How Litigation Imports Foreign Regulation

Foreign regulators exert a powerful and deeply underestimated influence on American complex litigation. From the French Ministry of Health and the United Kingdom’s National Health Services, to the Japanese Fair Trade Commission and the European Commission, foreign agencies have participated in some of the most important cases in the last two decades. The intersections between American litigation and foreign regulation range from plaintiff discovery requests of documents produced by or to foreign regulators, to coattail class actions against multinationals triggered by enforcement penalties abroad, all the way to foreign agency letters submitted to U.S. courts expressing an interest in a case. Indeed, dozens upon dozens of the most important multidistrict cases in the country—covering over 100,000 claims—have been influenced by foreign regulatory documents or enforcement actions. In this manner, litigation is importing foreign regulatory zeal to the United States. Yet few American legal actors know that foreign regulation affects domestic cases and even judges are unsure whether this practice is appropriate.

This Article presents a systematic study of the new relationship between foreign regulation and American litigation. The cross-border spread of litigation ideas sits at the center of broader debates about complex litigation, the regulatory role of multidistrict litigation, the recent trend of litigation isolationism, and the expanding role of discovery. The Article argues that litigation can import and domesticate foreign regulations, allowing private litigants to audit the work of captured domestic agencies. For instance, litigators can measure the work of the FDA against health regulators in France, or the work of the FTC against regulators in Germany. Litigation can also push U.S. law to match foreign regulation, promoting a rough harmonization across borders, coherence, and convergence. While the litigation-led use of foreign regulation promises a wealth of benefits for U.S. law, it has not been sufficiently recognized, nudged forward, or appreciated. The Article thus seeks to provide a solid theoretical footing for the incorporation of foreign regulations and argues that an understanding of litigation-led globalization clarifies scholarly debates in a variety of literatures. After this analysis, the Article also argues that courts should invite American regulators to help them decide whether to welcome or reject this foreign influence.

Introduction

In 2015, hundreds of pregnant mothers sued the pharmaceutical giant GlaxoSmithKline (“GSK”) in courts throughout the United States, alleging that the drug Zofran caused severe birth defects.1.In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 98 (D. Mass. 2019).Show More After the cases were consolidated into a massive multidistrict litigation, GSK argued there was no evidence that the drug caused birth defects and that even the Food and Drug Administration (“FDA”) had repeatedly rejected that link.2.Id.Show More Lacking sufficient evidence and facing the prospect of an adverse summary judgment, the plaintiffs’ case looked weak. But their claims came to hinge on a new source of evidence—discovered documents that defendants had produced in the 1990s to the Japanese Ministry of Health and Welfare, including a series of animal studies showing potential birth defects that defendants had “performed specifically to satisfy Japanese regulatory requirements.”3.Id. at 108 (internal quotation marks omitted).Show More The use of discovery to uncover these communications allowed plaintiffs to defeat a motion for summary judgment, pegging their case to the content and application of Japanese regulations.4.Id. at 99.Show More

Switching to a different context, in a series of spring press releases in 2017, Mexican antitrust regulators announced an investigation into seven banks, including three U.S. entities, for “price fixing and collusion in the government bond intermediation market.”5.In re Mexican Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 383–84 (S.D.N.Y. 2019) (internal quotation marks omitted).Show More That announcement triggered a piggyback antitrust lawsuit in the United States against the three American banks: J.P. Morgan, Citibank, and Bank of America. All three defendants moved to dismiss the claim, arguing that plaintiffs’ complaint did not meet Twombly’s pleading standard because there was no plausible allegation of a conspiracy.6.Id.at 387; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545–46 (2007); Defendants’ Memorandum of Law in Support of Their Joint Motion to Dismiss for Failure to State a Claim at 7–18, In re Mexican Gov’t Bonds, 412 F. Supp. 3d 380 (No. 1:18-cv-02830).Show More Plaintiffs, among other things, responded that the Mexican investigation—and all of its potential documents—were a “plus factor” that makes their allegations more plausible.7.Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Joint Motion to Dismiss the Consolidated Class Action Complaint for Failure to State a Claim at 18, In re Mexican Gov’t Bonds, 412 F. Supp. 3d 380 (No. 1:18-cv-02830).Show More Due to settlement negotiations and dismissal on other grounds, Judge Oetken ultimately did not decide whether the existence of a foreign investigation can nudge a plaintiff’s claims beyond the plausibility requirement.8.In re Mexican Gov’t Bonds Antitrust Litig., No. 18-cv-2830, 2020 WL 7046837, at *4 (S.D.N.Y. Nov. 30, 2020) (granting motion to dismiss on other grounds); In re Mexican Gov’t Bonds Antitrust Litig., No. 18-cv-02830, 2020 WL 7398747, at *1 (S.D.N.Y. Dec. 16, 2020) (approving proposed settlement).Show More

In re Zofran and In re Mexican Government Bonds are just two of thousands of claims in the United States that have been heavily shaped by foreign regulations.9.See infra Part I.Show More Indeed, foreign regulators have come to exert a powerful and underestimated influence on American litigation. From the French Ministry of Health and the United Kingdom’s National Health Service, to the Japanese Fair Trade Commission and the European Commission, foreign agencies have shaped some of the most important cases in the last decade, ranging from antitrust claims, technology and privacy class actions, all the way to mass torts litigation.10 10.See In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., No. 2:18-md-2846, 2019 WL 341909, at *1 (S.D. Ohio Jan. 28, 2019) (National Health Services); Eve v. Sandoz Pharm. Corp., No. 98-1429, 2001 U.S. Dist. LEXIS 4531, at *71 (S.D. Ind. Mar. 7, 2001) (French Health Ministry); Plaintiffs’ Reply in Support of Their Motions to Compel re: RFP No. 33 and Interrogatory No. 35 at 1, In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051 (N.D. Cal. July 18, 2014) (No. 3:14-cv-03264) (Japanese and Korean Fair Trade Commissions); Special Master’s Order Denying Motion of Direct Purchaser Class Plaintiffs to Compel Hitachi to Produce Foreign Regulatory Documents at 4, In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179 (N.D. Cal. Apr. 26, 2011) (No. 3:07-md-01827) (European Commission).Show More The intersections between American litigation and foreign regulation include American discovery of documents produced to foreign regulators, coattail U.S. class actions against multinationals triggered by enforcement penalties abroad, and foreign agency letters submitted to U.S. district courts expressing an interest in a pending case.11 11.See infra Part I.Show More Sometimes the relationship is more informal—American litigators draw on foreign case theories, strategies, and findings.

In this manner, litigation is discreetly importing foreign regulatory zeal to the United States. Yet few American legal actors know that foreign regulation is impacting American cases, and even judges are unsure whether this practice is appropriate.

This Article presents the first systematic study of the relationship between foreign regulation and American litigation. It lays out the wide array of intersections between these two legal institutions, showing that this is an important, extensive, and understudied phenomenon. Scholars have long debated the role of foreign law in a handful of U.S. cases dealing with the alien tort statute, constitutional interpretation, or sovereign immunity, among others.12 12.See, e.g., Roper v. Simmons, 543 U.S. 551, 575–78 (2005) (constitutional interpretation); Hannah L. Buxbaum, Transnational Regulatory Litigation, 46 Va. J. Int’l L. 251, 253–54 (2006) (one hundred foreign-cubed securities suits); Cortelyou C. Kenney, Measuring Transnational Human Rights, 84 Fordham L. Rev. 1053, 1060 (2015) (sovereign immunity).Show More But the literature has mostly overlooked how thousands of domestic law claims rely extensively on foreign regulations.

More generally, the dominant view within the judiciary, led by the Supreme Court, has switched to skepticism of foreign law and foreign cases in U.S. courts.13 13.See, e.g., Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865, 1869 (2018) (declining to grant “conclusive effect” to a foreign government’s interpretation of its own law); Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 628–29 (7th Cir. 2010); Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1084–85 (2015); David J. Seipp, Our Law, Their Law, History, and the Citation of Foreign Law, 86 B.U. L. Rev. 1417, 1417 (2006); cf.Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013) (declining to apply the Alien Tort Statute extraterritorially). See alsoMaggie Gardner, “Foreignness”, 69 DePaul L. Rev. 469 (2020) (exploring what counts as a “foreign” case).Show More And this view often transcends partisan lines. Addressing questions about the potential approval of a coronavirus vaccine in the United Kingdom, Speaker Pelosi recently argued that Americans could not rely on foreign regulators who were not “on par” with the U.S. Food and Drug Administration:

We have very stringent rules about the Food and Drug Administration here about clinical trials, timing, number of people etc[.], so that when a drug is approved by the FDA that it’s safe and efficacious, then it has the trust of the American people. . . . My concern is that the UK’s system for that kind of judgment is not on par with ours. So if Boris Johnson decides he’s going to approve a drug and this president embraces that, that’s the concern I have.14 14.Peter Beaumont & Sarah Boseley, US Won’t Rely on UK for Covid Vaccine Safety Tests, Says Nancy Pelosi, Guardian (Oct. 9, 2020, 1:28 PM), https://www.theguardian.com/society/2020/oct/09/us-wont-rely-on-uk-for-covid-vaccine-safety-tests-says-nancy-pelosi [https://perma.cc/LQ3M-HRBZ] (emphasis added).Show More

Yet, despite this aversion to the importation of foreign law, American litigants routinely rely on foreign regulations to shape thousands of claims every year—even when foreign regulators disagree with U.S. regulators.15 15.See, e.g., Bodum, 621 F.3d at 628, 630–31.Show More This Article highlights the hidden but powerful role that foreign regulations have occupied in complex litigation, a fact which should inform assumptions in an array of related literatures.16 16.See Gregory Shaffer, Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards, 25 Yale J. Int’l L. 1, 74–75 (2000) (suggesting that U.S. businesses’ wariness to EU regulation is partially rooted in “businesses’ experience with U.S. legal culture”); David P. Graham & Jacqueline M. Moen, Discovery of Regulatory Information for Use in Private Products Liability Litigation: Getting Past the Road Blocks, 27 Wm. Mitchell L. Rev. 653, 655 (2000) (discussing cross-border discovery).Show More

Part I of the Article begins by outlining three major channels through which foreign regulation is creeping into complex litigation cases. One common channel involves cases with American plaintiffs against multinational defendants in which plaintiffs request in discovery any documents that defendant produced to or received from foreign regulators. The kicker is that often, plaintiffs are interested in these documents because some foreign regulators impose higher burdens of production than domestic ones. In this manner, plaintiffs can take advantage of more burdensome safety and efficacy requirements imposed by, say, France or Japan. These cases cover dozens of the most important multidistrict litigation suits (“MDL”), including hundreds of thousands of products liability claims over faulty blood filters,17 17.In re Bard IVC Filters Prods. Liab. Litig., 2020 WL 1166224, at *1–2 (D. Ariz. Mar. 6, 2020).Show More anti-psychotic medications linked to diabetes,18 18.In re Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006).Show More contraceptives,19 19.In re Yasmin & YAZ (Drospirenone) Mktg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100, 2011 WL 6733952, at *1 (S.D. Ill. Dec. 16, 2011).Show More a drug that allegedly caused birth defects,20 20.In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 94–95, 107–08 (D. Mass. 2019).Show More surgical mesh products,21 21.In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 509 (S.D. W. Va. 2014).Show More talcum powder,22 22.In re Johnson & Johnson Talcum Powder Prods., Mktg., Sales Pracs. & Prods. Liab. Litig., No. 3:16-md-02738, 2017 WL 5196741, at *1–2 (D.N.J. Nov. 6, 2017).Show More and a blood anticoagulant.23 23.In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402, 1404 (J.P.M.L. 2014).Show More Importantly, through discovery in these cases, plaintiffs benefit from foreign regulations that exceed FDA requirements and effectively subject defendants to foreign regulations in U.S. courts.24 24.This phenomenon is the reverse of cases in which foreign litigants seek to use our broad discovery system in aid of foreign cases. SeeYanbai Andrea Wang, Exporting American Discovery, 87 U. Chi. L. Rev. 2089, 2092–93 (2020).Show More

Section I.B outlines a second channel involving American plaintiffs riding on the coattails of foreign agency findings or enforcement. These cases arise when agencies in countries like France or Germany either file successful claims in their own courts against multinationals or publicize the results of a new investigation or study. These public filings prompt American plaintiffs to file analogous claims in the United States under domestic law, transforming foreign regulatory actions into U.S. litigation.25 25.It is worth noting that claims filed in the United States that do involve foreign law often become entangled with foreign regulatory agencies. See, e.g.,Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 246 (2004).Show More For instance, a 2015 World Health Organization study, which found that glyphosate was likely a human carcinogen, triggered a massive and ongoing case against Monsanto over the glyphosate-based weed killer Roundup.26 26.See Complaint at 2, 11–12, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. 2016) (No. 4:16-cv-00525), 2016 WL 11574934.Show More This WHO study was not only the spark for the case, but it has also shaped the entire path of the litigation, including complaints, media coverage, discovery, trial, and an ongoing battle of foreign regulators, in which both plaintiffs and defendant have submitted studies and evidence on foreign regulatory findings from dozens of countries.27 27.Indeed, in the midst of these cases, dozens of foreign regulators have banned glyphosate. See Where Is Glysophate Banned?, Baum Hedlund Aristei & Goldman PC, https://www.baumhedlundlaw.com/toxic-tort-law/monsanto-roundup-lawsuit/where-is-glyphosate-banned-/ [https://perma.cc/XFA4-HG2T] (last visited July 18, 2020).Show More Similarly, plaintiffs have filed an array of cases against tech companies over privacy violations, citing European data protection laws and enforcement actions. These privacy related claims may represent what one survey of general counsels calls “the next wave of class actions.”28 28.2019 Carlton Fields Class Action Survey: Best Practices in Reducing Cost and Managing Risk in Class Action Litigation 4 (2019).Show More These cases present a remarkable expansion of foreign regulatory influence on American litigation.29 29.See infra Parts I & II.Show More

The final channel discussed in Section I.C. is when foreign regulators file letters of interest in ongoing cases, primarily in the antitrust context. These cases also involve discovery of documents produced to foreign antitrust regulators. But, unlike the cases above, a foreign agency then files a letter with U.S. courts objecting to the alleged violation of sovereignty and requesting that the information be kept confidential. For instance, just in the past decade, plaintiffs have filed class action claims alleging price-fixing by multinational corporations in an array of industries like vitamins,30 30.Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1867 (2018).Show More air freight,31 31.In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1175, 2014 WL 7882100, at *1 (E.D.N.Y. Oct. 15, 2014).Show More metals,32 32.In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051, 1058 (N.D. Cal. 2015).Show More credit cards,33 33.In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 986 F. Supp. 2d 207, 213 (E.D.N.Y. 2013).Show More and TV panels.34 34.In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179, 1183 (N.D. Cal. 2009).Show More These cases prompted the Chinese Ministry of Commerce, the European Commission, the Korea Fair Trade Commission, and the Japanese Fair Trade Commission to write letters arguing that the disclosure of documents would weaken their antitrust laws.35 35.See infra notes 165, 169, 171 and accompanying text. This phenomenon represents one of myriad challenges posed by globalizing markets and the proliferation of antitrust law worldwide. SeeF. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165 (2004).Show More In this manner, foreign regulators influence American law. 36 36.There is an older literature on the reverse phenomenon—the application of U.S. antitrust law abroad. SeeJonathan T. Schmidt, Note, Keeping U.S. Courts Open to Foreign Antitrust Plaintiffs: A Hybrid Approach to the Effective Deterrence of International Cartels, 31 Yale J. Int’l L. 211, 221–22 (2006); Wolfgang Wurmnest, Foreign Private Plaintiffs, Global Conspiracies, and the Extraterritorial Application of U.S. Antitrust Law, 28 Hastings Int’l & Comp. L. Rev. 205 (2005).Show More

These three channels show how U.S. litigants are taking advantage of foreign regulations to shape cases in U.S. courts. Most of the time it is plaintiffs that seek foreign input to counter the strategy of multinational companies that selectively reveal information to some regulators but not others. But defendants can also present foreign regulatory approvals as exculpatory, pushing against liability in U.S. court. On the whole, U.S. litigants are importing regulatory information and not necessarily legal standards. But this information is only generated due to different legal requirements and is inevitably tied to a set of foreign institutions set up to produce and enforce law. This interaction is therefore not solely epistemic. As I argue below, foreign regulatory information can have a substantive effect on U.S. law.

