In Vitro Fertilization and the Law: How Legal and Regulatory Neglect Compromised a Medical Breakthrough

The rise of assisted reproductive technology like in vitro fertilization (“IVF”) as a method of human reproduction represents a remarkable medical achievement. Live births and success rates have increased dramatically in the past decade, so much so that many fertility clinics now “guarantee” a baby to clients who sign up. But with successes come inevitable downsides. Everyone knows that the price tag is steep, but given the demand, relatively few individuals are deterred. More insidious are the increased birth-defect risks associated with reproductive technologies. For some time it was assumed that these risks were due to the fact that individuals attempting IVF were older and possessed greater risk factors themselves. Now, however, recent research is showing that it may be IVF itself, and, in particular, the dramatic rise of a new technique called intracytoplasmic sperm injection (“ICSI”), that is responsible for negative outcomes. IVF providers face little incentive to impress these risks on their customers, and operate in a largely unregulated environment in which cash is king and informed consent is optional. The incentive to report high live-birth rates dictated by the profit motive pushes some clinics to implant more embryos than necessary and to recommend technologies that may increase births despite the fact that they increase defect rates.

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The Psychodynamics of Sexual Choice

The right of sexual autonomy now occupies a central place in the scheme of constitutional liberties. Consensual sexual relations, including fornication, adultery, and sodomy, are understood to lie beyond the reach of law’s regulatory power. Yet as described in this Article, some sexual encounters by their very nature are likely to engage unconscious psychological processes that involve troubling levels of vulnerability and coercion. Drawing on psychoanalysis, this Article proceeds by examining three relationships that raise heightened concerns about unconscious impairments in sexual choice. Part I investigates the way in which adult incest may trigger unconscious feelings of submission on the part of the adult child, thus potentially (although not necessarily) justifying legal intervention. Part II examines therapist–patient sexual relations, where transference feelings can raise similar concerns about unconscious impairments in choice and the possibility (although, again, not the inevitability) of legal intervention. Part III addresses the ideal of sexual autonomy as it applies to sadomasochistic relationships, and concludes that these relationships may surprisingly provide a template for the role of conscious reasoned thinking in facilitating sexual desire. Each of these three relationships shows us a different perspective on the right of sexual autonomy and the uneasy balance between choice and desire that underlies every sexual encounter. Exploring the unconscious dynamics in the relationships studied here—adult incest, therapist–patient sex, and sadomasochistic sex—leads us to a deeper understanding of the right of sexual autonomy, and its limits.

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Curing the Tribal Disenrollment Epidemic: In Search of a Remedy

This Article provides a comprehensive analysis of tribal membership, and the divestment thereof—commonly known as “disenrollment.” Chiefly caused by the proliferation of Indian gaming revenue distributions to tribal members over the last 25 years, the rate of tribal disenrollment has spiked to epidemic proportions. There is not an adequate remedy to stem the crisis or redress related Indian civil rights violations. This Article attempts to fill that gap. In Part I, we detail the origins of tribal membership, concluding that the present practice of disenrollment is, for the most part, a relic of the federal government’s Indian assimilation and termination policies of the late nineteenth and early twentieth centuries. In Part II, we use empirical disenrollment case studies over the last 100 years to show those federal policies at work during that span, and thus how disenrollment operates in ways that are antithetical to tribal sovereignty and self-determination. Those case studies highlight the close correlation between federally prescribed distributions of tribal governmental assets and monies to tribal members on a per-capita basis, and tribal governmental mass disenrollment of tribal members. In Part III, we set forth various proposed solutions to curing the tribal disenrollment epidemic, in hope of spurring discussion and policymaking about potential remedies at the various levels of federal and tribal government. Our goal is to find a cure, before it is too late.

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Courts and the Future of “Athletic Labor” in College Sports

Recently, “labor” has entered the lexicon of NCAA litigation involving antitrust and union organizing. Athletic labor, a term coined by a federal appeals court, signals a favorable turn for students—as illustrated by a recent antitrust decision holding that student athletes are participants in a labor market. In addition, a National Labor Relation’s Board regional director’s ruling in Northwestern University has accelerated the NCAA’s efforts to compensate students. This study is based on 82 state and federal court rulings from 1973 to 2014—and predicts how courts will apply labor law to student complaints against the NCAA. My research shows that students won in 50% of first-round court rulings, but the NCAA won in 71% of second-round cases, and won another 71% of third-round appeals. I conclude that the facts in these cases favor classifying college football players as employees, but the law supports the NCAA’s amateur-athlete model. Thus, while schools profit from the sweat of football players, a federal appeals court is unlikely to alter the NCAA’s amateurism model. But, based on empirical findings in this study, the occasional first-round student victory means that the NCAA will be pressured to adopt a radically new model of amateurism that mimics the employment relationship.

