Preemption of Common Law Claims and the Prospect for FIFRA: Justice Stevens Puts the Genie Back in the Bottle

In the upcoming Term, the Supreme Court will consider a case raising the question whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts state tort law, or only state positive law. FIFRA, under which the Environmental Protection Agency regulates pesticide labels, has an express preemption clause and clearly preempts state positive law on labeling. The question presented is whether and to what extent it also preempts state tort law, particularly claims for failure to warn. The Court\u27s precedent on preemption of state tort law is erratic, but for some reason, the pro-preemption view has been much more popular with lower courts. The view that FIFRA broadly preempted state tort law was unanimous for several years, until the EPA filed an amicus brief in a California case arguing against preemption. That brief was rejected in most courts but accepted in Montana and Oregon. Under President Bush, however, the EPA reversed its preemption and now argues in favor of preemption - which in practice means near-complete immunity for pesticide manufacturers against claims by consumers or bystanders. This paper argues that the Supreme Court should hold that even though FIFRA preempts states from passing laws about what should be on a pesticide label, FIFRA does not preempt tort claims for failure to warn about the dangers of the pesticide. In doing so, the Court should clarify the operation of various presumptions it is adopted for when to find state law preempted by a federal statute

Essentially a Mother

This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, this article argues that a gestational mother has a constitutional claim to be recognized as a legal parent. The article first discusses the unwed father cases. Despite believing that natural sex differences justified distinctions in parental rights, the Supreme Court crafted a test giving men parental rights if they established relationships with their biological children. The article argues that the Court modeled this test on its view of the essential attributes of motherhood. The article also shows how this theoretical approach supports feminist claims for equal treatment despite biological difference, such as accommodation of pregnancy. Turning to current debates, the article focuses on divided motherhood: usually surrogacy contracts, but also embryo mix-ups at fertility clinics. Rather than following existing precedent on parental rights, the law of high-tech parenthood is tending sharply in the direction of denigrating gestation, defining parenthood exclusively in terms of genes or contracts. Conferring parental rights on gestational mothers would produce better outcomes and be more consistent with the best aspects of existing constitutional precedents

Fathers and Feminism: The Case Against Genetic Entitlement

This Article makes the case against a nascent consensus among feminist and other progressive scholars about men\u27s parental rights. Most progressive proposals to reform parentage law focus on making it easier for men to assert parental rights, especially when they are not married to the mother of the child. These proposals may seek, for example, to require the state to make more extensive efforts to locate biological fathers, to require pregnant women to notify men of their impending paternity, or to require new mothers to give biological fathers access to infants. These proposals disregard the mother\u27s existing parental rights and transfer too much power from women to men. Although they directly affect only a particular class of legal disputes about genetic fathers and adoption, their implications stretch not only to other kinds of custody disputes but also to the law\u27s treatment of sex and gender differences in reproduction more broadly The principle of genetic entitlement that underlies these proposals is male-centered and therefore an undesirable basis for the law of reproduction and parentage

Body and Soul: Equality, Pregnancy, and the Unitary Right to Abortion

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the health exception to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition\u27s conception of liberty is based on male experience, no theory of basic human rights grounded in women\u27s reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women\u27s reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the social aspect of pregnancy, to the detriment of the other. Some scholars have suggested that the right to abortion be split in two, with one right to bodily integrity and a separate right to avoid motherhood. This is the wrong way to theorize pregnancy: body-focused arguments fail to resonate with the reasons most women seek abortions and the role that pregnancy and abortion play in women\u27s lives. Burdens-of-motherhood arguments imply a sunset clause on abortion rights and lend credibility to arguments for a right to male abortion. This division between the body and the social suggests that women\u27s liberty can be protected only by breaking it into pieces that have analogs in men\u27s experiences. When men are the norm, women\u27s rights become derivative. The Article proposes a relationship model for theorizing pregnancy as a starting point for developing a liberty framework directly from women\u27s experiences. This model of pregnancy builds on Supreme Court precedent that uses pregnancy as a baseline for a constitutional definition of parenthood. It thus provides a basis for treating abortion as one of a range of reproductive rights rather than in isolation. It also offers the promise of a woman-centered vision that would put those rights on firmer footing

Arguing with the Building Inspector About Gender-Neutral Bathrooms

Conventional interpretations of building codes are among the greatest barriers to building the gender-neutral bathrooms of the future. Focusing on the example of schools, this Essay argues for a reinterpretation of the International Building Code in light of its policy goals: safe, private, and equitable access to public bathrooms. Under this reinterpretation, the Code allows all public bathrooms to be gender-neutral