After documenting these channels, Part II of the Article explores the consequences of this litigation and foreign regulation interaction, with specific focus on the role of foreign law in U.S. court, multidistrict litigation, regulatory harmonization, and the so-called Brussels Effect. Scholars and courts have long wrestled with the influence of foreign law on American litigation,37 37.Roper v. Simmons, 543 U.S. 551, 578 (2005); Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109, 116–24 (2005); Daniel J. Frank, Note, Constitutional Interpretation Revisited: The Effects of a Delicate Supreme Court Balance on the Inclusion of Foreign Law in American Jurisprudence, 92 Iowa L. Rev. 1037, 1064–69 (2007). For broader debates about foreign law in U.S. litigation, see, e.g., Jenny S. Martinez, Who’s Afraid of International and Foreign Law?, 104 Calif. L. Rev. 1579 (2016) [hereinafter, Martinez, Who’s Afraid?]; Ganesh Sitaraman, The Use and Abuse of Foreign Law in Constitutional Interpretation, 32 Harv. J.L. & Pub. Pol’y 653 (2009). In the most closely related work to date, David Noll argued that U.S. courts have promoted a policy whereby “U.S. regulatory systems are disabled in favor of regulation by other legal systems.” David L. Noll, The New Conflicts Law, 2 Stan. J. Complex Litig. 41, 44 (2014) [hereinafter Noll, Conflicts]. In this Article, however, I highlight how lower courts have allowed foreign regulation to complement domestic private enforcement.Show More and the rise of cross-border agency networks that promote regulatory convergence.38 38.Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155, 1224–25 (2007); Eric C. Chaffee, The Internationalization of Securities Regulation: The United States Government’s Role in Regulating the Global Capital Markets, 5 J. Bus. & Tech. L. 187, 193–95 (2010).Show More But these debates have not considered the ways in which American litigation can import foreign regulation. The Article argues that while this phenomenon promises a wealth of benefits for U.S. institutions, it has not been sufficiently recognized, appreciated, or nudged forward. The Article argues that litigation-led globalization clarifies debates in three areas:

In Section II.A, the Article provides a normative appraisal, arguing that litigation can borrow foreign regulatory information, a process that promises benefits and corrects the conventional wisdom about foreign law in U.S. courts.39 39.See, e.g., Jackson, supra note 37, 116–18; Stephen C. Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 Const. Comment. 59, 67 (2009) [hereinafter Yeazell, Foreign Law]; Eugene Volokh, Foreign Law in American Courts, 66 Okla. L. Rev. 219, 227 (2014). The Article contributes to a literature examining the relationship between foreign and domestic regulation. See, e.g., Jason Marisam, The Internationalization of Agency Actions, 83 Fordham L. Rev. 1909 (2015); Buxbaum, supra note 12.Show More One benefit is that private claims that draw on foreign regulators can serve as a “failsafe” when domestic regulators are captured. In that sense, this kind of litigation can improve and audit (or replace) the work of domestic regulators. For instance, litigators can measure the work of the FDA against health regulators in France, or the work of the FTC against regulators in Europe. This failsafe role is particularly important given that research shows the staggering amount of lobbying that takes place in the United States as compared to some European countries.40 40.Anu Bradford, The Brussels Effect: How the European Union Rules the World 251 (2019) [hereinafter Bradford, Brussels Effect Book].Show More Moreover, these cases can also allow domestic regulators to draw on foreign expertise and improve domestic rules. For instance, in In re Zofran—involving agencies in the United Kingdom, Canada, and Japan—the judge personally submitted a comment to the FDA disclosing the facts of the case and urging the FDA to engage in rule-making “as expeditiously as possible.”41 41.Letter from F. Dennis Saylor, IV, C.J. D. Mass., to Stacy Cline Amin, Chief Counsel, FDA (Dec. 13, 2019).Show More The use of foreign regulations to inform both tort liability and rulemaking exemplifies how litigation can domesticate the fruits of foreign regulations.

A sustained focus on litigation as an agent of globalization also highlights the understudied interaction between multidistrict litigation and foreign law.42 42.The one explicit comment about this phenomenon notes that evidentiary rulings usually exclude foreign regulatory evidence but fails to recognize that earlier discovery rulings typically allow it. SeeMark Herrmann & David B. Alden,Drug & Device Product Liability Litigation Strategy 383 (2012).Show More The federal multidistrict statute, 28 U.S.C. § 1407, allows a panel of federal judges to consolidate thousands of related cases.43 43.28 U.S.C. § 1407 (2018); see, e.g., Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2, 7 (2019) (discussing the literature) [hereinafter Engstrom, Lone Pine].Show More Most of the literature has focused on the domestic impact of this consolidation.44 44.See Engstrom, Lone Pine, supra note 43; Elizabeth Chamblee Burch, Remanding Multidistrict Litigation, 75 La. L. Rev. 399 (2014); Elizabeth Chamblee Burch & Margaret S. Williams, Judicial Adjuncts in Multidistrict Litigation, 120 Colum. L. Rev. 2129 (2020); Andrew D. Bradt, The Long Arm of Multidistrict Litigation, 59 Wm. & Mary L. Rev. 1165 (2018).Show More But it appears that foreign regulations have been at the core of some of the most important multidistrict litigation cases in the past decade, raising questions about the inner workings of MDLs and discovery. By uncovering and breaking down this process, the Article urges scholars to further explore the interaction between MDLs and foreign law.45 45.For samples of the existing literature on this relationship, see, e.g., Cassandra Burke Robertson, Transnational Litigation and Institutional Choice, 51 B.C. L. Rev. 1081 (2010).Show More

Section II.B of the Article then shows that litigation can be a surprising vehicle for regulatory harmonization, borrowing from and contributing to a literature on global administrative law.46 46.See generallyDaniel W. Drezner, Globalization, Harmonization, and Competition: The Different Pathways to Policy Convergence, 12 J. Eur. Pub. Pol’y 841 (2005) (considering the role of agencies in enhancing international regulatory harmonization); Beth Simmons, The International Politics of Harmonization: The Case of Capital Market Regulation, in Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies 42, 50–52 (David Vogel & Robert A. Kagan eds., 2004) (outlining challenges in regulating international capital markets); Jean Galbraith & David Zaring, Soft Law as Foreign Relations Law, 99 Cornell L. Rev. 735 (2014) [hereinafter Galbraith & Zaring, Soft Law] (recharacterizing “soft law” as the intersection of administrative and foreign relations law); Gabriella Blum, Bilateralism, Multilateralism, and the Architecture of International Law, 49 Harv. Int’l L.J. 323 (2008) (discussing the role of bureaucracies in shaping international treaty law); Anne-Marie Slaughter, Sovereignty and Power in a Networked World Order, 40 Stan. J. Int’l L. 283 (2004) (arguing that international cooperation enhances, rather than diminishes, state sovereignty); Lawrence L.C. Lee, The Basle Accords as Soft Law: Strengthening International Banking Supervision, 39 Va. J. Int’l L. 1 (1998) (recounting international movements against financial regulation and considering novel sources of international governance).Show More Recent works have explored the ways in which regulators develop transnational links that translate into common domestic regulatory agendas.47 47.See generallyBradford, Brussels Effect Book, supra note 40 (chronicling this phenomenon).Show More This is especially true during global events like the 2008 financial crisis, in which the Federal Reserve coordinated its response with European agencies.48 48.SeeGalbraith & Zaring, Soft Law, supra note 46, at 737.Show More But this Article argues that, because U.S. litigation often assumes the role of regulation, we should also expect litigation to serve as a vehicle of regulatory harmonization.49 49.See infra Subsection II.B.1.Show More And, as I show below, litigation may already be playing that role.50 50.See infra Subsection II.B.2.Show More

This litigation-led harmonization also challenges traditional views about U.S. adversarial legalism, as compared to European bureaucratic legalism.51 51.See, e.g., Robert A. Kagan, Adversarial Legalism: The American Way of Law 3–4 (2001); Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010); William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. Legal Stud. 1 (1975).Show More While much has been made of the differences between ex post private enforcement and ex ante regulation, the cases discussed here show that there can be substantial overlap and dialogue between the two systems.52 52.See infra Subsection II.A.2.Show More This straightforward finding may have implications for political theory and congressional choices.

Finally, Section II.C. joins a growing scholarly literature that aims to rethink the scope of global, cross-border regulation, with specific focus on the so-called Brussels Effect.53 53.See generally Anu Bradford, The Brussels Effect, 107 Nw. U. L. Rev. 1, 51–52 (2012) [hereinafter Bradford, Brussels Effect Article] (arguing that the European Union has exercised an outsize influence on global regulatory agendas by effectively exporting EU regulation to the rest of the world); Paul M. Schwartz, The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures, 126 Harv. L. Rev. 1966 (2013) (arguing that Internet law has emerged as an area of significant cross-border regulation); Stephen J. Choi & Andrew T. Guzman, Portable Reciprocity: Rethinking the International Reach of Securities Regulation, 71 S. Cal. L. Rev. 903 (1998) (arguing in favor of international regulatory competition in securities law); Carla L. Reyes, Note, The U.S. Discovery-EU Privacy Directive Conflict: Constructing a Three-Tiered Compliance Strategy, 19 Duke J. Comp. & Int’l L. 357 (2009) (discussing the challenges of incongruent regulatory schemes governing discovery in transnational litigation between U.S. and EU litigants).Show More Some recent works argue that the European Union successfully exports its regulations to the rest of the world in a variety of ways.54 54.Bradford, Brussels Effect Article, supra note 53, at 5–6.Show More While that literature sets private litigation aside, this Article shows that the Brussels Effect may be both larger and narrower than previously understood. On the one hand, when litigants request documents produced to European regulators, including in data protection cases, those regulators are de facto exporting their agendas to the American legal system. This influence strengthens the scope and impact of the Brussels Effect. On the other hand, perhaps a better way to view this phenomenon is that American courts and litigants are voluntarily importing foreign regulations through complex litigation, giving judges and litigants a large role in determining the reach of the Brussels Effect.

Foreign regulations, in short, can have an array of legal, economic, and political effects on U.S. law and institutions. This sustained focus on foreign regulations is timely. The weakening of multilateralism and the U.S. administrative state calls for new avenues of cross-border legal interaction.55 55.These developments have prompted a substantial body of literature that has called for such interaction in a variety of contexts. See, e.g.,Harold James, International Order after the Financial Crisis, 1 Penn. St. J.L. & Int’l Affs. 275, 283–84 (2012) (calling for cross-border collaboration in the economic regulation context); Paul M. Schwartz & Karl-Nikolaus Peifer, Transatlantic Data Privacy Law, 106 Geo. L.J. 115, 179 (2017) (calling for cross-border collaboration in the data privacy context).Show More The Article demonstrates the power and promise of litigation-led harmonization.

After analyzing the implications of litigation as a tool for importing foreign regulation, Part III of the Article focuses on prescriptions, arguing that courts should invite domestic agencies to submit letters in these cases. Much of the literature frames the influence of foreign law on American courts as an either-or phenomenon: the internationalists encourage U.S. courts to use foreign law,56 56.See Martinez, Who’s Afraid?, supra note 37, at 1583; Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1824 (1998).Show More while the nationalists decry the legitimacy of such an exercise.57 57.See, e.g.,Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 Stan. L. Rev. 1557, 1560 (2003).Show More But this has always been, and continues to be, a false dichotomy in the context of litigation. We cannot decide ex ante that it is universally proper or improper to draw on foreign regulations. Rather, we should create better procedures to channel and control foreign regulatory input. The Article argues that domestic agencies can help courts understand—through the submission of letters or amicus briefs—the use and implications of foreign regulations in litigation.

Lastly, a word about this Article’s methodology is appropriate. I draw unique insights here from an in-depth examination of hundreds of MDL cases, dozens of foreign regulatory enforcement actions, a review of legal documents citing foreign regulation or regulators, and unstructured correspondence and interviews with plaintiffs’ attorneys who appeared in the relevant cases. The Article further explains the specific methods applied in each section below.

The Article proceeds in three parts. Part I discusses the three channels of interaction between U.S. litigation and foreign regulation. Part II argues that these interactions have a wide array of effects on U.S. law, courts, and institutions. Finally, Part III argues that courts should invite domestic agency input in these cases.

