Subversive Science

This Article introduces the phenomenon of subversive science, reveals its operation in modern American society, and analyzes its implications for law and policy amidst calls to defund or repress controversial lines of inquiry. Existing debates center on whether cutting-edge science casts doubt on abstract ideals that animate our legal system, from racial equality to criminal responsibility. This focus misses the deeper and more practical danger that lies in how citizens misperceive and misapply these ideals in election and trial decisions. What makes certain science “subversive” is its power to shake the public’s faith in those democratic cornerstones. Emerging bodies of psychology research show that presenting voters with genomic studies of group differences makes them less willing to fund early education for the underprivileged. In a similar vein, brain imaging studies—that predict whether people will commit certain acts before they even intend to—can lead jurors to question free will and acquit guilty defendants. Neither scientific illiteracy nor cultural worldviews explains away these results, defying the orthodoxy that individuals conform their views on contested matters to their command of the facts or values that define their identities. Reframing the debate about subversive science means targeting the transmission of knowledge, rather than its production. I advance a range of systematic reforms to combat the alternative facts and cognitive bias through novel forms of engagement in congressional hearings, classroom lessons, and courtroom testimony

The Right to Silence as Protecting Mental Control

This Article examines the idea that individuals have a moral and constitutional right of control over the use of their thoughts vis-à-vis the state. As a point of departure, I consider the prospect of a forensic neuroimaging device that was capable of eliciting recall and recognition from a criminal suspect without the suspect’s having even to answer an interrogator’s question. Reflection on government access to this sort of interrogation technique suggests that the state should be prohibited from either extracting a person’s thoughts without her consent or making use of her compelled thoughts to lay criminal blame upon her. Though neither judges nor scholars have defended this account of the right to silence in explicit terms, the notion of “mental control” I shall develop here underlies much that is assumed about the relation between the Fifth Amendment and the values of freedom and privacy. Advances in cognitive science and neurotechnology, by promising the acquisition of incriminating information from a person’s brain in a way that avoids traditional concerns about physical or psychological harm, bring the moral and legal significance of mental control into sharp relief

Family Planning and its Limits

A doctor botches a vasectomy. Or says it’d be dangerous to keep a healthy pregnancy. Or misses a risk of passing along disease. Our laws fail to deter such reproductive negligence or compensate its victims. Some are left without the baby they desperately want. Others end up with one they’d set out to avoid — or a child with different traits than what they were led to believe. I call these harms procreation deprived, procreation imposed, and procreation confounded. Thousands of fertility patients were deprived of biological parenthood after their embryos were destroyed in a freezer meltdown. Pregnancy was imposed on hundreds of women whose birth control pills were packaged upside-down. And scores of parents had procreation confounded when the donor a sperm bank claimed was a Ph.D. genius with a spotless record had actually spent years bouncing between prison and psychiatric hospitals related to struggles with mental illness.American courts have long denied remedies for reproductive misconduct under the laws of contract, property, or torts. My book, Birth Rights and Wrong, maps out this terrain, clarifies why it matters, and sets forth principled ways to respond to those losses, while curbing collateral damage to innovation, access, or values. Robin West, Richard Epstein, David Wasserman, Reuven Brandt, and Peter Schuck engage searchingly with these ideas. West is wary of valorizing an intentional approach to reproductive life she says marginalizes people who don’t plan out their family lives, or can’t. Wasserman argues that entitling parents to select genetic traits would endanger key norms of social equality and inclusion. Brandt makes the case that my proposals don’t go far enough when it comes to anonymous donors and “lovers who lie.” Epstein contends that reproductive mishaps are a price worth paying for the extraordinary advances in medicine and technology. Schuck pulls these challenges together in his introduction to the volume. This essay replies to these concerns

Family Planning and Its Limits

A doctor botches a vasectomy. Or says it’d be dangerous to keep a healthy pregnancy. Or misses a risk of passing along disease. Our laws do little to deter such reproductive negligence or compensate its victims. Some of this misconduct leaves people without the baby they desperately want. Other times, it foists on parents a child they’d set out to avoid. Or one with meaningfully different traits than what they were led to believe. I call these three harms procreation deprived, procreation imposed, and procreation confounded. Thousands of fertility patients were deprived of biological parenthood when their embryos were destroyed in a freezer meltdown. Pregnancy was imposed on hundreds of women whose birth control pills were packaged upside-down. And scores of parents had procreation confounded when the donor a sperm bank claimed was a Ph.D. genius with a spotless record had actually spent years bouncing between prison and psychiatric hospitals amid struggles with mental illness. American courts have long denied remedies for reproductive misconduct under the laws of contract, property, or torts. Birth Rights and Wrongs maps out this terrain, explains why it matters, and sets forth principled ways to respond to those losses, while curbing collateral damage to innovation, access, or values

Disability-Selective Abortion and the Americans with Disabilities Act

This Article examines the influence of the Americans with Disabilities Act (ADA) on affective attitudes toward children with disabilities and on the incidence of disability-selective abortion. Applying regression analysis to U.S. natality data, we find that the birthrate of children with Down syndrome declined significantly in the years following the ADA’s passage. Controlling for technological, demographic, and cultural variables suggests that the ADA may have encouraged prospective parents to prevent the existence of the very class of people it was designed to protect. We explain this paradox by showing the way in which specific ADA provisions could have given rise to demeaning media depictions and social conditions that reinforced negative understandings and expectations among prospective parents about what it means to have a child with a disability. We discuss implications for antidiscrimination law and prenatal testing policy

Gender injustice in compensating injury to autonomy in English and Singaporean negligence law

The extent to which English law remedies injury to autonomy (ITA) as a stand-alone actionable damage in negligence is disputed. In this article I argue that the remedy available is not only partial and inconsistent (Keren-Paz in Med Law Rev, 2018) but also gendered and discriminatory against women. I first situate the argument within the broader feminist critique of tort law as failing to appropriately remedy gendered harms, and of law more broadly as undervaluing women’s interest in reproductive autonomy. I then show by reference to English remedies law’s first principles how imposed motherhood cases—Rees v Darlington and its predecessor McFarlane v Tayside Health Board—result in gender injustice when compared with other autonomy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A minor gender-neutral ITA is better remedied than the significant gendered harm of imposing motherhood on the claimant; men’s reproductive autonomy is protected to a greater extent than women’s; women’s reproductive autonomy is protected by an exceptional, derisory award. Worst of all, courts refuse to recognise imposed motherhood as detriment; and the deemed, mansplained, nonpecuniary joys of motherhood are used to offset pecuniary upkeep costs, forcing the claimant into a position she sought to avoid and thus further undermining her autonomy. The recent Singaporean case ACB v Thomson Medical Pte Ltd, awarding compensation for undermining the claimant’s genetic affinity in an IVF wrong-sperm-mix-up demonstrates some improvement in comparison to English law, and some shared gender injustices in the context of reproductive autonomy. ACB’s analysis is oblivious to the nature of reproductive autonomy harm as gendered; and prioritises the father’s interest in having genetic affinity with the baby over a woman’s interest in not having motherhood imposed upon her