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Scholarly Papers

Wellness As Practice, Not Product: A Collaborative Approach To Fostering A Healthier, Happier Law School Community

When a Santa Clara Law student passed away, the community was forced to grapple with mental health issues that run rampant among law students. Here Oberman et al. propose collaborative solutions for fostering a sense of community in a competition ridden space.

Motherhood, Abortion, and the Medicalization of Poverty

This article considers the impact of laws and policies that determine who experiences unplanned pregnancy, who has abortions, and how economic status shapes one's response to unplanned pregnancy. There is a well-documented correlation between abortion and poverty: poor women have more abortions than do their richer sisters. Equally well-documented is the correlation between unplanned pregnancy and poverty. Finally, the high cost of motherhood for poor women and their offspring manifests in disproportionately high lifelong rates of poverty, ill-health and mortality for offspring and mothers, alike. Read together, these factors offer a vivid illustration of the medicalization of poverty.

Abortion Bans, Doctors, and the Criminalization of Patients

January 2018, the American College of Obstetrics and Gynecology issued a position statement opposing the punishment of women for self‐induced abortion. To those unfamiliar with emerging trends in abortion in the United States and worldwide, the need for the declaration might not be apparent. Several studies suggest that self‐induced abortion is on the rise in the United States. Simultaneously, prosecutions of pregnant women for behavior thought to harm the fetus are increasing. The ACOG statement responds to both trends by urging doctors to honor the integrity and confidentiality inherent in the doctor‐patient relationship.

Seen in the context of the larger battle over legal abortion, the statement has far broader implications. By acknowledging the role doctors play in enforcing pregnancy‐related crimes, the ACOG position statement wisely anticipates the ways in which doctors will be implicated should access to legal abortion be further restricted. To understand the need for the ACOG directive, you must first understand that the story of what will happen if abortion becomes a crime in the United States is not to be found in history books; it is staring at us across our southern border.

Two Truths and a Lie: In re John Z. and Stories at the Juncture of Teen Sex and the Law

Laws governing adolescent sexuality are internally incoherent and chaotically enforced, and legal scholarship on the subject ignores the core problem of addressing and remedying adolescents’ vulnerability in sexual encounters. To posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about the nature of adolescent sexuality both from the academic literature on the subject and also from the perspective of the adults who control the criminal justice system’s response to teens’ sexual interactions. This essay illuminates the intersection between coercive adolescent sexual encounters and the criminal justice system via an in-depth study of In re John Z., a 2003 rape prosecution involving two seventeen year-olds. Using the case as a map, I explore the broader implications of the prosecution by interviewing a variety of experts and by analyzing the contemporary literature on sexual norms among youth. Against this backdrop, I relate a series of interviews conducted with the major players involved in the prosecution: the prosecutors, the defense lawyer, the trial court judge and both appellate lawyers. Examining this single case from a variety of perspectives permits a deeper understanding of how the law endeavors to regulate adolescent sexual encounters and of why it fails.

Thirteen Ways of Looking at Buck V. Bell

 This article is a review essay of Paul Lombardo's Three Generations, No Imbeciles: Eugenics, The Supreme Court And Buck v. Bell [Johns Hopkins Press, 2008]. Using Lombardo's rich and fascinating history of eugenics in the U.S. as a foundation, I propose and then explore a series of implications that stem from Buck v. Bell and are related to eugenic practices in the U.S. in the 1920s and 30s. The themes upon which Lombardo touches may be grouped into three general categories: the state role in regulating fertility; gender, race, and class issues in fertility regulation; and contemporary reproduction-related politics as they pertain to human attributes. The article is written with an eye to a semester-long study of the governmental regulation of reproduction, past, present and future. Among the themes that fall within the first of these three broad categories are issues of fiduciary duty, which grow out of Lombardo's examination of the roles of doctors and lawyers in the Buck case. I also consider the government's role in regulating population more generally, examining the eugenic implications of contemporary immigration and population policies. The themes relating to gender, race and class include the consideration of maternal-doctor-fetal conflicts, as well as historical and contemporary efforts to link fertility control to criminal punishment. Finally, the third set of themes includes a discussion of the eugenic implications of contemporary issues in reproductive technology. Lombardo's book is well researched and fascinating. It deserves a broad readership, and this review provides a mechanism for bringing this rich history to life in the classroom and beyond.

Eva and her Baby (A Story of Adolescent Sex, Pregnancy, Longing, Love, Loneliness and Death)

This article is written in the form of a creative non-fiction essay in which I tell the story of Eva, a girl who was convicted of manslaughter in connection with the death of her newborn child. I undertook this mode of story-telling after years of writing in more conventional modes about maternal filicide in general, and neonaticide in particular. (Most recently, I co-authored a book entitled When Mothers Kill: Interviews from Prison (NYU Press, 2008)). The conventions governing standard law review writing and the relatively distant observer's voice I adopted in my earlier writings left me feeling as though I had failed to communicate an important part of the factors underlying neonaticide. This essay, in which I fuse Eva's story with my own, undertakes to tell a fuller truth about the complex factors that underlie this crime. The essay is part of a series of creative endeavors (essays and articles) in which I adopt an ethnographic or quasi-ethnographic approach to considering the nexus of criminal law and women's lives.

