New Scholarship from Dov Fox

Dov Fox (University of San Diego Law) has posted new scholarship on SSRN. Below are the abstracts:

Race Sorting in Family Formation:

Our laws afford enormous freedom not only to parents, but also to the intermediaries — adoption agencies, social workers, sperm banks, and egg vendors — that bring them together with (future) children. These middlemen routinely exercise this discretion to emphasize race in matching parents to the same-race gamete donors or adoptive children they tend to prefer. 

This Symposium Essay provides a conceptual framework to govern the use of race in decisions about family formation. This spectrum of salience-varying ways to manage racial information ranges from those that lay the greatest emphasis on race to those that soften or altogether exclude its expression. 

The Essay locates the operation of these different approaches in the law and practice of adoption and assisted reproduction. That race tends to reproduce itself within the family makes these unique contexts from which to ask what sort of racial self-understandings our multiracial democracy should seek to embody.

 

The State's Interest in Potential Life:

Courts have resolved a range of controversies by casual appeal to the state’s interest in “potential life” that the Supreme Court has held capable of overriding even fundamental rights. My analysis of this potential-life interest reveals its use to mean not one but four species of government concern that I call prenatal welfare, postnatal welfare, social values, and social effects. I demonstrate how these distinct state interests operate -- across a range of different contexts with varying levels of justificatory strength -- to resolve reproductive disputes in more precise and sound ways. I respond to institutional competence and social mediation challenges to disentangling potential-life interests. 

 

Religion and the Unborn under the First Amendment:

Assisted reproduction, stem cell research, and abortion are among the primary social controversies in which religion tends to play a conspicuous role. A prominent objection to government restrictions on such unborn-protective practices holds that they involve judgments about nascent human life that hew too closely to religion under constitutional principles that govern the separation of church and state. I argue that this Establishment Clause challenge trades on a misunderstanding of religion and its relationship to ideas about the unborn. It conflates four influences commonly associated with religion. The first three — compulsions of faith, promises of salvation, and obedience to God — are the ones that government may not endorse. But there is a fourth, involving broader visions about what makes society good, that legitimately animates state action. And it is this fourth influence, I will try to show, that best explains most efforts to protect fetuses and embryos. This isn't to say such laws don't have other constitutional problems; just that the First Amendment isn't one.