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The Real School Safety Debate: Why Legislative Responses Should Focus on Schools and Not on Guns

Recent tragedies in our nation’s schools—such as the Sandy Hook shooting in Newton, Connecticut and the Marysville-Pilchuck shooting near Seattle, Washington—have brought the school safety debate to the forefront of American politics. Issues of serious school violence receive intense media scrutiny. As a result, the school safety debate tends to incite emotional responses from legislatures, school districts, and parents alike. However, given that school safety concerns more than just mass shootings, emotionally charged legislation focused upon firearms is not the answer. Rather, school safety legislation needs to be school-centered.

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Aggregating is Aggravating: Unitary Offenses and Their Effects on Defendant Rights

This Note examines how unitary offenses affect defendants’ rights in the state of Arizona. In Arizona, first-degree murder, along with several other felony crimes, has been designated a unitary offense—a single offense that can be committed in multiple ways (e.g., premeditation or felony murder). For unitary offenses, a jury must unanimously agree that the offense happened, but it does not have to agree on the exact way in which it happened. This conflicts with a defendant’s right to a unanimous jury verdict and proof beyond a reasonable doubt. Unitary offenses also present issues pertaining to a defendant’s right to notice of the charges against him. If a defendant is charged with a nonunitary offense and the statute has multiple subsections, the particular subsection that the defendant is being charged under must be listed in the indictment; otherwise, the defendant was not provided sufficient notice. However, unitary offenses do not require the same specificity, calling into question whether a defendant can adequately prepare a defense to the charges brought against him. To examine how unitary offenses affect defendants’ rights, this Note analyzes specific Arizona case law, other state and federal case law, and U.S. Supreme Court decisions addressing the issue. In an attempt to preserve the wise and fair administration of justice, this Note also proposes its own theories for addressing some of the negative implications of unitary offenses.

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Information and Control: Making Secrets and Keeping them Safe

The amount of classified information has increased to an astonishing point in recent years—having more than tripled during the Obama Administration alone. Concerns about overclassification are not new, but they are especially troubling given the amount of information now being classified and the number of persons being prosecuted for leaking classified information. As it stands, the executive branch retains power to determine what information should be classified and who should be prosecuted for leaking classified information. In essence, the Executive holds both pen and sword and it may wield both in its full discretion. This Note addresses: how the current classification system came about and how it currently stands; the tools available to prosecute leaks; and possible solutions to the problems of overclassification and overprosecution.

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Manufacturing Consumer Protection for 3-D Printed Products

Additive manufacturing, also known as “3-D printing,” is an exciting technology with the potential to revolutionize a host of industries and transform the ways in which products reach consumers. Products printed using this 3-D technology raise a number of legal and policy issues, particularly in the realm of products liability law. Despite that, this Note argues that slow-moving legislation will likely be the least effective means to address this rapidly changing industry. The reasons for rejecting a legislative approach to the 3-D printing industry are three-fold: (1) government regulation goes against the open-source spirit of the 3-D printing industry; (2) the industry is equipped to develop innovative solutions for many of its own legal and regulatory problems; and (3) when legal issues do arise that require litigation, courts are better equipped to resolve those issues on a case-by-case basis. When regulation is necessary, administrative rulemaking should be preferred over comprehensive legislation because the rulemaking process requires extensive industry involvement through the notice and comment process, and agencies are more quickly able to amend and issue new rules to address changing technology.

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President Obama’s DAPA Executive Action: Ephemeral or Enduring?

On November 20, 2014, President Obama announced his executive order on immigration, Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). Controversy immediately ensued. Never before has an executive action deferred deportation of up to five million people, nor has one received such public outrage. Since its announcement, there have been two primary judicial challenges to the executive action: United States v. Juarez-Escobar and Texas v. United States. The latter case investigates whether DAPA’s broad executive discretion is consistent with the congressional intent of various immigration statutes. While the district court in Texas v. United States granted a preliminary injunction on Administrative Procedure Act grounds, the court has not yet addressed whether DAPA violates the Constitution. The weight of the court’s forthcoming decision is undeniable. Given the widespread reach of DAPA and the public controversy surrounding it, the executive action warrants a detailed exploration of its substance and its precarious future.

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The Model Entity Transaction Act: A Step Toward Improving Arizona’s Business Environment

In 2014, the Arizona State Legislature passed the Arizona Entity Restructuring Act (“AERA”), overhauling Arizona’s entity-level transaction statutes. AERA organizes, simplifies, and expands Arizona’s entity-level transaction procedures. This Note will cover AERA’s development, its broadly inclusive definition of “entity,” the five specific transactions it permits, and why AERA is the first step toward a more business-friendly Arizona.

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