Judging Vanessa: Norm Setting and Deviance in the Law of Motherhood

This article undertakes an ethnographic approach to the study of legal and societal norms surrounding motherhood in the U.S. It builds upon my more conventional legal and epidemiological work on maternal filicide by telling the stories, both legal and personal, of Vanessa, a woman I interviewed in the course of writing my most recent book, When Mothers Kill: Interviews from Prison. (NYU Press, 2008). In re-telling Vanessa's story, the current article exposes the limitations in the current binary classification of mothers as either good or bad. Of broader interest, I have elected to re-tell Vanessa's story by placing myself in the frame, in a style long utilized by anthropologists, yet largely ignored by legal academics. As such, the article juxtaposes Vanessa's stories with my own thoughts, feelings and stories, both as an academic and as a mother. In the end, the article offers a broader moral lens through which one might judge not only Vanessa, but also mothers in general. This article is part of a series of creative endeavors (essays and articles) in which I adopt an ethnographic or quasi-ethnographic approach to considering the nexus of criminal law and women's lives.

Mothers Who Kill: Cross­Cultural Patterns in and Perspectives on Contemporary Maternal Filicide

This article presents a brief cross-cultural review of maternal filicide, focusing specifically on the varying circumstances that surround the mothers who commit this crime. My goal is not to provide a comprehensive map of contemporary maternal filicide, but rather, to illustrate the manner in which a society’s structure of motherhood and women’s status contributes to maternal filicide. Special attention will be paid to the unwritten norms that govern women and motherhood, as well as to the manner in which distinct societies understand, rationalize, and punish maternal filicide.

Changes in Legal Education and Legal Ethics: Article: Getting Past Legal Analysis...Or How I Learned to Stop Worrying and Love Teaching Rape

 Long after the rape chapter was over, when we had moved on to inchoate crimes and cases involving "call girls" and conniving defendants who took messages for them in an era before voicemail - protagonists with whom my students, it seemed safe to wager, were unacquainted - the thoughtful young man from the third row stopped in to ask, "What was the take away from the classes on rape?" My hope is that, in explaining my approach to teaching rape, I will also address the deeper themes afoot in contemporary critiques of legal education: whether and how law schools are training students for the practice of law, and what practical use, if any, is served by scholarship among legal academics. These interviews, combined with years of teaching the edited appellate opinion in my casebook, convinced me that I could use the case to surface themes and teach skills often left out of the first-year classroom. Before class, I divided the students into small groups, assigning each group a distinct rape statute, and required them to apply their statutes to the police statements in order to advise the state's attorney about the merits of prosecuting the case. In a class on rape, the search for "bad facts" forces students to retell two stories - the victim's and the defendant's - in legally relevant ways. The state charged both boys with rape, and at first blush, the facts underlying Juan G. Either way, rape victim advocates felt certain that civil remedies could have offered Laura more than criminal law did. Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.

Cristina’s World: Lessons from El Salvador’s Ban on Abortion

This Article provides a detailed examination of abortion as it is regulated under a legal regime that criminalizes its practice under all circumstances, including when a woman’s life is at risk. Among the five nations that ban abortion under all circumstances, El Salvador is perhaps the most aggressive in its enforcement of the law. Over the past several years, I have been researching abortion-related prosecutions in El Salvador, interviewing convicted women, defense lawyers, judges, doctors, nurses and activists. This Article takes an ethnographic approach to the study of abortion law enforcement in El Salvador, investigating in detail a single abortion-related prosecution and conviction. Cristina Quintanilla’s case embodies a number of consistent challenges that arise in prosecution of abortion as a crime. The Article does not argue for or against the legal regulation of abortion. Instead, it highlights facts that complicate the enforcement of abortion-related crimes.

Your Work Will Be Your Most 'Faithful Mistress': Thoughts on Work-Life Balance Occasioned by the Loss of Professor Jane Larson

“Work-Life” balance has become part of contemporary public discourse. Whether in boardrooms, job interviews, or classrooms, we speak of this balance as a goal that is within our reach and worthy of our pursuit, collectively and individually. To date, the bulk of the discourse on work-life balance presupposes that a balance is obtainable and desirable. This essay challenges that notion. At the heart of my challenge is an alternate perspective on women’s relationship to work, inspired by a seemingly off-hand, yet rich comment made by my dear friend, the late Professor Jane Larson: "Your work will be your most faithful mistress." The essay begins by describing the shortcomings of the contemporary frameworks invoked when describing women’s struggles with work, family and accomplishment (“having it all” and “work-life balance”). Following this critique, I borrow from the work of Jerome Bruner and Arthur Frank, considering narratives that more accurately reflect the turbulence of motherhood and illustrating the manner in which a relationship to work can serve as a ballast, a solace, a faithful mistress, for those endeavoring to achieve meaningful connections in their personal and their professional lives.

Mothers and Doctors' Orders: Unmasking the Doctor's Role in Maternal-Fetal Conflicts

This article reframes the contemporary legal and ethical debates generated by pregnant women who resist medical advice. Presently known as "maternal-fetal conflicts," these dilemmas arise in contexts ranging from religious refusals of blood transfusions to cocaine addiction. The vast literature discussing these conflicts focuses entirely on the competing rights of mothers and fetuses, and overwhelmingly concludes that the mother's rights prevail. Entirely absent from this analysis is one of the primary parties to these conflicts - the doctor. As a result, the doctor's role in generating these conflicts is eclipsed, and one scarcely notices that these scenarios all are linked by the fact that each instance of "maternal-fetal conflict" represents a dramatic violation of the legal and ethical norms that govern doctor-patient relationships. 

After resituating these conflicts to accurately reflect doctors' roles, this article uses principles of fiduciary law to evaluate the legality of their actions. Finally, this article articulates a set of legal strategies designed to prevent, or at least to remedy, the harms caused when doctors attempt to impose their will upon their pregnant patients. 

By proposing an alternative paradigm for the analysis of "maternal-fetal conflicts," this article casts new light on the regulation of pregnancy and motherhood. More importantly, it offers a pragmatic resolution to the medical, ethical and legal dilemmas that, over the course of the past two decades, have increasingly perplexed judges, lawyers, and scholars.

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