court that she would be a better parent than the father.
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In response to the public outcry for mandatory testing for AIDS, this Article explores the major issues concerning the identification of persons with AIDS in society. The Article first studies testing procedures and the purposes behind them to determine if a call for mandatory testing of the general populace would better achieve society's objectives for identifying individuals with AIDS. Concluding that testing should not be required of the population as a whole, the Article then explores whether testing should be required of certain subpopulations which society perceives as likely to have or to spread the disease. In this context, too, the Article concludes that mandatory testing would be unwarranted, and that funds proposed for mandatory testing would be put to better use in education and universal precautions to prevent the further spread of AIDS.
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Judges must often decide what law governs issues in their cases - state law or federal common law. Scholars have traditionally divided this inquiry into two stages, asking first whether the judge has power to apply any law other than state law, and then, if such power exists, whether the judge should apply state law anyway. In this Article, Professor Field challenges this two-prong inquiry and the conception of "state law" that it implies. She argues that the power to create federal common law is (and should be) much broader than is generally assumed, and that despite Erie Railroad v. Tompkins, state law very rarely "operates of its own force." Professor Field concludes that even though there is broad power to create federal common law, judges have exercised their discretion in a way that allows state law and federal common law to operate in a complementary fashion.
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Twice the Supreme Court has reversed itself on the question of whether state sovereignty restricts Congress in exercising its powers under the commerce clause, and the dissenters in the latest round have promised to overturn the Court again. 1 Given the closeness of the votes and the prospect of new appointments to the Court, the ultimate outcome remains uncertain. But it is increasingly clear that the effort of four members of the current Court to make state sovereignty a major constraint on Congress's use of its delegated powers should now be abandoned for good.
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This article is the second of a series collectively entitled The Eleventh Amendment and Other Sovereign Immunity Doctrines. The first article surveyed the historical context in which the eleventh amendment was adopted, and took the position that the Constitution does not impose the sovereign immunity doctrine; sovereign immunity is a common law doctrine, and is not constitutionally compelled. The present article addresses congressional power to override state immunity. It first sets out the case law on the subject and then discusses alternate theories supporting congressional power to impose suit upon the states. It also treats the interpretive functions of the federal courts in the sovereign immunity area. The final article will discuss questions respecting the kinds of relief that are available from state defendants.
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On September 28, 1971, Congress extended the draft for two years 1 and made a number of changes in the Military Selective Service Act of 1967.2 Although provisions relating specifically to conscientious objectors were largely unaltered,3 procedural rights granted all registrants will have an effect on the problems of proof and factfinding that have long vexed the determination of conscientious objector claims. The most important of these procedural reforms is a requirement that “[i]n the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.” This Article will examine the statutory and procedural framework within which a claim of conscientious objection must be asserted and will consider various obstacles to reliable factfinding. It will then focus on the newly-adopted requirement that draft boards reveal their bases of decision and will evaluate the impact of that requirement on the operation of the system. Finally, it will suggest a new approach to dealing with conscientious objector claims.