While the article discusses the legal principles that would apply to artificial wombs, it is skeptical about the technological possibility of artificial wombs in the foreseeable future. Accordingly, the focus of the article is the effect that the fantasy of artificial gestation has on the legal discourse around pregnancy and reproduction today.

The article first places the fantasy of artificial gestation in the context of theories of reproduction propounded by western science. The history of scientific theorizing about reproduction is a history of male scientists’ efforts to prioritize the male contribution and minimize the degree to which men are dependent on women for the creation of their offspring. Feminist scientists and philosophers of science have demonstrated how sex-based ideology has skewed and hampered scientific efforts to understand the biology of reproduction. Scientific pronouncements about the prospects for building artificial wombs reflect the biases that have historically plagued reproductive science, making it likely that those prospects are systematically overstated.

The article then turns to how legal discourse uses the prospect of artificial gestation to shape current practices regarding reproduction and control of women’s bodies. For example, legal scholars increasingly cite the prospect of artificial wombs as a solution to the controversy over abortion, since the fetus could survive without requiring the pregnant woman to sustain it. Pregnant women seeking abortions could instead be required to choose between continuing the pregnancy or undergoing an extraction procedure in which the embryo or fetus would be transferred to an artificial womb. This predicted “solution” informs legal analysis of the scope of reproductive rights today by constructing the woman and fetus as separate individuals with opposing interests. Similarly, comparisons between mechanical and human gestators shape legal rhetoric about commercial surrogacy and the legal control of pregnant women.

Finally, the article reconsiders this legal-technological discourse about gestation from the perspective of a feminist project of re-visioning the human condition as one of mutually dependent relationships rather than autonomous individuality. Feminists have demonstrated that the autonomous individual is a myth; the fantasy of artificial wombs is a psychic representation of that myth. It constructs motherhood in a way that minimizes the importance of the human connection of pregnancy. A child born through natural gestation or through individual-initiated artificial gestation enters the world with a claim to that connection; for the state to create a child through artificial gestation would be to create an intentional orphan, the family-level equivalent of a stateless person. Therefore, although this Article tentatively concludes that artificial gestation should be permissible as a means for individuals to reproduce, it rejects state-mandated gestation as a moral alternative to abortion. Every child may not be entitled to a human gestator, but every child is entitled to a human parent, in the fullest sense of the word.

This Article adds a new level of critique to the chorus of criticism that has already been directed at these decisions. It argues that the new enterprise and its rejection of the substance/procedure dichotomy are ultra vires and based on a misguided aspiration to accommodate state substantive policies at the expense of federal procedure.

Descriptively, in order to have a dichotomy, it is necessary to have two poles. I therefore demonstrate that the distinction between substance and procedure is appropriately represented by a single-dimensional spectrum. Part of what the Court has done wrong is to ignore this linear relationships by insisting, for example, in Semtek, that res judicata is “too substantive” to be addressed in the Federal Rules yet procedural enough to be governed by federal common law under the Rules of Decision Act. In addition, given the linearity of substance and procedure, one could imagine the distinction either as a dichotomy of black and white, with every legal rule falling into one category or the other, or as a spectrum of gray, with many or even most legal rules falling in the mushy middle. Descriptively, of course, the latter view is more accurate. My claim, however, is that the Court should nevertheless classify each one as black or white, rather than attempt to accommodate both its procedural and its substantive aspects.

This Article offers two reasons for preferring the black—white approach. First, the governing statutes contemplate a dichotomy between substance and procedure, and the Court is not authorized to use the ambiguity in that distinction to replace the statutory scheme with its own discretionary treatment of state law. Second, ending Phase Three and returning to the black-white approach would promote democratic transparency in the states. Specifically, in addition to traditional Erie concerns about judicial lawmaking, Congress has set a policy of establishing a uniform body of trans-substantive procedural law. State legislators know this, and there is nothing wrong with federal courts expecting them to act accordingly. If they, as Representative Dingell famously offered, prefer to manipulate procedure in order to undermine the substantive rights they purport to have created, the threat of fixed procedures in diversity could and should restrain them. Too often, the Supreme Court treats legislative enactments as fixed, so that the game begins when the litigants start their forum shopping. The game begins earlier, in the legislature, and the Court’s ad hoc, accommodating approach to state law in Erie’s third phase creates the wrong incentives for that game.