  1. * Assistant Professor, Stanford Law School. For thoughtful comments and conversations, I thank Aaron Simowitz, Pam Bookman, Anu Bradford, Adam Chilton, John Coyle, William Dodge, Robin Effron, Seth Endo, Brian Fitzpatrick, Nora Freeman Engstrom, Maggie Gardner, Manuel Gomez, Andrew Hammond, Chimene Keitner, Amalia Kessler, Richard Marcus, Doug Melamed, Saul Levmore, Lisa Larrimore Ouellette, Aaron Simowitz, Yanbai Andrea Wang, Rebecca Wexler, and participants at the Berkeley Faculty Workshop, the Private International Law Workshop in U.C. Davis, the AALS Conflicts of Law Panel, and the Criser Distinguished Lecture Series at the University of Florida Levin College of Law. I am most grateful to Brian Erickson for invaluable research assistance, and I also thank Chris Meyer, Sam Telzak, and Mackenzie Austin.
  2. In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 98 (D. Mass. 2019).
  3. Id.
  4. Id. at 108 (internal quotation marks omitted).
  5. Id. at 99.
  6. In re Mexican Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 383–84 (S.D.N.Y. 2019) (internal quotation marks omitted).
  7. Id. at 387; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545–46 (2007); Defendants’ Memorandum of Law in Support of Their Joint Motion to Dismiss for Failure to State a Claim at 7–18, In re Mexican Gov’t Bonds, 412 F. Supp. 3d 380 (No. 1:18-cv-02830).
  8. Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Joint Motion to Dismiss the Consolidated Class Action Complaint for Failure to State a Claim at 18, In re Mexican Gov’t Bonds, 412 F. Supp. 3d 380 (No. 1:18-cv-02830).
  9. In re Mexican Gov’t Bonds Antitrust Litig., No. 18-cv-2830, 2020 WL 7046837, at *4 (S.D.N.Y. Nov. 30, 2020) (granting motion to dismiss on other grounds); In re Mexican Gov’t Bonds Antitrust Litig., No. 18-cv-02830, 2020 WL 7398747, at *1 (S.D.N.Y. Dec. 16, 2020) (approving proposed settlement).
  10. See infra Part I.
  11. See In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., No. 2:18-md-2846, 2019 WL 341909, at *1 (S.D. Ohio Jan. 28, 2019) (National Health Services); Eve v. Sandoz Pharm. Corp., No. 98-1429, 2001 U.S. Dist. LEXIS 4531, at *71 (S.D. Ind. Mar. 7, 2001) (French Health Ministry); Plaintiffs’ Reply in Support of Their Motions to Compel re: RFP No. 33 and Interrogatory No. 35 at 1, In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051 (N.D. Cal. July 18, 2014) (No. 3:14-cv-03264) (Japanese and Korean Fair Trade Commissions); Special Master’s Order Denying Motion of Direct Purchaser Class Plaintiffs to Compel Hitachi to Produce Foreign Regulatory Documents at 4, In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179 (N.D. Cal. Apr. 26, 2011) (No. 3:07-md-01827) (European Commission).
  12. See infra Part I.
  13. See, e.g., Roper v. Simmons, 543 U.S. 551, 575–78 (2005) (constitutional interpretation); Hannah L. Buxbaum, Transnational Regulatory Litigation, 46 Va. J. Int’l L. 251, 253–54 (2006) (one hundred foreign-cubed securities suits); Cortelyou C. Kenney, Measuring Transnational Human Rights, 84 Fordham L. Rev. 1053, 1060 (2015) (sovereign immunity).
  14. See, e.g., Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865, 1869 (2018) (declining to grant “conclusive effect” to a foreign government’s interpretation of its own law); Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 628–29 (7th Cir. 2010); Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1084–85 (2015); David J. Seipp, Our Law, Their Law, History, and the Citation of Foreign Law, 86 B.U. L. Rev. 1417, 1417 (2006); cf. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013) (declining to apply the Alien Tort Statute extraterritorially). See also Maggie Gardner, “Foreignness”, 69 DePaul L. Rev. 469 (2020) (exploring what counts as a “foreign” case).
  15. Peter Beaumont & Sarah Boseley, US Won’t Rely on UK for Covid Vaccine Safety Tests, Says Nancy Pelosi, Guardian (Oct. 9, 2020, 1:28 PM), https://www.theguardian.com/society/2020/oct/09/us-wont-rely-on-uk-for-covid-vaccine-safety-tests-says-nancy-pelosi [https://perma.cc/LQ3M-HRBZ] (emphasis added).
  16. See, e.g., Bodum, 621 F.3d at 628, 630–31.
  17. See Gregory Shaffer, Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards, 25 Yale J. Int’l L. 1, 74–75 (2000) (suggesting that U.S. businesses’ wariness to EU regulation is partially rooted in “businesses’ experience with U.S. legal culture”); David P. Graham & Jacqueline M. Moen, Discovery of Regulatory Information for Use in Private Products Liability Litigation: Getting Past the Road Blocks, 27 Wm. Mitchell L. Rev. 653, 655 (2000) (discussing cross-border discovery).
  18. In re Bard IVC Filters Prods. Liab. Litig., 2020 WL 1166224, at *1–2 (D. Ariz. Mar. 6, 2020).
  19. In re Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006).
  20. In re Yasmin & YAZ (Drospirenone) Mktg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100, 2011 WL 6733952, at *1 (S.D. Ill. Dec. 16, 2011).
  21. In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 94–95, 107–08 (D. Mass. 2019).
  22. In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 509 (S.D. W. Va. 2014).
  23. In re Johnson & Johnson Talcum Powder Prods., Mktg., Sales Pracs. & Prods. Liab. Litig., No. 3:16-md-02738, 2017 WL 5196741, at *1–2 (D.N.J. Nov. 6, 2017).
  24. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402, 1404 (J.P.M.L. 2014).
  25. This phenomenon is the reverse of cases in which foreign litigants seek to use our broad discovery system in aid of foreign cases. See Yanbai Andrea Wang, Exporting American Discovery, 87 U. Chi. L. Rev. 2089, 2092–93 (2020).
  26. It is worth noting that claims filed in the United States that do involve foreign law often become entangled with foreign regulatory agencies. See, e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 246 (2004).
  27. See Complaint at 2, 11–12, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. 2016) (No. 4:16-cv-00525), 2016 WL 11574934.
  28. Indeed, in the midst of these cases, dozens of foreign regulators have banned glyphosate. See Where Is Glysophate Banned?, Baum Hedlund Aristei & Goldman PC, https://www.baumhedlundlaw.com/toxic-tort-law/monsanto-roundup-lawsuit/where-is-glyphosate-banned-/ [https://perma.cc/XFA4-HG2T] (last visited July 18, 2020).
  29. 2019 Carlton Fields Class Action Survey: Best Practices in Reducing Cost and Managing Risk in Class Action Litigation 4 (2019).
  30. See infra Parts I & II.
  31. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1867 (2018).
  32. In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1175, 2014 WL 7882100, at *1 (E.D.N.Y. Oct. 15, 2014).
  33. In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051, 1058 (N.D. Cal. 2015).
  34. In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 986 F. Supp. 2d 207, 213 (E.D.N.Y. 2013).
  35. In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179, 1183 (N.D. Cal. 2009).
  36. See infra notes 165, 169, 171 and accompanying text. This phenomenon represents one of myriad challenges posed by globalizing markets and the proliferation of antitrust law worldwide. See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165 (2004).
  37. There is an older literature on the reverse phenomenon—the application of U.S. antitrust law abroad. See Jonathan T. Schmidt, Note, Keeping U.S. Courts Open to Foreign Antitrust Plaintiffs: A Hybrid Approach to the Effective Deterrence of International Cartels, 31 Yale J. Int’l L. 211, 221–22 (2006); Wolfgang Wurmnest, Foreign Private Plaintiffs, Global Conspiracies, and the Extraterritorial Application of U.S. Antitrust Law, 28 Hastings Int’l & Comp. L. Rev. 205 (2005).
  38. Roper v. Simmons, 543 U.S. 551, 578 (2005); Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109, 116–24 (2005); Daniel J. Frank, Note, Constitutional Interpretation Revisited: The Effects of a Delicate Supreme Court Balance on the Inclusion of Foreign Law in American Jurisprudence, 92 Iowa L. Rev. 1037, 1064–69 (2007). For broader debates about foreign law in U.S. litigation, see, e.g., Jenny S. Martinez, Who’s Afraid of International and Foreign Law?, 104 Calif. L. Rev. 1579 (2016) [hereinafter, Martinez, Who’s Afraid?]; Ganesh Sitaraman, The Use and Abuse of Foreign Law in Constitutional Interpretation, 32 Harv. J.L. & Pub. Pol’y 653 (2009). In the most closely related work to date, David Noll argued that U.S. courts have promoted a policy whereby “U.S. regulatory systems are disabled in favor of regulation by other legal systems.” David L. Noll, The New Conflicts Law, 2 Stan. J. Complex Litig. 41, 44 (2014) [hereinafter Noll, Conflicts]. In this Article, however, I highlight how lower courts have allowed foreign regulation to complement domestic private enforcement.
  39. Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155, 1224–25 (2007); Eric C. Chaffee, The Internationalization of Securities Regulation: The United States Government’s Role in Regulating the Global Capital Markets, 5 J. Bus. & Tech. L. 187, 193–95 (2010).
  40. See, e.g., Jackson, supra note 37, 116–18; Stephen C. Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 Const. Comment. 59, 67 (2009) [hereinafter Yeazell, Foreign Law]; Eugene Volokh, Foreign Law in American Courts, 66 Okla. L. Rev. 219, 227 (2014). The Article contributes to a literature examining the relationship between foreign and domestic regulation. See, e.g., Jason Marisam, The Internationalization of Agency Actions, 83 Fordham L. Rev. 1909 (2015); Buxbaum, supra note 12.
  41. Anu Bradford, The Brussels Effect: How the European Union Rules the World 251 (2019) [hereinafter Bradford, Brussels Effect Book].
  42. Letter from F. Dennis Saylor, IV, C.J. D. Mass., to Stacy Cline Amin, Chief Counsel, FDA (Dec. 13, 2019).
  43. The one explicit comment about this phenomenon notes that evidentiary rulings usually exclude foreign regulatory evidence but fails to recognize that earlier discovery rulings typically allow it. See Mark Herrmann & David B. Alden, Drug & Device Product Liability Litigation Strategy 383 (2012).
  44. 28 U.S.C. § 1407 (2018); see, e.g., Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2, 7 (2019) (discussing the literature) [hereinafter Engstrom, Lone Pine].
  45. See Engstrom, Lone Pine, supra note 43; Elizabeth Chamblee Burch, Remanding Multidistrict Litigation, 75 La. L. Rev. 399 (2014); Elizabeth Chamblee Burch & Margaret S. Williams, Judicial Adjuncts in Multidistrict Litigation, 120 Colum. L. Rev. 2129 (2020); Andrew D. Bradt, The Long Arm of Multidistrict Litigation, 59 Wm. & Mary L. Rev. 1165 (2018).
  46. For samples of the existing literature on this relationship, see, e.g., Cassandra Burke Robertson, Transnational Litigation and Institutional Choice, 51 B.C. L. Rev. 1081 (2010).
  47. See generally Daniel W. Drezner, Globalization, Harmonization, and Competition: The Different Pathways to Policy Convergence, 12 J. Eur. Pub. Pol’y 841 (2005) (considering the role of agencies in enhancing international regulatory harmonization); Beth Simmons, The International Politics of Harmonization: The Case of Capital Market Regulation, in Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies 42, 50–52 (David Vogel & Robert A. Kagan eds., 2004) (outlining challenges in regulating international capital markets); Jean Galbraith & David Zaring, Soft Law as Foreign Relations Law, 99 Cornell L. Rev. 735 (2014) [hereinafter Galbraith & Zaring, Soft Law] (recharacterizing “soft law” as the intersection of administrative and foreign relations law); Gabriella Blum, Bilateralism, Multilateralism, and the Architecture of International Law, 49 Harv. Int’l L.J. 323 (2008) (discussing the role of bureaucracies in shaping international treaty law); Anne-Marie Slaughter, Sovereignty and Power in a Networked World Order, 40 Stan. J. Int’l L. 283 (2004) (arguing that international cooperation enhances, rather than diminishes, state sovereignty); Lawrence L.C. Lee, The Basle Accords as Soft Law: Strengthening International Banking Supervision, 39 Va. J. Int’l L. 1 (1998) (recounting international movements against financial regulation and considering novel sources of international governance).
  48. See generally Bradford, Brussels Effect Book, supra note 40 (chronicling this phenomenon).
  49. See Galbraith & Zaring, Soft Law, supra note 46, at 737.
  50. See infra Subsection II.B.1.
  51. See infra Subsection II.B.2.
  52. See, e.g., Robert A. Kagan, Adversarial Legalism: The American Way of Law 3–4 (2001); Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010); William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. Legal Stud. 1 (1975).
  53. See infra Subsection II.A.2.
  54. See generally Anu Bradford, The Brussels Effect, 107 Nw. U. L. Rev.
    1,

    51–52 (2012) [hereinafter Bradford, Brussels Effect Article] (arguing that the European Union has exercised an outsize influence on global regulatory agendas by effectively exporting EU regulation to the rest of the world); Paul M. Schwartz, The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures, 126 Harv. L. Rev. 1966 (2013) (arguing that Internet law has emerged as an area of significant cross-border regulation); Stephen J. Choi & Andrew T. Guzman, Portable Reciprocity: Rethinking the International Reach of Securities Regulation, 71 S. Cal. L. Rev. 903 (1998) (arguing in favor of international regulatory competition in securities law); Carla L. Reyes, Note, The U.S. Discovery-EU Privacy Directive Conflict: Constructing a Three-Tiered Compliance Strategy, 19 Duke J. Comp. & Int’l L. 357 (2009) (discussing the challenges of incongruent regulatory schemes governing discovery in transnational litigation between U.S. and EU litigants).

  55. Bradford, Brussels Effect Article, supra note 53, at 5–6.
  56. These developments have prompted a substantial body of literature that has called for such interaction in a variety of contexts. See, e.g., Harold James, International Order after the Financial Crisis, 1 Penn. St. J.L. & Int’l Affs. 275, 283–84 (2012) (calling for cross-border collaboration in the economic regulation context); Paul M. Schwartz & Karl-Nikolaus Peifer, Transatlantic Data Privacy Law, 106 Geo. L.J. 115, 179 (2017) (calling for cross-border collaboration in the data privacy context).
  57. See Martinez, Who’s Afraid?, supra note 37, at 1583; Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1824 (1998).
  58. See, e.g., Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 Stan. L. Rev. 1557, 1560 (2003).
  59. Volokh, supra note 39, at 224.
  60. See Bradford, Brussels Effect Article, supra note 53, at 3

    4.

