This essay responds to I. Glenn Cohen’s articles, Regulating Reproduction and Beyond Best Interests, by asserting that Cohen’s work fails to attain his goal of fundamentally shifting the terrain upon which discussions about exercising control over reproduction takes place. The response offers four interrelated observations about why Cohen’s work is ultimately unconvincing. First, his work is too deeply tied to the notion of procreation as substantially, and perhaps strictly, a matter of rights and autonomy, which ignores the ways in which such a narrow lens continuously fails to capture the complexities of the enterprise of creating new lives, an enterprise that necessarily involves some consideration of consequences for those who already exist and those who will exist. Second, Cohen’s work takes little account of the fact that actively choosing to have children is a moral choice and, as such, it is subject to condemnation, critique and public scrutiny. Third, if we take Cohen at his word that his piece is about shifting the conversation in the policy realm, his work substantially misses the proverbial boat because broad conversations about reproductive regulation will always be conducted with some notion of the consequences that the exercise of reproductive choice has on the lives of those children who issue as a result of such choices. Fourth, and finally, because of the reality of the prior observation, the real task for those who find BIRC untenable is not to convince others that it is unsound—philosophically or otherwise—but to convince them that their notions of best interest are flawed.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association.F The Court overturned the D.C. [...]