This Article adds a new level of critique to the chorus of criticism that has already been directed at these decisions. It argues that the new enterprise and its rejection of the substance/procedure dichotomy are ultra vires and based on a misguided aspiration to accommodate state substantive policies at the expense of federal procedure.

Descriptively, in order to have a dichotomy, it is necessary to have two poles. I therefore demonstrate that the distinction between substance and procedure is appropriately represented by a single-dimensional spectrum. Part of what the Court has done wrong is to ignore this linear relationships by insisting, for example, in Semtek, that res judicata is “too substantive” to be addressed in the Federal Rules yet procedural enough to be governed by federal common law under the Rules of Decision Act. In addition, given the linearity of substance and procedure, one could imagine the distinction either as a dichotomy of black and white, with every legal rule falling into one category or the other, or as a spectrum of gray, with many or even most legal rules falling in the mushy middle. Descriptively, of course, the latter view is more accurate. My claim, however, is that the Court should nevertheless classify each one as black or white, rather than attempt to accommodate both its procedural and its substantive aspects.

This Article offers two reasons for preferring the black—white approach. First, the governing statutes contemplate a dichotomy between substance and procedure, and the Court is not authorized to use the ambiguity in that distinction to replace the statutory scheme with its own discretionary treatment of state law. Second, ending Phase Three and returning to the black-white approach would promote democratic transparency in the states. Specifically, in addition to traditional Erie concerns about judicial lawmaking, Congress has set a policy of establishing a uniform body of trans-substantive procedural law. State legislators know this, and there is nothing wrong with federal courts expecting them to act accordingly. If they, as Representative Dingell famously offered, prefer to manipulate procedure in order to undermine the substantive rights they purport to have created, the threat of fixed procedures in diversity could and should restrain them. Too often, the Supreme Court treats legislative enactments as fixed, so that the game begins when the litigants start their forum shopping. The game begins earlier, in the legislature, and the Court’s ad hoc, accommodating approach to state law in Erie’s third phase creates the wrong incentives for that game.

This Article first describes the ways in which teaching sex stereotypes may affect children, highlighting the need for further empirical research in this area. Second, it critiques the extant feminist legal response to gender-biased Sex Ed curricula, particularly the use of precedent dealing with governmental perpetuation of stereotypes; those precedents cannot be incorporated wholesale into this context. Finally, to correct this analytical gap, this Article connects the Sex Ed issue to the existing scholarly literature on indoctrination of schoolchildren, a literature that has hooks in both equal protection and the first amendment. The first amendment principles developed in this literature provide the missing link to explain the constitutional flaw in sex stereotyping at school. The result is an endorsement standard, based on a blending of equal protection and first amendment doctrine. Public school students should not be inculcated in values whose entrenchment by government is contrary to constitutional principles.

The Court's 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.

I begin with the “unwed father cases” from the 1970s. Despite believing that natural sex differences justified distinctions in parental rights, the Court crafted a test giving men parental rights if they established relationships with their biological children. I argue that this test was modeled on what the Court saw as the essential attributes of motherhood. I offer this reading as an alternative to the standard feminist critique that the unwed father cases are notable only for their zeal to enforce the traditional family. I also show how the theoretical approach of these cases supports feminist claims for equal treatment despite biological difference (such as accommodation of pregnancy).

Turning to current debates, my focus is 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. I show that conferring parental rights on gestational mothers would produce better outcomes and be more consistent with the best aspects of existing constitutional precedents.

This division between the body and the social suggests that women’s liberty can be protected only by breaking it into pieces that have analogs in men’s experiences. When men are the norm, women’s experiences and rights become derivative and can be protected only to the extent that they’re similar to men’s. Women’s rights would stand more firmly on their own footing. The Article proposes a different framework for theorizing pregnancy. While this understanding of pregnancy could form the basis for yet more comparative equality arguments, abortion is better understood through a liberty framework developed directly from women’s experiences.