  61. See supra note 37.
  62. Restatement (Second) of Conflict of Laws § 2 cmt. a (Am. L. Inst. 1971); Yeazell, supra note 39, at 60–61; Volokh, supra note 39, at 227–31; Noll, Conflicts, supra note 37.
  63. See, e.g., In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 306–07 (E.D. Pa. 2016); In re Seroquel Prods. Liab. Litig., 601 F. Supp. 2d 1313, 1318–19 (M.D. Fla. 2009).
  64. Diego Zambrano, A Comity of Errors: The Rise, Fall, and Return of International Comity in Transnational Discovery, 34 Berkeley J. Int’l L. 157, 198–99 (2016) [hereinafter Zambrano, Comity]. See also Wang, supra note 24, at 2154–55 (calling for cross-border information sharing). Much of this may also be influenced by the specifics of e-discovery which makes it easier to access information stored abroad. Cf. Seth Katsuya Endo, Discovery Hydraulics, 52 U.C. Davis L. Rev. 1317 (2019) (discussing the unexpected consequences of e-discovery).
  65. See Zambrano, Comity, supra note 63, at 167 (citing First City, Tex.-Hous., N.A. v. Rafidain Bank, 281 F.3d 48, 54 (2d Cir. 2002)).
  66. Fed. R. Civ. P. 26(b)(1).
  67. Id.
  68. Zambrano, Comity, supra note 63, at 164–65.
  69. Others have noted that this area of law involves constant procedural experimentation. See, e.g., Engstrom, Lone Pine, supra note 43, at 9–10; Elizabeth Chamblee Burch, Nudges and Norms in Multidistrict Litigation: A Response to Engstrom, Yale L.J.F. 64, 67 (2019), https://www.yalelawjournal.org/forum/nudges-and-norms-in-multidistrict-litigation [https://perma.cc/TNJ7-53EL].
  70. State tort law provides an interesting and useful avenue for “fraud-on-the-FDA” claims that would normally be preempted. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001).
  71. See, e.g., Mathias Reimann, Liability for Defective Products at the Beginning of the Twenty-First Century: Emergence of a Worldwide Standard?, 51 Am. J. Comp. L. 751, 810 (2003).
  72. Of course, there is a distinction between information generated internally by the company and information generated only to satisfy foreign regulatory requirements. For information that exists regardless of foreign regulation, the policy question discussed in Part II is whether (i) we welcome any information that increases the likelihood that courts will make fully informed decisions or (ii) mindful of the costs and benefits of such laws, we want to confine litigation to that which can be sustained by the ingenuity of the plaintiffs themselves, even at the expense of reducing punishment for bad acts. I thank Doug Melamed for some of the details here.
  73. Hardy v. Pharmacia Corp., No. 4:09-cv-119, 2011 WL 2118983, at *3 (M.D. Ga. May 27, 2011).
  74. See Apps. I–II.
  75. In re Bard IVC Filters Prods. Liab. Litig., No. MDL 15-02651, 2020 WL 1166224, at *1 (D. Ariz. Mar. 6, 2020).
  76. In re Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006); U.S. Jud. Panel on Multidistrict Litig., Multidistrict Litigation Terminated Through September 30, 2020, https://www.jpml.uscourts.gov/sites/jpml/files/Cumulative%20Terminated%‌202020_‌0.pdf (last visited Apr. 18, 2021) [https://perma.cc/3BT4-PPP8].
  77. In re Yasmin & YAZ (Drospirenone) Mktg., Sales Practs. & Prods. Liab. Litig., No. 09-20021, 2011 WL 6733952, at *1 (S.D. Ill. Dec. 16, 2011); U.S. Jud. Panel on Multidistrict Litig., supra note 75.
  78. In re Ethicon Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 508–09 (S.D. W. Va. 2014); U.S. Jud. Panel on Multidistrict Litig., MDL Statistics Report—Distribution of Pending MDL Dockets by Actions Pending, https://www.jpml.uscourts.gov/sites/‌jpml/files/Pending_MDL_Dockets_By_Actions_Pending-March-15-2021.pdf (last visited Apr. 18, 2021) [https://perma.cc/3ZX9-YALU].
  79. In re Johnson & Johnson Talcum Powder Prods., Mktg., Sales Pracs. & Prods. Liab. Litig., No. 3:16-md-02738, 2017 WL 5196741, at *1 (D.N.J. Nov. 6, 2017).
  80. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402, 1403–04 (J.P.M.L. 2014); U.S. Jud. Panel on Multidistrict Litig., supra note 77.
  81. See Apps. I–II.
  82. In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prods. Liab. Litig., 181 F. Supp. 3d 278, 307 (E.D. Pa. 2016).
  83. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 566 (D. Ariz. 2016).
  84. In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., No. 2:18-md-2846, 2019 WL 341909, at *1 (S.D. Ohio Jan. 28, 2019) (internal citation omitted).
  85. Yet, foreign privilege law can differ from U.S. law. For a discussion of selective waiver, see In re Pac. Pictures Corp., 679 F.3d 1121, 1127 (9th Cir. 2012). Confidentiality agreements and statutory provisions could also change this calculus. See 12 U.S.C. § 1828(x) (2018); Saito v. McKesson HBOC, Inc., No. CIV.A. 18553, 2002 WL 31657622, at *3 (Del. Ch. Nov. 13, 2002).
  86. See Joseph W. Cormier, Advancing FDA’s Regulatory Science Through Weight of Evidence Evaluations, 28 J. Contemp. Health L. & Pol’y 1, 1–2 (2011).
  87. Cf. Catherine M. Sharkey, The Opioid Litigation: The FDA Is MIA, 124 Dick. L. Rev. 669, 671 (2020) (discussing the regulatory shortcomings of the American FDA in light of the opioid epidemic) [hereinafter Sharkey, Opioid Litigation].
  88. See, e.g., Brunston v. Bayer Healthcare Pharm., Inc., No. EDCV 13-1904, 2014 WL 12587032, at *1–2 (C.D. Cal. May 16, 2014).
  89. See, e.g., Hardy v. Pharmacia Corp., No. 4:09–cv–119, 2011 WL 2118983, at *3 (M.D. Ga. May 27, 2011).
  90. Kubicki v. Medtronic, 307 F.R.D. 291, 294 (D.D.C. 2014).
  91. See, e.g., In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 306–07 (E.D. Pa. 2016); In re Seroquel Prods. Liab. Litig., 601 F. Supp. 2d 1313, 1316, 1318–19 (M.D. Fla. 2009).
  92. Cf. In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1336 (S.D. Fla. 2010) (declining to admit expert testimony in part because it “merely summarizes and restates the findings of the foreign Inspection Reports” without broader context).
  93. See In re Tylenol, 181 F. Supp. 3d at 306–08.
  94. See Eve v. Sandoz Pharm. Corp., No. IP 98-1429, 2001 U.S. Dist. LEXIS 4531, at *60–63, *69–71 (S.D. Ind. Mar. 7, 2001).
  95. See, e.g., Hodges v. Pfizer, Inc., No. 14-4855, 2016 WL 1222229, at *2–3 (D. Minn. Mar. 28, 2016) (considering the arguments that foreign regulatory evidence is irrelevant or inadmissible); In re Cathode Ray Tube (CRT) Antitrust Litig., No. C-07-5944, 2014 WL 5462496, at *4–7 (N.D. Cal. Oct. 23, 2014) (considering and rejecting the argument that a discovery request should be denied because disclosure could raise a conflict with foreign law).
  96. Hodges, 2016 WL 1222229, at *3. Compare St. Jude Med. S.C., Inc. v. Sorin CRM USA, Inc., No. 14–cv–00119, 2014 WL 1056526, at *4 (D. Colo. Mar. 19, 2014) (granting plaintiff’s request), with In re Seroquel Prods. Liab. Litig., No. 6:06-md-1769, 2008 WL 508391, at *2 (M.D. Fla. Feb. 21, 2008) (dismissing such a request).
  97. See Apps. I–II.
  98. See App. I.
  99. Hardy v. Pharmacia Corp., No. 4:09-cv-119, 2011 WL 2118983, at *3 (M.D. Ga. May 27, 2011).
  100. Hodges, 2016 WL 1222229 at *3.
  101. Pretrial Order at 4, In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327 (S.D. W. Va. Sept. 18, 2013) (Pretrial order #68 granting plaintiff’s motion to compel and denying defendant’s motion for protective order).
  102. Id. at 4–7.
  103. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 566 (D. Ariz. Sep. 16, 2016). See also SmithKline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 1999 WL 311697, at *7 (N.D. Ill. Mar. 13, 1999) (allowing discovery of only a portion of the documents that plaintiff requested from a prior Canadian suit); Kubicki v. Medtronic, 307 F.R.D. 291, 296–97 (D.D.C. 2014) (refusing to grant plaintiffs request for “all documents exchanged with foreign and domestic regulators for 15 years”).
  104. SmithKline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 1999 WL 311697, at *6 (N.D. Ill. May 13, 1999) (declining a discovery request that would require defendants to “embark on a fishing expedition in pursuit of . . . products that will never reach the United States”).
  105. See, e.g., In re Yasmin & Yaz: (Drospirenone) Mktg., Sales Pracs. & Relevant Prods. Liab. Litig., No. 3:09-md-02100, 2011 WL 3759699, at *4 (S.D. Ill. Aug. 18, 2011); In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 2010 WL 3420517, at *6–7 (E.D.N.Y. Aug. 27, 2010); Campbell v. Facebook Inc., No. 13-cv-05996, 2015 WL 4463809, at *4–5 (N.D. Cal. July 21, 2015).
  106. In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., No. 2:18-md-2846, 2019 WL 341909, at *1 (S.D. Ohio Jan. 28, 2019); U.S. Jud. Panel on Multidistrict Litig., supra note 77.
  107. In re Davol, 2019 WL 341909, at *2.
  108. Id. at *1.
  109. Id. at *2.
  110. Id. at *2.
  111. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 563 (D. Ariz. Sept. 16, 2016); U.S. Jud. Panel on Multidistrict Litig., supra note 77.
  112. In re Bard IVC Filters, 317 F.R.D. at 563.
  113. Id. at 566.
  114. Id.
  115. Id.
  116. In re Eur. Gov’t Bonds Antitrust Litig., No. 19 CIV. 2601, 2020 WL 4273811, at *2–4 (S.D.N.Y. July 23, 2020).
  117. Id.
  118. Id. at *10.
  119. Brenner v. Procter & Gamble Co., No. SACV 16-1093, 2016 WL 8192946, at *1 (C.D. Cal. Oct. 20, 2016) (internal citation omitted).
  120. Class Action Complaint at 2, Brenner v. Procter & Gamble Co., 2016 WL 8192946 (C.D. Cal. June 13, 2016) (No. 8:16-cv-1093).
  121. Brenner, 2016 WL 8192946, at *6 (emphasis added).
  122. Rotondo v. Amylin Pharm., Inc., No. B275314, 2018 WL 5800780, at *4 (Cal. Ct. App. Nov. 6, 2018).
  123. In re Commodity Exch., Inc., 213 F. Supp. 3d 631, 661 (S.D.N.Y. 2016).
  124. Hinds Cnty., Miss. v. Wachovia Bank N.A., 790 F. Supp. 2d 106, 115 (S.D.N.Y. 2011); see, e.g., Starr v. Sony BMG Music Ent., 592 F.3d 314, 323–24 (2d. Cir. 2010). But see In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011, 1024 (N.D. Cal. 2007) (investigation itself “carries no weight”); In re Commodity Exch., 213 F. Supp. 3d at 662 (same).
  125. Barry’s Cut Rate Stores Inc. v. Visa, Inc., No. 05-md-1720, 2019 WL 7584728, at *32 (E.D.N.Y. Nov. 20, 2019).
  126. Id.
  127. Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897, 921 (N.D. Cal. 2019).
  128. In re Mexican Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 390 (S.D.N.Y. 2019).
  129. Complaint at 6, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. 2016) (No. 4:16-cv-00525).
  130. See id. at 11–12.
  131. Id.
  132. See In re Roundup Prods. Liab. Litig., 385 F. Supp. 3d 1042, 1047 (N.D. Cal. 2019). Indeed, in the midst of these cases, dozens of foreign regulators have banned glyphosate. See Where Is Glysophate Banned?, supra note 27.
  133. Transcript of Proceedings of the Official Electronic Sound Recording 2:14 PM–3:01 PM at 9, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. argued May 3, 2016) (No. 3:16-cv-00525).
  134. See In re Roundup, 385 F. Supp. 3d at 1047.
  135. Id.
  136. W. Gregory Voss & Kimberly A. Houser, Personal Data and the GDPR: Providing a Competitive Advantage for U.S. Companies, 56 Am. Bus. L.J. 287, 288 (2019).
  137. Paul W. Schwartz, Global Data Privacy: The EU Way, 94 N.Y.U. L. Rev. 771, 776 (2019).
  138. Bradford, Brussels Effect Book, supra note 40, at 237.
  139. Halliburton Co. v. Erica P. John Fund, Inc. 573 U.S. 258, 263 (2014).
  140. See, e.g., id. at 263–64.
  141. Flynn v. Sientra, Inc., No. CV 15-07548, 2016 WL 3360676, at *1–2 (C.D. Cal. June 9, 2016).
  142. Jasin v. Vivus, Inc., No. 14-cv-03263, 2016 WL 1570164, at *1 (N.D. Cal. Apr. 19, 2016), aff’d, Jasin v. Vivus, Inc., 721 F. App’x 665 (9th Cir. 2018).
  143. Vallabhaneni v. Endocyte, Inc., No. 1:14-cv-01048, 2016 WL 51260, at *1, *16 (S.D. Ind. Jan. 4, 2016).
  144. Class Action Complaint for Violation of the Federal Securities Laws at 9–10, Yuan v. Facebook, Inc., No. 5:18-cv-01725 (N.D. Cal. Mar. 20, 2018).
  145. Class Action Complaint at 7, Ikeda v. Baidu, No. 3:20-cv-02768 (N.D. Cal. Apr. 21, 2020).
  146. See, e.g., In re Facebook, Inc. Sec. Litig., 405 F. Supp. 3d 809, 846 (N.D. Cal 2019).
  147. Complaint for Violation of the Federal Securities Laws at 4, Gordon v. Nielsen Holdings PLC, No. 1:18-cv-07143 (S.D.N.Y. Aug. 8, 2018).
  148. See id. at 3–4.
  149. Consolidated Amended Complaint for Violations of the Federal Securities Laws at 13–14, 16–17, In re Alphabet Securities Litigation, 4:18-cv-06245 (N.D. Cal. Apr. 26, 2019).
  150. [Unredacted] Verified Stockholder Derivative Complaint for Violation of Securities Law, Breach of Fiduciary Duty, Waste of Corporate Assets, and Unjust Enrichment at 2, 37, Green et al. v. Page et al., No. 5:19-cv-01165 (N.D. Cal. Mar. 22, 2019).
  151. See In re Facebook, 405 F. Supp. 3d at 847.
  152. See Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1873–74 (2018) (discussing the role of foreign regulators but only in interpreting foreign law).
  153. Andrew T. Guzman, Is International Antitrust Possible?, 73 N.Y.U. L. Rev. 1501, 1536 (1998).
  154. Id. at 1507 n.14.
  155. See, e.g., Brief for the Japan External Trade Organization as Amicus Curiae, Sumitomo Shoji Am., Inc. v. Avigliano, 457 U.S. 176 (1982) (Nos. 80-2070, 81-24), 1982 WL 608724, at *2, *7.
  156. See Zambrano, Comity, supra note 63, at 170.
  157. William S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101 (1998).
  158. See supra Subsection I.B.1.
  159. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1870 (2018).
  160. In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1175, 2014 WL 7882100, at *1 (E.D.N.Y. Oct. 15, 2014).
  161. In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051, 1058 (N.D. Cal. 2015).
  162. In re Payment Interchange Fee & Merch. Disc. Antitrust Litig., 986 F. Supp. 2d 207, 213 (E.D.N.Y. 2013).
  163. In re Rubber Chems. Antitrust Litig., 232 F.R.D. 346, 348 (N.D. Cal. 2005).
  164. In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179, 1183 (N.D. Cal. 2009).
  165. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865,1870–71 (2018).
  166. Id.
  167. Id. at 1869.
  168. Memorandum Order Granting Plaintiffs’ Motion to Compel Discovery of Korea Fair Trade Commission Materials at 1–2, In re Air Cargo Shipping Services Antitrust Litigation, 1:06-md-01775 (E.D.N.Y. Jan. 6, 2011).
  169. In re TFT-LCD (Flat Panel) Antitrust Litig., No. 07-cv-01827, 2011 WL 13147214, at *1 (N.D. Cal. Apr. 26, 2011).
  170. See, e.g., Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party, United States v. Microsoft Corp., 138 S. Ct. 1186 (2018) (No. 17-2); Letter from European Commission in Response to Special Master’s December 22, 2010 Order, In re TFT-LCD (Flat Panel) Antitrust Litig., No. 3:07-md-01827 (Feb. 15, 2011) [hereinafter European Commission Letter]; In re Rubber Chems. Antitrust Litig., 486 F. Supp. 2d 1078, 1081 (N.D. Cal. 2007); Defendant’s Opposition to Plaintiffs’ Motion to Compel Statement of Objections at 1, In re Payment Card Interchange Fee & Merchant Disc. Antitrust Litig., 1:05-md-01720 (E.D.N.Y. Jan. 8, 2010).
  171. See e.g., In re Rubber Chems., 486 F. Supp. 2d at 1081–84; European Commission Letter, supra note 169, at 7–8 (citing several district court decisions). Interestingly, the European Court of Justice has allowed national courts to consider the discoverability of antitrust leniency agreements. See Case C-360/09, Pfleiderer AG v. Bundeskartellamt, 2011 E.C.R. I-5186, I-5199.
  172. See Wang, supra note 24, at 2149 (discussing other letters); Japan Fair Trade Commission Letter, In re TFT-LCD (Flat Panel) Antitrust Litigation, No. M: 07-1827 (Feb. 3, 2011).
  173. Japan Fair Trade Commission Letter at 3, In re TFT-LCD (Flat Panel) Antitrust Litig., No. 3:07-md-01827 (Feb. 3, 2011).
  174. Id.
  175. European Commission Letter, supra note 169, at 4.
  176. Id. at 5.
  177. Id. at 6.
  178. Id.
  179. Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party, United States v. Microsoft Corp., 138 S. Ct. 1186, 2–8 (2018) (No. 17-2).
  180. This partly confirms Noll’s point that “the new conflicts law privileges the regulatory preferences of actors operating across jurisdictional lines over the preferences of litigants seeking to enforce U.S. law.” Noll, Conflicts, supra note 37, at 65.
  181. See, e.g., In re Cathode Ray Tube (CRT) Antitrust Litig., No. C-07-5944, 2014 WL 5462496, at *4–7 (N.D. Cal. Oct. 23, 2014).
  182. Special Master’s Order Denying Motion of Direct Purchaser Class Plaintiffs to Compel Hitachi to Produce Foreign Regulatory Documents at 5-6, In Re TFT (Flat Panel) Antitrust Litigation, No. 3:07-md-01827 (N.D. Cal. Apr. 26, 2011).
  183. Kristen E. Eichensehr, Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. 289 (2016); Daniel Fahrenthold, Note, Respectful Consideration: Foreign Sovereign Amici in U.S. Courts, 119 Colum. L. Rev. 1597 (2019).
  184. Brief of Amicus Curiae Ministry of Commerce of the People’s Republic of China in Support of Respondents at 24–25, Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865 (2018) (No. 16-1220).
  185. Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party at 3, United States v. Microsoft Corp., 138 S. Ct. 1186 (2018) (No. 17-2).
  186. Brief for the Japan External Trade Organization as Amicus Curiae at 2, Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (1982) (No. 80-2070), 1982 WL 608724.
  187. See infra Section II.A.
  188. See Anu Bradford, Adam Chilton, Katerina Linos & Alexander Weaver, The Global Dominance of European Competition Law Over American Antitrust Law, 16 J. Empirical Legal Stud. 731, 731–32 (2019).
  189. Cf. Wang, supra note 24, at 2142–46 (noting tensions that arise when discovery requests in the United States adversely affect litigation abroad); Deborah Hensler et al., RAND Institute for Civil Justice, The Globalization of Mass Civil Litigation: Lessons from the Volkswagen “Clean Diesel” Case 58–59 (Feb. 2021) (manuscript) (documenting how American litigation impacted litigation in Chile).
  190. Pamela K. Bookman, The Unsung Virtues of Global Forum Shopping, 92 Notre Dame L. Rev. 579, 580 (2016).
  191. Id. at 580–81, 619.
  192. See Andrea Thomas, Germany Set to Allow Collective Lawsuits Following VW Scandal, Wall St. J. (May 9, 2018), https://www.wsj.com/articles/germany-set-to-allow-collective-lawsuits-following-vw-scandal-1525869967 [https://perma.cc/M7YM-YFPV].
  193. Id; see also Pamela K. Bookman & David L. Noll, Ad Hoc Procedure, 92 N.Y.U. L. Rev. 767, 797–804 (2017) (detailing Germany’s slow adoption of consumer-initiated redress legislation).
  194. I thank Amalia Kessler for this insight.
  195. See, e.g., In re Facebook, Inc. Sec. Litig., 405 F. Supp. 3d 809, 847 (N.D. Cal. 2019).
  196. In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 283 (E.D. Pa. 2016).
  197. Id. at 284–93.
  198. Id. at 306–07.
  199. Id. at 307.
  200. Id.
  201. Defendants’ Motion In Limine Number 13 at 2, In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278 (E.D. Pa. 2016) (No. 2:12-cv-07263) (internal citation omitted).
  202. Health Canada, Revised Guidance Document: Acetaminophen Labelling Standard 6 (2016).
  203. In re Tylenol, 181 F. Supp. 3d at 307–08.
  204. No. 3:16-md-2734, 2017 WL 4399198, at *10 (N.D. Fla. Sept. 29, 2017).
  205. Complaint at 2, In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-md-2734 (N.D. Fla. Dec. 2, 2016).
  206. Id. at 8 (internal quotation marks omitted).
  207. See id. at 2–3.
  208. Omnibus Order and Amended Case Management Schedule, In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-md-2734, 2017 WL 4399198, at *10 (N.D. Fla. Sept. 29, 2017).
  209. In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-md-2734, 2019 WL 7859557, at *3–4 (N.D. Fla. Dec. 6, 2019).
  210. See id. at *4.
  211. See, e.g., Mahaney ex rel. Est. of Kyle v. Novartis Pharm. Corp., 835 F. Supp. 2d 299, 318 (W.D. Ky. 2011) (holding that a plaintiff may introduce evidence of foreign warning labels for the purpose of showing that defendant had knowledge of side effects, but plaintiff may not introduce them to suggest that defendant violated FDA regulations).
  212. See, e.g., David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 Yale L.J. 616 (2013) [hereinafter Engstrom, Gatekeepers]; Zachary D. Clopton, Redundant Public-Private Enforcement, 69 Vand. L. Rev. 285 (2016) [hereinafter Clopton, Redundant].
  213. See Margaret H. Lemos & Max Minzner, For-Profit Public Enforcement, 127 Harv. L. Rev. 853, 862–63 (2014) (arguing that public and private litigation “increasingly work together” to fulfill a common function: “compensating victims”).
  214. Engstrom, Gatekeepers, supra note 211, at 630.
  215. See John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter Is Not Working, 42 Md. L. Rev. 215, 228 (1983); William B. Rubenstein, On What a “Private Attorney General” Is—And Why It Matters, 57 Vand. L. Rev. 2129, 2151 (2004).
  216. There are many cases that nudge the FDA to consider rulemaking. See, e.g., Peter Shapiro, All-Natural Class Action Suit in New York Federal Court Is Placed on Hold, Lewis Brisbois, https://lewisbrisbois.com/print/12131 [https://perma.cc/U4Y8-ZBUA] (last visited Apr. 18, 2021).
  217. See, e.g., In re Tylenol (Acetaminophen) Mktg., Sales Practs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 307 (E.D. Pa. 2016).
  218. In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1323 (S.D. Fla. 2010).
  219. Id. at 1330.
  220. Id. at 1351.
  221. There are important limits to the failsafe argument. Under Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), a piece of evidence cannot be admitted if it is going to be used to advance a fraud-on-the-FDA claim. See, e.g., Mahaney ex rel. Est. of Kyle v. Novartis Pharms. Corp., 835 F. Supp. 2d 299, 317 (W.D. Ky. 2011). Because the Supreme Court has disallowed fraud-on-the-FDA claims, litigants have to defend the use of foreign information on alternative grounds.
  222. In re Mex. Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 382–84 (S.D.N.Y. 2019).
  223. Brenner v. Procter & Gamble Co., No. SACV 16-1093, 2016 WL 8192946, at *1 (C.D. Cal. Oct. 20, 2016).
  224. Rotondo v. Amylin Pharm., Inc., No. B275314, 2018 WL 5800780, at *1 (Cal. Ct. App. Nov. 6, 2018).
  225. Id. at *4.
  226. See Bradford, Brussels Effect Article, supra note 53, at 14–16.
  227. I thank Doug Melamed for this insight.
  228. Cf. Olatunde C.A. Johnson, Beyond the Private Attorney General: Equality Directives in American Law, 87 N.Y.U. L. Rev. 1339, 1359–62 (2012) (discussing problems that plague public enforcement); Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. Ill. L. Rev. 183, 205 (2003) (noting that agencies like the EEOC can underenforce statutory rights).
  229. Michael X. Imbroscio & Paul W. Schmidt, Border Control: Keeping Foreign Regulatory Evidence Out of U.S. Pharmaceutical Litigation, Covington & Burling (2007), https://www.cov.com/-/media/files/corporate/publications/2007/01/border_control_keeping_‌foreign_‌regulatory_evidence_out_of_the_us_pharmaceuti.pdf [https://perma.cc/SLG9-NXRG].
  230. Id.
  231. Andy Pasztor, Congressional Report Faults Boeing on MAX Design, FAA for Lax Oversight, Wall St. J. (Mar. 6, 2020) https://www.wsj.com/articles/‌congressional-report-says-max-crashes-stemmed-from-boeings-design-failures-and-lax-faa-oversight-11583519145 [https://perma.cc/3P8Z-HBVV].
  232. Andy Pasztor & Andrew Tangel, European Air Regulators Break From FAA on 737 MAX Timeline, Wall St. J. (Oct. 21, 2019) https://www.wsj.com/‌articles/european-air-regulators-break-from-faa-on-737-max-timeline-11571692941 [https://perma.cc/D8Y3-2S82].
  233. This may also be an outgrowth of the Brussels Effect. See Bradford, Brussels Effect Article, supra note 53, at 46–47 (hypothesizing that EU regulators may be motivated by a desire to “establish[] standards for universal conduct”). To be sure, the EUASA could itself be captured by Airbus.
  234. See Kevin M. Clermont, Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law, 103 Cornell L. Rev. 243, 245–46 (2018).
  235. Volokh, supra note 39, at 220–27; Jackson, supra note 37, at 109–12.
  236. John O. McGinnis, Medellín and the Future of International Delegation, 118 Yale L.J. 1712, 1715–17 (2009) [hereinafter McGinnis, Medellín]. But see Alan O. Sykes, Transnational Forum Shopping as a Trade and Investment Issue, 37 J. Legal Stud. 339, 340 (2008) (arguing that American courts should adjudicate the disputes of foreigners only in certain cases).
  237. John O. McGinnis, Foreign to Our Constitution, 100 Nw. U. L. Rev. 303, 306–09 (2006).
  238. Even more broadly, literature on the virtues of “many minds” argues that increasing the number of eyes on a problem improves solutions to a problem. See Eric A. Posner & Cass R. Sunstein, The Law of Other States, 59 Stan. L. Rev. 131, 155 (2006).
  239. Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev.
    265, 285–86

