Thoughts on the Churn Law

Michael Halley[*]

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Introduction

A grand alliance is forming, and new trenches are being dug on the old and hallowed battleground of the Constitution.  Waving the stars and stripes of “constitutional design,”[1] and richly equipping themselves with the weaponry of reason, scholars like Richard Fallon, Sanford Levinson, and Jack Balkin have taken the field to determine “what provisions for judicial review (if any) ought to exist in constitutions for all societies whose people and legislatures are seriously committed to respecting rights,”[2] and to avoiding “constitutional crises” by “careful planning.”[3]  Fallon, a self-proclaimed “system-designer,” applauds himself for having “plowed rich ground.”[4]  Levinson and Balkin claim to be revealing a “secret”[5] that, if they are to be believed, has not only gone untold and unnoticed since the nation’s Founding, but could have avoided the near apocalypse of our Civil War.[6]

Frederick Schauer’s ambition—to breed a race of lawyers and judges equal to the ignominy of slavishly adhering to precedent—is no less breathtaking.  Asserting that “following precedents even when they seem wrong to the decision maker is . . . a large part of law,”[7] he proposes to conduct empirical experiments to determine: (1) “whether those who self-select for legal training (or are selected for legal training)” are superior, before receiving that training, “at subjugating their preferences for the right answer to a norm of precedent”; (2) “whether those who are trained in the constraints of precedent (recent graduates of law school, for example) are better at following uncomfortable (to them) precedents than those who have yet to receive such training”; and (3) “whether those who self-select for judging, or who are selected to be judges, are better at following precedent than practicing lawyers of similar experience.”[8]  Whether these scholars’ wholesale embrace of intelligent design is the means to perfect constitutional systems commensurate with the universal call for freedom, or whether it desecrates the Founders’ legacy of a constitutional frame attributable neither to “human genius” nor to “reason and reflection,” but only to “time and experience,”[9] remains to be decided; and it can only be hoped that the tenor of the debate will prove less rancorous than the all-out war currently raging between the proponents of intelligent design and those of evolution in the field of biology.

Why We Should Ignore the "Octomom"

Kimberly D. Krawiec[*]

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I.  Introduction

Few familiar with the story of Nadya Suleman­­—a single, low-income, California mother of six who recently gave birth to octuplets conceived through in vitro fertilization (IVF)—do not instinctively react with outrage.[1]  Fourteen children (or even one) are a daunting number under the best of conditions, and the conditions surrounding the Suleman births are far from ideal.  Yet, as the old saying goes, “hard facts make bad law,” and Suleman, dubbed “the Octomom” by the media, exemplifies the truth of this adage. 

Suleman’s hard facts have led not only to bad regulatory reform proposals, but also to public fury and social hysteria.  Critics have heaped both fascination and scorn on Suleman, and legislators, policymakers, and others have called for a variety of new restrictions on the use of assisted reproductive technologies (ARTs) in response to the Octomom controversy.[2] 

The most recent and thoughtful of these proposals is from Naomi Cahn and Jennifer Collins, who advocate a variety of ART-related reforms, including record-keeping requirements, limits on the number of embryos that can be transferred during any single IVF cycle, informed consent rules, and insurance coverage regulation.[3]  Not surprisingly, given the high quality and inventiveness of prior work from each of these authors, the Cahn and Collins framework for ART governance has much to recommend it. 

I take issue, however, with the Cahn and Collins embryo-transfer limit proposal and argue in this response that such a limit would produce fewer benefits and higher costs than Cahn and Collins assume.  Moreover, if the fertility industry is to be subjected to greater oversight, such oversight should stem from a balancing of what is to be gained and lost in the process, rather than through a hasty response to a sad and disturbing—but aberrant—case.

Who Decides What Number of Children is "Right"?

June Carbone[*]

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I agree with Professors Cahn and Collins that “eight is enough.”[1]  I am perhaps more skeptical than they are about assisting Nadya Suleman, a mother who already has six children, to have more.  I wonder whose funds financed fertility treatments for a single, unemployed mom on disability benefits, and, perhaps even more critically, who will fund the children’s ongoing care.  I am certainly concerned about the dubious ethical standards of the doctor who provided the reproductive care.  But I also have serious reservations about anyone choosing to impose my views—or those of others—on the country as a whole.

I therefore applaud Professors Cahn and Collins for leading with the question, “Should we regulate?” and for framing their proposals in the context of a principled distinction between regulations of the type that tend to be federally regulated in other contexts (how many embryos to implant in a single in vitro procedure, for example) and personal decisions better left to individual autonomy (such as whether a single mother ought to have more children).  I fear, however, that although the distinction they draw is principled and in many ways persuasive, it is a line unlikely to stick and unlikely to fully address the ethical framework for reproductive technologies if in fact it does take hold.

My concerns do not proceed from any reflexive libertarianism.  I do not reject government regulations per se, nor do I believe that the market, through the magic of the unseen hand, will necessarily correct misguided decisions to implant six embryos in an unemployed thirty-two-year old.  Instead, I question the framework Cahn and Collins develop for determining when and what type of regulation is appropriate.  I argue for a dynamic theory of regulation, informed by the concept of evolutionary economics, that would ask not just what kind of regulations are needed, but also how regulatory implementation is likely to affect who becomes a patient, what kinds of doctors are likely to provide the services they seek, and where and when medical treatment is likely to occur.  This analysis is dynamic—and evolutionary—not in a biological sense, but in the sense that it anticipates how change in one arena, such as the expansion of insurance coverage, might affect another area, such as the number of embryos likely to be implanted or the need to regulate issues not of concern in today’s fertility practices.  In short, I am more concerned about whether fertility clinics locate in Detroit or Windsor, whether President Obama or a Georgia governor appoints the regulators, and whether Ms. Suleman can afford in vitro fertilization at all than I am with having a government official stop the next doctor willing to implant too many embryos.