    (2019) (citing sources).

  240. See infra Section II.B.
  241. Id.
  242. Bulman-Pozen, supra note 238, at 285–87.
  243. McGinnis, Medellín, supra note 235, at 1738–39.
  244. See, e.g., In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1330 (S.D. Fla. 2010).
  245. This is especially so because of the many procedural barriers that prevent foreign litigants from suing in American courts. See Bookman, supra note 13, at 1090–99.
  246. See Sean Farhang, Legislating for Litigation: Delegation, Public Policy, and Democracy, 106 Calif. L. Rev. 1529 (2018).
  247. Id. at 1534.
  248. See Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, § 27(a), 109 Stat. 737, (1995).
  249. Cf. Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 3 (1992) (setting forth a theory of “epistemic communities” among multinational bodies, focused on the sharing of knowledge for international coordination).
  250. Yet, since most scholars and courts agree that the objections are weak, debates focus on how to determine the content of foreign law. See, e.g., Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 628–31 (7th Cir. 2010). To be sure, U.S. courts rarely cite foreign law. See, e.g., David Zaring, The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. Empirical Legal Stud. 297, 297 (2006).
  251. See, e.g., David L. Noll, MDL as Public Administration, 118 Mich. L. Rev. 403 (2019); Richard A. Nagareda, Mass Torts in a World of Settlement 57, 60, 70 (2007).
  252. See Andrew D. Bradt & D. Theodore Rave, The Information-Forcing Role of the Judge in Multidistrict Litigation, 105 Calif. L. Rev. 1259, 1262–64 (2017).
  253. See, e.g., Transcript of Proceedings at 4–6, In re Nat’l Prescription Opiate Litig., No. 1:17-md-02804 (N.D. Ohio argued Jan. 9, 2018) (imploring the parties to reach a solution that would do something to “abate [the national opioid] crisis”).
  254. Brian T. Fitzpatrick, The Conservative Case for Class Actions 16 (2019).
  255. For a thorough discussion of MDL settlements, see D. Theodore Rave, Closure Provisions in MDL Settlements, 85 Fordham L. Rev. 2175 (2017). For a discussion of class action settlements, see Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical Legal Stud. 811, 819 (2010) (documenting that 68% of federal settlements from 2006 to 2007 were settlements of class actions). See also Andrew D. Bradt, Something Less and Something More: MDL’s Roots as a Class Action Alternative, 165 U. Pa. L. Rev. 1711 (2017) (discussing the relationship between the two devices).
  256. See supra Subsection II.A.1.
  257. See, e.g., In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 566 (D. Ariz. 2016).
  258. Daniel S. Wittenberg, Multidistrict Litigation: Dominating the Federal Docket, Am. Bar Ass’n (Feb. 19, 2020), https://www.americanbar.org/‌groups/litigation/publications/litigation-news/business-litigation/multidistrict-litigation-dominating-federal-docket/ [https://perma.cc/7QZD-RKRC].
  259. Bradford, Brussels Effect Article, supra note 53, at 16–17.
  260. See Subsection I.C.1.
  261. See Adam S. Zimmerman, The Global Convergence of Global Settlements, 65 U. Kan. L. Rev. 1053, 1057–58 (2017).
  262. Noll, Conflicts, supra note 37, at 44–47 (discussing manners by which “U.S. regulatory systems are disabled in favor of regulation by other legal systems”).
  263. Curtis A. Bradley, International Law in the U.S. Legal System 75 (2013).
  264. Galbraith & Zaring, Soft Law, supra note 46, at 737 (citing Exec. Order No. 13,609, 77 Fed. Reg. 26, 413 (May 1, 2012)).
  265. Id. at 737–39.
  266. Press Release, U.S. and Foreign Antitrust Officials Launch International Competition Network, FTC (Oct. 25, 2001) https://www.ftc.gov/news-events/press-releases/2001/10/us-and-foreign-antitrust-officials-launch-international [https://perma.cc/B9CX-8MTL].
  267. See, e.g., Slaughter, supra note 46; Lawrence L.C. Lee, The Basle Accords as Soft Law: Strengthening International Banking Supervision, 39 Va. J. Int’l L. 1 (1998).
  268. Galbraith & Zaring, Soft Law, supra note 46, at 739–40.
  269. Id. at 740.
  270. Id.
  271. Id.
  272. Id. at 780.
  273. This resembles a literature on unusual transnational enforcement. See, e.g., Zachary D. Clopton, Diagonal Public Enforcement, 70 Stan. L. Rev. 1077, 1080–81 (2018); Anne-Marie Slaughter, A New World Order 3, 14 (2005).
  274. See, e.g., Robert A. Kagan, Adversarial Legalism: The American Way of Law 3 (2001); Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010); William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. Legal Stud. 1 (1975).
  275. See Diego A. Zambrano, Discovery as Regulation, 119 Mich. L. Rev. 71, 75 (2020) [hereinafter Zambrano, Discovery].
  276. Id. at 77.
  277. See Clopton, Redundant, supra note 211, at 297–300.
  278. Plaintiff’s Motion Addressing Production of Foreign Regulatory Files at 1–2, In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-md-02657 (D. Mass. July 27, 2017).
  279. Memorandum and Order on Defendant’s Motion for Summary Judgment Based on Federal Preemption at 18, In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-md-02657 (D. Mass. Feb. 5, 2019).
  280. Letter from F. Dennis Saylor, IV, C.J. D. Mass., to Stacey Cline Amin, Chief Counsel, Food and Drug Administration, In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-md-02657 (Dec. 13, 2019).
  281. Letter from Craig Wildfang, Robins, Kaplan, Miller, & Ciresi LLP, to James Orenstein, Mag. J. E.D.N.Y., In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 1:05-md-01720 (Jan. 5, 2010).
  282. In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-md-1720, 2010 WL 3420517, at *9–10, (E.D.N.Y. Aug. 27, 2010).
  283. Id. at *1, *9.
  284. To be sure, it may be unfair to call “harmonization” what in fact seem like instances of foreign frustration of American antitrust litigation. But I’m referring here to a kind of rough harmonization that promotes convergence.
  285. Brian T. Fitzpatrick, Do Class Actions Deter Wrongdoing?, in The Class Action Effect 197 (Catherine Piché ed., 2018).
  286. Brief of Antitrust Scholars as Amici Curiae in Support of Respondents at 12, Apple Inc. v. Pepper, 139 S. Ct. 1514 (2018) (No. 17-204).
  287. See Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System, 26 J. Legal Stud. 575, 575 (1997); Steven Shavell, The Level of Litigation: Private Versus Social Optimality of Suit and of Settlement, 19 Int’l Rev. L. & Econ. 99, 99 (1999).
  288. Cf. George A. Bermann, Regulatory Cooperation with Counterpart Agencies Abroad: The FAA’s Aircraft Certification Experience, 24 Law & Pol’y Int’l Bus. 669 (1993) (arguing for the superiority of transnational cooperation in aeronautical regulation).
  289. See Marisam, supra note 39, at 1915–17.
  290. I thank Anu Bradford for this insight.
  291. Cf. Julian G. Ku, International Delegations and the New World Court Order, 81 Wash. L. Rev. 1, 5–8 (2006) (arguing that allowing U.S. courts to recognize international tribunal judgments would be constitutionally problematic, since that authority lies with the other two branches).
  292. Galbraith & Zaring, Soft Law, supra note 46, at 767–68.
  293. Ingrid Wuerth, The Future of the Federal Common Law of Foreign Relations, 106 Geo. L.J. 1825, 1830–33 (2018).
  294. See Timothy Meyer & Ganesh Sitaraman, Trade and the Separation of Powers, 107 Calif. L. Rev. 583, 662–66 (2019).
  295. One may also worry that litigation-led harmonization limits the ability of regulated entities to adjust compliance to each country.
  296. Bradford, Brussels Effect Article, supra note 53, at 64.
  297. Comm’n Eur. Cmties., Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: A Single Market for Citizens 7 (Feb. 21, 2007).
  298. Bradford, Brussels Effect Book, supra note 40, at 131–32.
  299. Bradford, Brussels Effect Article, supra note 53, at 29–30.
  300. I thank Anu Bradford for some of this language.
  301. Bradford, Brussels Effect Article, supra note 53, at 4.
  302. 2 Max Huffman & Andre Fiebig, Antitrust and American Business Abroad § 15:24 (4th ed. 2020).
  303. See Bradford, Brussels Effect Book, supra note 40, at 251.
  304. David L. Noll, Administrative Sabotage, 120 Mich. L. Rev. (forthcoming 2021) (manuscript at 4) (on file with author).
  305. See Section I.A.
  306. See, e.g., In re Incretin-Based Therapies Prods. Liab. Litig., 721 F. App’x 580, 583 (9th Cir. 2017).
  307. See Zambrano, Comity, supra note 63, at 206–07.
  308. Manual for Complex Litigation, Fourth § 11.494 (2004).
  309. Zambrano, Comity, supra note 63, at 164–67.
  310. See, e.g., In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 551–53 (S.D.N.Y. 2004).
  311. See, e.g., In re Viagra Prods. Liab. Litig., 658 F. Supp. 2d 950, 965–66 (D. Minn. 2009). But see In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 553 (S.D.N.Y. 2004) (“The Court finds no legal basis upon which now to rule . . . that testimony regarding foreign regulatory actions is irrelevant as a matter of law in a United States products liability case governed by American law.”).
  312. Mahaney ex rel. Est. of Kyle v. Novartis Pharm., 835 F. Supp. 2d 299, 318 (W.D. Ky. 2011).
  313. Schedin v. Ortho-McNeil-Janssen Pharms., 808 F. Supp. 2d 1125, 1138 (D. Minn. 2011).
  314. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 2017 WL 4168410, at *3 (E.D. La. 2017); see, e.g., In re Seroquel Prods. Liab. Litig., 601 F. Supp. 2d 1313, 1318 (M.D. Fla. 2009); In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1336 (S.D. Fla. 2010).
  315. Cf. Maggie Gardner, Parochial Procedure, 69 Stan. L. Rev
    .

    941, 958–67 (2017) (discussing how judges approach foreign cases).

  316. See, e.g., Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897, 921 (N.D. Cal. 2019).
  317. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557–58 (2007).
  318. Alexis Kramer, Securities Fraud Claims Get Boost From EU Data Privacy Rules, Bloomberg L. (Feb. 1, 2019), https://www.bloomberglaw.com/bloomberglawnews/tech-and-telecom-law/XFD6V9SC000000?bna_news_filter=tech-and-telecom-law#jcite [https://perma.cc/W5QW-Z36F].
  319. See e.g., In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 108 (D. Mass. 2019).
  320. See In re Roundup Prods. Liab. Litig., 385 F. Supp. 3d 1042, 1047 (N.D. Cal. 2019).
  321. See supra Section I.C.
  322. See In re Rubber Chems. Antitrust Litig., 486 F. Supp. 2d 1078, 1082 (N.D. Cal. 2007).
  323. See Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1868 (2018).
  324. See, e.g., In re Rubber Chemicals, 486 F. Supp. 2d at 1081–84; European Commission Letter, supra note 169, at 8 (citing several district court decisions).
  325. Animal Sci. Prods., 138 S. Ct. at 1875 (limiting the Court’s holding to foreign letters that seek to aid in interpreting foreign law).
  326. Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 Geo. Wash. L. Rev. 449, 477 (2008) [hereinafter Sharkey, Products Liability Preemption]; Sharkey, Opioid, supra note 86, at 686. In the international context, the closest work comes from Jenny S. Martinez, Towards an International Judicial System, 56 Stan. L. Rev. 429, 434 (2003) (calling for more transnational communications among judiciaries).
  327. Sharkey, Products Liability Preemption, supra note 325, at 485.
  328. See Engstrom, Gatekeepers, supra note 211, at 657.
  329. David Zaring, Sovereignty Mismatch and the New Administrative Law, 91 Wash. U. L. Rev. 59, 74–75 (2013).
  330. Stanley M. Gorinson & Robert Pambianco, U.S. and European Merger Policies Move Towards Convergence, Wash. Legal Found. (Aug. 9, 2002), https://www.wlf.org/‌2002/08/09/publishing/u-s-and-european-merger-policies-move-towards-convergence/ [https://perma.cc/MJ2C-J255].
  331. See Robert V. Percival, The EPA as a Catalyst for the Development of Global Environmental Law, 70 Case W. Res. L. Rsrv. 1151, 1152–85 (2020).
  332. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (“[I]n foreign affairs the President has a degree of independent authority to act.”).
  333. Galbraith & Zaring, Soft Law, supra note 46, at 768.
  334. Id. at 770–73.
  335. Id. at 771.
  336. See Engstrom, Gatekeepers, supra note 211, at 674–80.
  337. Monsanto Company’s Notice of Motion for Scheduling Order Regarding General Causation and Memorandum of Points and Authorities in Support at 6, Hardeman v. Monsanto Co., (N.D. Cal. 2016) (No. 3:16-cv-00525); Transcript of Proceedings of the Official Electronic Sound Recording 2:14 PM–3:01 PM at 21–22, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. argued May 3, 2016) (No. 3:16-cv-00525).
  338. Sharkey, Products Liability Preemption, supra note 325, at 471–80 (highlighting many examples of agency amicus briefs).
  339. See Diego A. Zambrano, Foreign Dictators in U.S. Court, 89 U. Chi. L. Rev. (forthcoming) (manuscript at 31) (on file with author).
  340. Engstrom, Agency Gatekeepers, supra note 211, at 652.
  341. Id. at 648.
  342. Sharkey, Opioid Litigation, supra note 86, at 670–71.
  343. Engstrom, Gatekeepers, supra note 211, at 644.
  344. Id. at 649–50.
  345. Id. at 649.
  346. In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804 (N.D. Ohio Apr. 11, 2018) (order granting discovery request).
  347. See Catherine M. Sharkey, CAFA Settlement Notice Provision: Optimal Regulatory Policy?, 156 U. Pa. L. Rev. 1971, 1972 (2008).
  348. Id.
  349. The Class Action Fairness Act of 2005, S. Rep. No. 109-14, at 32 (2005).
  350. Engstrom, Gatekeepers, supra note 211, at 687.
  351. Sharkey, Opioid Litigation, supra note 86, at 686.
  352. Engstrom, Gatekeepers, supra note 211, at 646.
  353. Sharkey, Opioid Litigation, supra note 86, at 686.
  354. This is not necessarily a representative sample of MDL cases but just all the discovery or evidentiary decisions I could find on Bloomberg Law/Westlaw using search terms related to foreign regulatory evidence.
  355. This is not necessarily a representative sample of MDL cases but just all the discovery or evidentiary decisions I could find on Bloomberg Law/Westlaw using search terms related to foreign regulatory evidence.

Propertizing Fair Use

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. While the Court ruled that Google’s use of Oracle’s Java API packages was fair, the ruling does not protect the numerous parties that developed Java applications for the Android operating system; it shelters only Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted works, and it always leaves follow-on users in the cold. Authors, musicians, documentary filmmakers and media outlets who win fair use cases cannot freely market their works that incorporate fair use content, since their victories do not carry over to other users. Fair use under extant law is a very limited privilege.

This Article proposes a far-reaching reform not only of copyright law as applied to software, but of the fair use doctrine itself. Our proposal consists of three interlocking elements. First, we call for the introduction of a new in rem conception of fair use, under which a fair use ruling would serve as a property remedy that shelters all subsequent users of works who fairly incorporate preexisting materials. Under this new conception, a finding of fair use would run with that new work, like an easement to all other distributors, broadcasters, publishers, performers and others who use it. The introduction of this new type of in rem fair use would result in the division of fair use into two conceptions—one in rem and one in personam—that would co-exist alongside one another. Second, we would grant judges discretion to decide which fair use conception, if any, should be granted in any particular case. Judges would be able to employ the traditional in personam rule, allowing fair use to avail only the specific defendant before it, or they could adopt an in rem fair use ruling, creating a property entitlement that runs with the work embodying the fairly incorporated content. Third, we propose two default rules to assist judges in making their decisions. Specifically, we propose that the default setting of fair use would depend on the type of use being examined. Where the claimed fair use consists of incorporating the protected copyrighted material in a new copyrighted work—such as the Android operating system—the default fair use would be of the in rem variety. However, in all other cases of claimed fair use, the traditional, familiar in personam conception would be the default setting. This approach would create clarity about the status of follow-on fair uses, but permit judges to tailor their rulings case by case.

Implementation of our proposal would yield several significant improvements to the current fair use doctrine. It would permit judges to take account of the potential for future uses of the fair use work, without handcuffing them to a single approach. Moreover, it would increase certainty with respect to the use of copyrighted work by lowering transaction and litigation costs for creators of new works. Finally, the version of fair use we advocate would enhance the use of copyrighted content.

Introduction

Fair use is one of the most celebrated doctrines in the law.1.See generally Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600, 1601 (1982) (unearthing the “structural and economic” considerations in fair use); Wendy J. Gordon & Daniel Bahls, The Public’s Right to Fair Use: Amending Section 107 to Avoid the “Fared Use” Fallacy, 2007 Utah L. Rev. 619, 620 (arguing for the continued use of fair use, in light of its critics); William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1661 (1988) (criticizing fair use and suggesting reforms); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Penn. L. Rev. 549 (2008) (measuring outcomes of fair use cases historically); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009) (suggesting a typology of fair use cases based on their policy implications); Pamela Samuelson, Possible Futures of Fair Use, 90 Wash. L. Rev. 815 (2015) (predicting that fair use will survive in spite of critiques and continue to evolve); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004) (separating out fair use claims from free speech claims); Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev. 1087 (2007) (proposing reforms to fair use in light of its alleged abuses); Matthew Sag, Predicting Fair Use, 73 Ohio St. L.J. 47 (2011) (using empirical methodology to argue that fair use outcomes are more consistent and predictable than they might otherwise be assumed); Jeanne C. Fromer, Market Effects Bearing on Fair Use, 90 Wash. L. Rev. 615 (2015) (exploring the harms and benefits of fair use on markets); Abraham Bell & Gideon Parchomovsky, The Dual-Grant Theory of Fair Use, 83 U. Chi. L. Rev. 1051, 1053 (2016) [hereinafter The Dual-Grant Theory of Fair Use] (“Fair use is a keystone of the law of copyright . . . .”); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990) (“[T]he function of fair use [is] integral to copyright’s objectives . . . .”).Show More It is widely seen as a key component of the law of copyright, balancing the exclusive rights of copyright owners with the public interest in the use and enjoyment of works after their creation.2.Stephen McIntyre, Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship, 48 Gonz. L. Rev. 61, 64 (2012) (“The ‘fair use’ doctrine . . . balances copyright holders’ rights against the public’s interests in free speech and the dissemination of knowledge, information, and culture.”); Niva Elkin-Koren & Orit Fischman-Afori, Rulifying Fair Use, 59 Ariz. L. Rev. 161, 199 (2017) (“Fair use was first crafted as a legal standard . . . intending to allow courts to reconcile the copyright of authors with the public interest.”).Show More It is not only the most significant and most capacious defense against copyright infringement;3.See The Dual-Grant Theory of Fair Use, supra note 1, at 1053 (“The fair use defense to copyright infringement is perhaps the most frequently raised and litigated defense in the law of intellectual property.”); Carroll, supra note 1, at 1089 (“Fair use is the first and most general of these limitations.”). Unlike other defenses that apply to infringements of specific rights, such as reproduction, public performance, and public display, fair use offers protection against all violations of all rights.Show More it is also, according to the Supreme Court, an indispensable part of the constitutional balance between freedom of speech and protected copyrighted expression.4.Golan v. Holder, 565 U.S. 302, 328 (2012); Eldredv.Ashcroft, 537 U.S. 186, 219–20 (2003) (describing fair use as a “built-in First Amendment accommodation[]”); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (“In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”).Show More Unsurprisingly, the fair use doctrine has attracted considerable academic attention and has been the subject of discussion and debate.5.See generally sources supra note 1 (delineating several aspects of fair use discussion).Show More Yet a critical aspect of the doctrine, which goes to the core of the fair use doctrine, has not been analyzed to date.

There is a sharp asymmetry between the design of the exclusive rights granted to authors under the Copyright Act and the design of the fair use defense intended to protect user interests. The asymmetry is found in copyright’s protection of works, as opposed to fair use’s protection of uses. Copyright protects a list of rights in a particular work allocated to the owner of the copyright,6.Compare 17 U.S.C. § 106 (2018) (“[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . .”), with 17 U.S.C. § 107 (2018) (“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.”).Show More whereas the fair use defense only pertains to a specific use by a particular user.7.Julie E. Cohen, The Place of the User in Copyright Law, 74 Fordham L. Rev. 347, 362 (2005) (“In most fair use cases, the identity of the user is known, the use has already been made, and the only question is whether or not it passes muster.”).Show More Put differently, fair use is an agent-specific defense that is analyzed on a use-by-use basis. The fair use defense does not and cannot offer prophylactic immunity for using the work; it does not carry over to similar uses by the same user or identical uses by other users. As a result, the doctrine of fair use is far narrower than is generally appreciated.

To see why this is a problem, consider the Supreme Court’s recent ruling in Google LLC v. Oracle America, Inc.8.Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021). For an important analysis of the Oracle v. Google litigation prior to the Supreme Court’s ruling, see generally Peter S. Menell, API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess, 31 Berkeley Tech. L.J. 1515 (2016).Show More The case concerned Google’s copying of thirty-seven packages, comprising roughly 11,500 lines of code, in Java’s Application Programming Interface for use in the programs used by Android phones.9.Oracle, 141 S. Ct. at 1204.Show More (Application Programming Interfaces, or APIs, can be defined for simplicity’s sake as code orders that enable interfaces between programs.)10 10.SeeUnited States v. Microsoft Corp, 253 F.3d 34, 53 (D.C. Cir. 2001) (“Operating systems also function as platforms for software applications. They do this by ‘exposing’ . . . routines or protocols that perform certain widely-used functions. These are known as Application Programming Interfaces, or ‘APIs.’”).Show More Oracle claimed that Google violated its copyright in the API and the Java commands contained therein.11 11.Oracle, 141 S. Ct. at 1194.Show More In its defense, Google claimed that the commands were insufficiently original to warrant copyright protection,12 12.See id.Show More and that even if the commands were sufficiently original, other doctrines blocked copyright protection.13 13.See id.Show More The trial court held for Google, finding that the commands were insufficiently original and generally outside of copyright protection.14 14.Id.Show More However, the Federal Circuit Court of Appeals reversed, determining that Java’s API is copyrighted, and remanded the case to the trial court for examination of Google’s fair use defense.15 15.Id. at 1194–95.Show More Back in the trial court, Google claimed that its use of the Java commands in the programming language for Android phones was a fair use,16 16.Id. at 1195.Show More and again Google won at the trial level.17 17.Id.Show More Once more, the Federal Circuit Court of Appeals reversed the jury decision and ordered the trial court to proceed to the remedies phase.18 18.Id.Show More Before the trial court could take up the question of remedies, the Supreme Court granted certiorari and reversed the Federal Circuit Court of Appeal’s decision. The Supreme Court held that Google’s copying of the API was a protected fair use, while assuming arguendo that the API was copyrightable.19 19.Id. at 1186.Show More

In ruling that Google’s copying of thirty-seven Java packages from Oracle’s API was a fair use, the Court cleared the way for Google to continue using the copied Oracle software. However, the Court did not consider whether programmers for Android phones could use Google’s software, even though such programmers would thereby necessarily copy, in part, Oracle’s software.20 20.SeeHorace G. Ball, The Law of Copyright and Literary Property 260 (1944) (“Fair use is technically an infringement of copyright, but is allowed by law on the ground that the appropriation is reasonable and customary.”); Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135, 141 (2011) (“Fair use now represents an excuse to justify infringement, or in other words, an exception to the norm of speech suppression through copyright.”).Show More Importantly, as the Court noted, all fair use rulings are case by case.21 21.Oracle, 141 S. Ct. at 1198.Show More Other companies that duplicated part of the thirty-seven packages that Google had copied in order to program for the Android phone could not be sure that their use of the Java commands would be considered a fair use. The fair use approved by the Supreme Court is Google’s use, not that of any other user. Indeed, even Google could not be sure that any future Google use of Oracle’s API would be permitted. Google can only be confident that the particular uses considered in the case were fair uses; any other use of the Java commands in a different program or use of different commands in the Java API in the same program would potentially be vulnerable to an infringement suit.

A similar problem arises in other contexts, from music to literature. 2 Live Crew famously won a Supreme Court victory in Campbell v. Acuff-Rose Music, Inc. on a claim of fair use, allowing it to continue to use portions of the melody of Roy Orbison’s song “Oh Pretty Woman” in its parody “Pretty Woman.”22 22.510 U.S. 569, 571–72 (1994).Show More However, a different user who wishes to use 2 Live Crew’s song in another context—for example, by incorporating it as background music in a film or performing the song at a high school dance—is barred from doing so, even if she were to secure permission from 2 Live Crew.23 23.The industry practice for obtaining licenses for musical performance is sufficiently well-developed and complex that the would-be user would likely be able to obtain the relevant licenses without direct communication with either Campbell (who owns the rights to 2 Live Crew’s song) or Acuff-Rose (who owns the rights to Orbison’s). For purposes of our example, we ignore the industry practice.Show More The Supreme Court’s ruling that 2 Live Crew’s use is fair does not mean that the subsequent use would be deemed fair too. Similarly, if a screenwriter wanted to produce a movie based on Alice Randall’s book, The Wind Done Gone, and she properly purchased rights from Alice Randall, she would not be readily able to embark upon this task. Although Alice Randall’s use of Margaret Mitchell’s Gone with the Wind was ruled to be fair,24 24.See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concluding that “a viable fair use defense is available” for The Wind Done Gone’s potential infringement of Suntrust’s copyright in Gone with the Wind).Show More every subsequent user of her work would be exposed to an infringement claim, unless she secured a license from the owners of Gone with the Wind who, as one may recall, refused to license Alice Randall’s use. Fair use findings are in personam; they only pertain to a specific user. Copyright protection, by contrast, is in rem; it avails against the rest of the world.25 25.SeeAbraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1032 (2008)(“[P]roperty rights, as defined by the government, are rights in rem, which avail against the world . . . .”);Guy Pessach, Toward A New Jurisprudence of Copyright Exemptions, 55 Intell. Prop. L. Rev. 287, 291 (2015) (“Copyright owners’ entitlements are in rem exclusive property rights . . . owners have the right to exclude the rest of the world from utilizing their copyrighted works for uses that fall within their bundle of exclusive uses.”).Show More This creates a vast amount of uncertainty.

In this Article, we propose a dramatic reformation of the fair use doctrine, consisting of three complementary steps. First, we introduce a new conception of fair use, under which fair use could constitute an in rem, property remedy. This new conception of fair use would supplement, rather than supplant, the existing fair use doctrine. Under the new in rem property conception, a fair use finding would assist not only the particular defendant who raised the fair use defense but also all subsequent users of a work that had been found to fairly incorporate copyright content. Thus, the in rem version of fair use would take on the form of a property incident that benefits all future users, and it would therefore enhance the marketability of follow-on works employing the fair use.

Second, we would grant courts the power to decide which conception of fair use, if any, to adopt in each case. Upon a finding of fair use, the judge could adopt either the traditional in personam version or our new in rem version of fair use. Judges would not be required to adopt the in rem version of fair use in every case. In appropriate circumstances, the judge could stick to the traditional approach to fair use, limiting it to the specific user and the specific use. The upshot of our proposal would be a legal menu with three options: denying fair use, finding an in personam fair use, or finding an in rem fair use.

Third, we propose a set of default rules for all fair use cases. Where judges choose not to specify whether their finding of fair use is of the in personam or in rem variety, we propose that default rules make that decision. However, the default setting of fair use would depend on the type of use being examined. Specifically, where the claimed fair use consists of incorporating the protected copyrighted material in a new copyrighted work—such as the Android operating system, or the “Pretty Woman” song—the default fair use would be of the in rem variety. In such cases, if the judge failed to specify otherwise, future users of the fair use follow-on work could utilize that work without having to relitigate the issue of infringement with the owner of the original copyrighted work. However, in all other cases of claimed fair use, the traditional, familiar in personam conception of fair use would be the default setting. This set of default rules would create clarity about the status of follow-on fair uses, but permit judges to tailor their rulings case by case.

We propose that the result of a successful invocation of an in rem fair use defense should create effects like those in the world of property. Under our suggested interpretation, where the judge chooses the in rem variety of fair use, a fair use ruling in favor of any particular user would continue to run with the work for the benefit of subsequent users with respect to the relevant content covered by the ruling. Specifically, any unlicensed incorporation of copyrighted material that was ruled a fair use would be seen as creating a permanent copyright defense that runs with the work, akin to a property easement. Were a court to rule that a particular user made fair use of a preexisting work, subsequent users of the follow-on work that was found to fairly use preexisting material would also be protected by the ruling. These subsequent users could utilize the preexisting material in the follow-on work with assurance that their use too would be deemed fair. For example, if Google’s use of Oracle’s Java APIs were not merely a fair use but an in rem fair use, not just Google but every programmer for Android phones who uses Google’s Android system will be sheltered from liability, even though Android incorporates 11,500 lines of code from Oracle’s API.26 26.Perhaps due to the litigation, Google ultimately abandoned use of Oracle’s Java API, and later versions of Android did not involve any copying of Oracle’s copyrighted work. Oracle, 141 S. Ct. at 1191. Our comments relate to early versions of Android that still incorporated Oracle’s work. An early ruling in favor of in rem fair use for Google might have left parts of Oracle’s API in the Android program.Show More

Our proposal has three significant advantages relative to extant fair use doctrine. First, our proposal would increase certainty with respect to the use of copyrighted work. Currently, a fair use finding only helps the named defendants in the case. It does not pertain to other users who wish to make the same use of the copyrighted work. Under current law, other users either have to take their chances in court or negotiate a license from the owner.27 27.See James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 890 (2007) (stating that since the fair use doctrine is ambiguous and the cost of losing an infringement case is prohibitively high, “even a risk-neutral actor with a good fair use claim would choose to secure a license rather than take the small risk of incurring a severe penalty”).Show More The adoption of our proposal would allow judges in fair use cases to put other potential users on solid ground by allowing them to engage in the same use that was ruled fair. At the same time, our approach would permit tailoring remedies to the needs of the fair use. Judges could take account of the potential for future uses of the fair use work, and deny future in rem employment of a fair use remedy, when appropriate. The default settings of fair use would create clarity about the meaning of fair use decisions in any particular case where the judge chose not to elaborate.

Second, our proposal would potentially lower transaction and litigation costs for creators of new works.28 28.For discussion, see infraSection I.B.Show More As we explained, current doctrine requires users of works that fairly incorporate materials from preexisting works to negotiate licenses from both the original owner and the fair user or plead their own new fair use in court. Both options are costly. Our proposal potentially alleviates this burden, conserving judicial resources while lowering costs for the parties themselves.

Third, and finally, our proposal would increase the productive use of copyrighted content. The sheltering principle would enable multiple downstream users to create new works that incorporate past works that were found by courts to make fair uses of older works.

The remainder of the Article unfolds in four parts. In Part I, we explain the shortcomings of extant fair use doctrine, focusing on the inherent limitations arising from fair use’s understanding as a personal, use-specific defense to copyright infringement. In particular, we discuss the costs that current fair use jurisprudence imposes on follow-on creators. In Part II, we turn to the world of property, where one finds such doctrines as market overt and the law of easements, which promote the marketability of rights and give use rights an in rem character. In Part III, we draw on our discussion of property law to call for the introduction of a brand-new conception of fair use that would operate as a property incident, in the sense that it would benefit all subsequent users of a work that obtained a fair use status. Finally, in Part IV, we provide an important context for our amended understanding of fair use by showing that other parts of the law of copyright that struggle with similar problems have employed mechanisms that bear a great deal of resemblance to our proposal.

 

  1. * Professor, Bar Ilan University Faculty of Law and University of San Diego School of Law. Visiting Fellow, Harvard Law School Project on the Foundations of Private Law.

  2. ** Robert G. Fuller Jr. Professor of Law at the University of Pennsylvania School of Law and the Edward Silver Professor at the Hebrew University of Jerusalem. Faculty of Law. The authors are grateful to David Abrams, Shyam Balganesh, Lital Helman, Neil Netanel, Lydia Loren, Jennifer Rothman, Guy Rub, Christopher Yoo, Eyal Zamir and participants at workshops and conferences at the University of Pennsylvania Carey School of Law and Stanford Law School for invaluable comments and criticisms. Isabel Redleaf and Ziqian Tao provided excellent research assistance.

  3. See generally Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600, 1601 (1982) (unearthing the “structural and economic” considerations in fair use); Wendy J. Gordon & Daniel Bahls, The Public’s Right to Fair Use: Amending Section 107 to Avoid the “Fared Use” Fallacy, 2007 Utah L. Rev. 619, 620 (arguing for the continued use of fair use, in light of its critics); William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1661 (1988) (criticizing fair use and suggesting reforms); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Penn. L. Rev. 549 (2008) (measuring outcomes of fair use cases historically); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009) (suggesting a typology of fair use cases based on their policy implications); Pamela Samuelson, Possible Futures of Fair Use, 90 Wash. L. Rev. 815 (2015) (predicting that fair use will survive in spite of critiques and continue to evolve); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004) (separating out fair use claims from free speech claims); Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev. 1087 (2007) (proposing reforms to fair use in light of its alleged abuses); Matthew Sag, Predicting Fair Use, 73 Ohio St. L.J. 47 (2011) (using empirical methodology to argue that fair use outcomes are more consistent and predictable than they might otherwise be assumed); Jeanne C. Fromer, Market Effects Bearing on Fair Use, 90 Wash. L. Rev. 615 (2015) (exploring the harms and benefits of fair use on markets); Abraham Bell & Gideon Parchomovsky, The Dual-Grant Theory of Fair Use, 83 U. Chi. L. Rev. 1051, 1053 (2016) [hereinafter The Dual-Grant Theory of Fair Use] (“Fair use is a keystone of the law of copyright . . . .”); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990) (“[T]he function of fair use [is] integral to copyright’s objectives . . . .”).

  4. Stephen McIntyre, Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship, 48 Gonz. L. Rev. 61, 64 (2012) (“The ‘fair use’ doctrine . . . balances copyright holders’ rights against the public’s interests in free speech and the dissemination of knowledge, information, and culture.”); Niva Elkin-Koren & Orit Fischman-Afori, Rulifying Fair Use, 59 Ariz. L. Rev. 161, 199 (2017) (“Fair use was first crafted as a legal standard . . . intending to allow courts to reconcile the copyright of authors with the public interest.”).

  5. See The Dual-Grant Theory of Fair Use, supra note 1, at 1053 (“The fair use defense to copyright infringement is perhaps the most frequently raised and litigated defense in the law of intellectual property.”); Carroll, supra note 1, at 1089 (“Fair use is the first and most general of these limitations.”). Unlike other defenses that apply to infringements of specific rights, such as reproduction, public performance, and public display, fair use offers protection against all violations of all rights.

  6. Golan v. Holder, 565 U.S. 302, 328 (2012); Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003) (describing fair use as a “built-in First Amendment accommodation[]”); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (“In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”).

  7. See generally sources supra note 1 (delineating several aspects of fair use discussion).

  8. Compare 17 U.S.C. § 106 (2018) (“[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . .”), with 17 U.S.C. § 107 (2018) (“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.”).

  9. Julie E. Cohen, The Place of the User in Copyright Law, 74 Fordham L. Rev. 347, 362 (2005) (“In most fair use cases, the identity of the user is known, the use has already been made, and the only question is whether or not it passes muster.”).

  10. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021).
    For an important analysis of the Oracle v. Google litigation prior to the Supreme Court’s ruling, see generally Peter S. Menell, API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess, 31 Berkeley Tech. L.J. 1515 (2016).

  11. Oracle, 141 S. Ct. at 1204.

  12. See United States v. Microsoft Corp, 253 F.3d 34, 53 (D.C. Cir. 2001) (“Operating systems also function as platforms for software applications. They do this by ‘exposing’ . . . routines or protocols that perform certain widely-used functions. These are known as Application Programming Interfaces, or ‘APIs.’”).

  13. Oracle, 141 S. Ct. at 1194.

  14. See id.

  15. See id.

  16. Id.

  17. Id. at 1194–95.

  18. Id. at 1195.

  19. Id.

  20. Id.

  21. Id. at 1186.

  22. See Horace G. Ball, The Law of Copyright and Literary Property 260 (1944) (“Fair use is technically an infringement of copyright, but is allowed by law on the ground that the appropriation is reasonable and customary.”); Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135, 141 (2011) (“Fair use now represents an excuse to justify infringement, or in other words, an exception to the norm of speech suppression through copyright.”).

  23. Oracle, 141 S. Ct. at 1198.

  24. 510 U.S. 569, 571–72 (1994).

  25. The industry practice for obtaining licenses for musical performance is sufficiently well-developed and complex that the would-be user would likely be able to obtain the relevant licenses without direct communication with either Campbell (who owns the rights to 2 Live Crew’s song) or Acuff-Rose (who owns the rights to Orbison’s). For purposes of our example, we ignore the industry practice.

  26. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concluding that “a viable fair use defense is available” for The Wind Done Gone’s potential infringement of Suntrust’s copyright in Gone with the Wind).

  27. See Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1032 (2008) (“[P]roperty rights, as defined by the government, are rights in rem, which avail against the world . . . .”); Guy Pessach, Toward A New Jurisprudence of Copyright Exemptions, 55 Intell. Prop. L. Rev. 287, 291 (2015) (“Copyright owners’ entitlements are in rem exclusive property rights . . . owners have the right to exclude the rest of the world from utilizing their copyrighted works for uses that fall within their bundle of exclusive uses.”).

  28. Perhaps due to the litigation, Google ultimately abandoned use of Oracle’s Java API, and later versions of Android did not involve any copying of Oracle’s copyrighted work. Oracle, 141 S. Ct. at 1191. Our comments relate to early versions of Android that still incorporated Oracle’s work. An early ruling in favor of in rem fair use for Google might have left parts of Oracle’s API in the Android program.

  29. See James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 890 (2007) (stating that since the fair use doctrine is ambiguous and the cost of losing an infringement case is prohibitively high, “even a risk-neutral actor with a good fair use claim would choose to secure a license rather than take the small risk of incurring a severe penalty”).

  30. For discussion, see infra Section I.B.

  31. Gideon Parchomovsky, Fair Use, Efficiency, and Corrective Justice, 3 Legal Theory 347, 350 (1997) (“The doctrine of fair use originated in the decisions of the English Law and Equity courts.”).

  32. 17 U.S.C. § 107 (2018).

  33. Id.

  34. Id.

  35. Stephen B. Thau, Copyright, Privacy, and Fair Use, 24 Hofstra L. Rev. 179, 189 (1995) (“[T]he Court has emphasized . . . that the fourth factor—the impact on the potential market value of the plaintiff’s work—is to receive the most weight.”).

  36. Samuelson, Unbundling Fair Uses, supra note 1, at 2540–41.

  37. 471 U.S. 539 (1985).

  38. Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy 102–03 (2008).

  39. See, e.g., Ben Depoorter, Alain Van Hiel & Sven Vanneste, Copyright Backlash, 84 S. Cal. L. Rev. 1251, 1253 (2011) (“Sharing unlicensed copyrighted materials is now a part of teenagers’ everyday lives.”); Madhavi Sunder, IP³, 59 Stan. L. Rev. 257, 263 (2006) (observing that we are living in the “‘Participation Age’ of remix culture, blogs, podcasts, wikis, and peer-to-peer filesharing,” which in turn leads a “new generation [to view] intellectual properties as the raw materials for its own creative acts, blurring the lines that have long separated producers from consumers”); John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 Utah L. Rev. 537, 548 (pointing out that digital technology “has enabled unparalleled manipulation and use of creative works by ordinary individuals”).

  40. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1186 (2021); Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1354 (Fed. Cir. 2014) (remanding “for further proceedings on Google’s fair use defense”).

  41. See, e.g., Pamela Samuelson & Clark D. Asay, Saving Software’s Fair Use Future, 31 Harv. J.L. & Tech. 535, 536–37 (2018) (“How the Federal Circuit decides Oracle’s appeal of a jury verdict in favor of Google’s fair use defense will have significant implications for future software copyright fair use cases because Oracle, in effect, calls into question the viability of fair use defenses in all API reuse cases (and perhaps in software cases more generally).”).

  42. Oracle, 141 S. Ct. at 1193.

  43. Id.

  44. Id.

  45. Id. at 1186.

  46. Id. at 1190.

  47. Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1347 (Fed. Cir. 2014).

  48. Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974, 979 (N.D. Cal. 2012).

  49. Id. at 996 & n.7 (citing Pamela Samuelson, Why Copyright Law Excludes Systems and Processes from the Scope of Protection, 85 Tex. L. Rev. 1921, 1921 (2007)); id. at 997, 1001–02.

  50. 750 F.3d at 1381.

  51. 750 F.3d 1339, cert. denied, 135 S. Ct. 2887 (2015).

  52. Oracle Am. Inc. v. Google LLC, 886 F.3d 1179, 1185 (Fed. Cir. 2018).

  53. See, e.g., Ieva Giedrimaite, No Allies for Oracle’s Win Against Google, The IPKat (Mar. 25, 2019), https://ipkitten.blogspot.com/2019/03/no-allies-for-oracles-win-against-google.‌html [https://perma.cc/8Q5M-WD2L].

  54. Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1211 (Fed. Cir. 2018).

  55. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1186 (2021).

  56. Id. at 1204.

  57. Google ultimately stopped using the copied code. Android programmers utilizing later versions of the program are therefore shielded from liability to Oracle, despite the limited nature of the fair use defense. Supra note 26.

  58. 886 F.3d at 1186–87.

  59. 510 U.S. 569, 572 (1994).

  60. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1259 (11th Cir. 2001).

  61. Id. at 1277.

  62. See generally Peter Jaszi, Copyright, Fair Use and Motion Pictures, 2007 Utah L. Rev. 715, 717–18 (discussing how documentary filmmaking has contributed to “the increasing reliance of motion picture production on the appropriation of reality . . . giv[ing] rise to tensions that have been expressed in terms of conflicts over copyright”).

  63. Peter Jaszi et al., Evaluating the Benefits of Fair Use: A Response to the PWC Report on the Costs and Benefits of ‘Fair Use’ 3 (Apr. 15, 2016), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=2773646 [https://perma.cc/NB6V-J32A].

  64. See, e.g., Carroll, supra note 1, at 1087 (discussing fair use’s lack of clarity); Jason Mazzone, Administering Fair Use, 51 Wm. & Mary L. Rev. 395, 415 (2009) (noting that fair use fails to give sufficient guidance to users).

  65. See, e.g., Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 N.Y.U. L. Rev. 23, 59–60 (2001) (“The Supreme Court has held consistently and unanimously that American law explicitly treats intellectual property rights in utilitarian terms . . . .”); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 326 (1989) (emphasizing that one of copyright law’s central goals is to maintain incentives for individuals to produce creative works); Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. Chi. L. Rev. 129, 129 (2004) (same).

  66. Abraham Bell & Gideon Parchomovsky, Reinventing Copyright and Patent, 113 Mich. L. Rev. 231, 240–41 (2014) (explaining that copyright law incentivizes the creation of original expressive works by conferring a bundle of exclusive rights on authors).

  67. See Diane Leenheer Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 12 Theoretical Inquiries L. 29, 30 (2011) (“An exclusive right to license or vend the work for a limited time period permits markets for public goods to form.”).

  68. The law and economics literature points to a positive correlation between the number of rightsholders and the level of transaction costs. See generally Abraham Bell & Gideon Parchomovsky, Copyright Trust, 100 Cornell L. Rev. 1015, 1060 (2015) (“Multiparty agreements typically involve higher coordination costs and as the number of parties grows, so does the likelihood of an impasse.”).

  69. See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 615 (2d Cir. 2006) (concluding that the defendant’s use of the plaintiff’s “copyrighted images in its book Illustrated Trip is fair use”).

  70. It is precisely for this reason that Wendy Gordon listed market failure—including prohibitive transaction costs—as the first prerequisite for recognizing fair use by her lights. See Gordon, Fair Use as Market Failure, supra note 1, at 1614–15, 1627–28.

  71. See generally Thomas J. Miceli, The Economic Approach to Law 216–17 (2004) (justifying eminent domain as a mechanism for overcoming holdouts); Steven Shavell, Foundations of Economic Analysis of Law 124 (2004) (discussing the problem of holdouts in the context of government acquisitions of property); Daniel B. Kelly, Acquiring Land Through Eminent Domain: Justifications, Limitations, and Alternatives, in Research Handbook on the Economics of Property Law 344, 345–49 (Kenneth Ayotte & Henry E. Smith eds., 2011) (same).

  72. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 187 (2004).

  73. See generally Leval, supra note 1, at 1106 (“Judges do not share a consensus on the meaning of fair use.”).

  74. See, e.g., Dan L. Burk, Muddy Rules for Cyberspace, 21 Cardozo L. Rev. 121, 140 (1999) (“[F]air use appears to be employed in situations of high transaction costs, where a muddy entitlement may be appropriate . . . . The ‘muddy’ four-part balancing standard of fair use allows courts to reallocate what the market cannot.”).

  75. Gideon Parchomovsky & Kevin A. Goldman, Fair Use Harbors, 93 Va. L. Rev. 1483, 1486 (2007) (“The Supreme Court’s decision to favor ex post fairness over ex ante certainty comes at a steep cost for potential users of copyrighted works.”).

  76. See, e.g., John E. Calfee & Richard Craswell, Some Effects of Uncertainty on Compliance with Legal Standards, 70 Va. L. Rev. 965, 995 (1984) (noting that when the “probability [of liability] declines as defendants take more care, then defendants may tend to overcomply”); Richard Craswell & John E. Calfee, Deterrence and Uncertain Legal Standards, 2 J.L. Econ. & Org. 279, 280 (1986) (arguing that overcompliance is a common effect of some types of uncertain rules); A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 873 (1998) (observing that “if injurers are made to pay more than for the harm they cause, wasteful precautions may be taken . . . and risky but socially beneficial activities may be undesirably curtailed”).

  77. 17 U.S.C. § 504(a)(1) (2018) (stating that a copyright infringer is, by default, liable for any of “the copyright owner’s actual damages and any additional profits of the infringer”).

  78. 17 U.S.C. § 504(c)(2) (2018).

  79. See, e.g., UMG Recordings v. MP3.com, Inc., No. 00-CIV-472, 2000 WL 1262568, at *6 (S.D.N.Y. Sept. 6, 2000) (finding MP3.com liable for approximately $118 million in statutory damages); see also J. Cam Barker, Note, Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 Tex. L. Rev. 525, 545–49 (2004) (pointing out the punitive nature of statutory damages in copyright law).

  80. Gibson, supra note 27, at 887–95.

  81. See id.

  82. Supra Part I.

  83. See John G. Sprankling, Understanding Property Law 3–4 (4th ed. 2017) (noting that most people think of property as “things”); Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1693–94 (2012); Yun-chien Chang & Henry E. Smith, An Economic Analysis of Civil Versus Common Law Property, 88 Notre Dame L. Rev. 1, 4 (2012); Eric R. Claeys, Property 101: Is Property a Thing or a Bundle?, 32 Seattle U. L. Rev. 617, 618 (2009); Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 1 (3d ed. 2017). See generally Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 576 (2005) (noting that the “popular imagination” continues to associate the idea of property with things).

  84. Chang & Smith, supra note 81, at 23.

  85. Merrill & Smith, supra note 81, at 982–89. Easements can also be negative. A negative easement entitles the holder to prevent a certain use of the parcel to which the easement applies. Traditionally, the common law recognized only four negative easements: (1) blocking windows, (2) interfering with air flow in a defined channel, (3) removing artificial support for buildings, and (4) interfering with the flow of water in an artificial channel. See Jesse Dukeminier, James E. Krier, Gregory S. Alexander & Michael H. Schill, Property 736 (6th ed. 2006).

  86. John H. Pearson, Easement Defined, in 7 Thompson on Real Property § 60.02 (David A. Thomas ed., 1994) (“[A]n easement is one of several ways in which one may obtain rights in the land of another, for the benefit of one’s own property or for one’s own personal benefit.”).

  87. Merrill & Smith, supra note 81, at 983; Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. Cal. L. Rev. 1261, 1264 (1982).

  88. Pearson, supra note 84, at § 60.07(a) (“The very nature of an easement, and a major point justifying its existence, is to guarantee that an arrangement for the non-possessory use of land survives the transfer of that land into the hands of another.”).

  89. Id.

  90. Indeed, English law originally refused to recognize the validity of easements in gross. French, supra note 85, at 1267–68.

  91.  Property law also recognizes easements in gross. Unlike appurtenant easements, easements in gross do not attach to the land and do not run with the title to it. Rather, they are personal in nature and benefit particular individuals. In our previous example, Beatrice could have made the easement personal to Alice, rendering it an easement in gross. In such a case, the easement would continue to benefit Alice even if she sold her title to Blackacre and moved elsewhere, but it would not automatically benefit Danielle who purchased title to Blackacre from Alice. In the past, easements in gross were considered non-transferrable. This is no longer the case. Under modern property law, even easements in gross are transferable. See Dukeminier et al., supra note 83, at 714–16.

  92. 18 N.E.2d 362, 362–64 (1938).

  93. Merrill & Smith, supra note 81, at 988.

  94. See generally Pearson, supra note 84, at § 60.02(e)(4) (“The conservation easement is a negative easement that prevents the fee owner from making use of the land in ways that would compromise its preservation”); Jeffrey A. Blackie, Note, Conservation Easements and the Doctrine of Changed Conditions, 40 Hastings L.J. 1187, 1193–94 (1989).

  95. See generally Pearson, supra note 84, at § 60.02(a) (noting that an easement “[m]ay involve the right to act upon the land of another”); J.B. Ruhl, The “Background Principles” of Natural Capital and Ecosystems Services—Did Lucas Open Pandora’s Box?, 22 J. Land Use & Env’t L. 525, 534 (2007) (noting that the four types of traditionally recognized negative easements were: “the rights to stop other landowners from (1) blocking one’s windows, (2) interfering with the flow of air in a defined channel, (3) removing artificial support for buildings, and (4) interfering with the flow of water in an artificial channel”).

  96. Merrill & Smith, supra note 81, at 983.

  97. See William B. Stoebuck & Dale A. Whitman, The Law of Property 472, 475 (3d ed. 2000); Merrill & Smith, supra note 81, at 982–83, 986.

  98. Tulk v. Moxhay (1848) 41 Eng. Rep. 1143 (Ch).

  99. Id.

  100. Note, Equitable Restrictions in Land and Tulk v. Moxhay in Virginia, 39 Va. L. Rev. 703 (1953).

  101. See Jonathan D. Ross-Harrington, Property Forms in Tension: Preference Inefficiency, Rent-Seeking, and the Problem of Notice in the Modern Condominium, 28 Yale L. & Pol’y Rev. 187, 192 (2009) (“Condominiums, like all common-interest communities, are distinguished by their complex system of servitudes and the governance structure designed to amend and enforce the applicable covenants.”).

  102. See Abraham Bell & Gideon Parchomovsky, Governing Communities by Auction, 81 U. Chi. L. Rev. 1, 5 (2014) (noting that “[i]n homeowners’ and condominium associations, the servitudes are generally aggregated in a large document called the covenants, conditions, and regulations (CCR)”).

  103. See, e.g., Villa Milano Homeowners Ass’n v. Il Davorge, 102 Cal Rptr. 2d 1, 6 (Cal. Ct. App. 2000) (“[A] major distinction between the typical adhesion contract and CC&R’s is that, once the homeowners have made their purchases, they ordinarily have the collective power to amend the CC&R’s to suit their changing needs. (Civ. Code, § 1355.) This is because the CC&R’s, unlike most contracts, establish a system of governance.”).

  104. See generally Pearson, supra note 84, at § 60 (describing the law of easements).

  105. See J.G. Pease, The Change of the Property in Goods by Sale in Market Overt, 8 Colum. L. Rev. 375, 375 (1908) (“‘Market overt’ means a public market . . . .”).

  106. See Harold R. Weinberg, Markets Overt, Voidable Titles, and Feckless Agents: Judges and Efficiency in the Antebellum Doctrine of Good Faith Purchase, 56 Tul. L. Rev. 1, 3 (1981) (describing the market overt doctrine).

  107. Edward M. Swartz, The Bona Fide Purchaser Revisited: A Comparative Inquiry, 42 B.U. L. Rev. 403, 404 (1962).

  108. See generally Deborah A. DeMott, Artful Good Faith: An Essay on Law, Custom, and Intermediaries in Art Markets, 62 Duke L.J. 607, 609 (2012) (“In the United States, long-standing rules of property and commercial law embody the nemo dat quod non habet principle—no one can give what one does not have—with the consequence that a thief cannot convey good title, not even when stolen property passes through the hands of an intermediary to a good-faith purchaser.”).

  109. See Alan Schwartz & Robert E. Scott, Rethinking the Laws of Good Faith Purchase, 111 Colum. L. Rev. 1332, 1334 (2011).

  110. Shyamkrishna Balganesh, Copyright and Good Faith Purchasers, 104 Cal. L. Rev. 269, 277 (2016) (“The market overt doctrine sought to protect purchasers who bought their goods from sellers in ‘open’ fairs and markets, which formed the principal channel for trade during the time.”); see also Pease, supra note 103, at 375 (describing the common law rule).

  111. See generally Weinberg, supra note 104.

  112. U.C.C. § 2-403(1)–(2) (amended 1988); see also Grant Gilmore, The Good Faith Purchase Idea and the Uniform Commercial Code: Confessions of a Repentant Draftsman, 15 Ga. L. Rev. 605, 616–17 (1981) (discussing § 2-403).

  113. U.C.C. § 2-403(2).

  114. Id. § 2-403(3).

  115. Id. § 2-403(1).

  116. Id.

  117. For discussion see Gilmore, supra note 110, at 608–20. One classic type of voidable title that is clearly part of the common law and the UCC rule is a case where someone acquires defective title through a fraud in inducement such as payment by a bad check. Consider, for instance, the case of Kotis v. Nowlin Jewelry. Nowlin Jewelry, the original owner of a watch, sold it to Sitton for a check that was ultimately dishonored by the bank due to insufficient funds. Before Nowlin Jewelry discovered that the check was bad, Sitton sold the watch to Kotis. When the check was dishonored, Nowlin Jewelry sought to recover the watch on the grounds that Sitton had never acquired good title due to his fraud, and that Kotis, therefore, could not acquire good title from Sitton. Kotis, however, claimed that he had acquired good title to the watch because Sitton’s title, while defective, was “voidable,” and that Kotis therefore acquired good title as a good faith purchaser for value. The court decided that Sitton’s title was voidable and that a good faith purchaser could therefore take good title. The court reasoned that Nowlin Jewelry had intended to sell the watch to Sitton, and was deceived only about the validity of the payment. Sitton had therefore committed a “fraud in the inducement,” which is a type of fraud that leads to the defrauding acquiror obtaining voidable title. Unfortunately for Kotis, the court also determined that Kotis was not a good faith purchaser, and Nowlin Jewelry prevailed notwithstanding Kotis’s victory on the issue of voidable title. Kotis v. Nowlin Jewelry, Inc., 844 S.W.2d 920 (Tex. Ct. App. 1992).

  118. Merrill & Smith, supra note 81, at 895–99.

  119. Jesse Dukeminier, James E. Krier, Gregory S. Alexander, Michael H. Schill & Lior Jacob Strahilevitz, Property 662 (9th ed. 2018) (“[R]ecording acts have the function of protecting purchasers for value and lien creditors against prior unrecorded interests.”).

  120. Id. at 662–63.

  121. Id. at 682–85 (discussing different types of recording acts).

  122. Id.

  123. Id.

  124. E.g., Sun Valley Land & Minerals, Inc. v. Burt, 853 P.2d 607, 613 (Idaho Ct. App. 1993).

  125. M.J. Higgins, The Transfer of Property Under Illegal Transactions, 25 Modern L. Rev. 149, 149 (1969). While the shelter rule provides wide protection for the good faith purchaser, that protection is not prophylactic. One standard exception to the shelter rule is called the “original owner exception.” It provides that “when a good faith purchaser obtains the property from a grantor who had notice of an outstanding interest in the property, the shelter rule does not apply if the property is reconveyed to the grantor.” Strekal v. Espe, 114 P.3d 67, 74 (Colo. App. 2004). To illustrate this, let us return to our prior example in which Celeste conveys Blackacre first to Darlene and then to Elsa, and Elsa acquires good title due to the recording act. If Elsa sells Blackacre to the innocent Francine, Francine will enjoy the benefit of the shelter rule, and she too will be considered the owner of Blackacre with good title. If, however, Elsa sells Blackacre to Celeste, Celeste will not be able to take advantage of the shelter provided by Elsa’s recorded good faith purchase, and she will not be able to reacquire title from Elsa. A second exception to the shelter rule is when the benefiting party from the recording act then conveys to a new purchaser “who is guilty of violating a trust or duty with respect to the property.” Id. at 74.

  126. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).

  127. Id. at 454–55 (“[H]ome time-shifting is fair use.”).

  128. Universal City Studios v. Sony Corp. of Am., 480 F. Supp. 429, 432–33 (C.D. Cal. 1979).

  129. See Jarosz v. Palmer, 766 N.E.2d 482, 487 n.3 (Mass. 2002) (dividing res judicata law into issue preclusion and claim preclusion).

  130. See Gramatan Home Invs. Corp. v. Lopez, 386 N.E.2d 1328, 1331 (N.Y. 1979) (explaining that issue preclusion is necessary “to conserve judicial resources by discouraging redundant litigation”).

  131. Id.

  132. See, e.g., Lewis A. Grossman, The Story of Parklane: The “Litigation Crisis” and the Efficiency Imperative, in Civil Procedure Stories 387, 390–91 (Kevin M. Clermont ed., 2004).

  133. 122 P.2d 892, 894 (Cal. 1942).

  134. 402 U.S. 313, 313, 350 (1971).

  135. Id. at 347, 350; see also Gideon Parchomovsky & Alex Stein, Intellectual Property Defenses, 113 Colum. L. Rev. 1483, 1512 (2013) (classifying patent invalidation as a general in rem defense).

  136. 439 U.S. 322 (1979).

  137. Id. at 331.

  138. Steven P. Nonkes, Reducing the Unfair Effects of Nonmutual Issue Preclusion Through Damages Limits, 94 Cornell L. Rev. 1459, 1467–68 (2009).

  139. For review, see id. at 1469–75.

  140. For discussion of transaction and litigation costs, see supra Section I.B.

  141. Supra Part I.

  142. For a different proposed approach to follow-on works, as part of a comprehensive approach to copyright improvements, see Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 Tex. L. Rev. 989, 992 (1997).

  143. See infra Section IV.B.

  144. See id.

  145. Statute of Anne, 1710, 8 Ann., C. 19 (Eng.) (establishing what is commonly understood to be the first legal copyright protection).

  146. Copyright Act of 1976, 17 U.S.C. § 302(a).

  147. Avishalom Tor & Dotan Oliar, Incentives to Create Under a “Lifetime-Plus-Years” Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldered v. Ashcroft, 36 Loy. L.A. L. Rev. 437, 437–48 (2002) (discussing the incentive effects of the move to a single fixed term in the 1976 Copyright Act).

  148. See id. at 450 n.39 (surveying the history of copyright protection terms under various copyright acts).

  149. Copyright Act of 1909, 17 U.S.C. § 24 (1970).

  150. Id.

  151. Id.

  152. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 9.01 (Matthew Bender ed., 2021) (reviewing the history of the copyright terms).

  153. Id. § 9.05.

  154. Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (1992).

  155. Nimmer & Nimmer, supra note 150, at § 9.05.

  156. See, e.g., G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (2d Cir. 1951) (holding the renewal right “creates a new estate, and the few cases which have dealt with the subject assert that the new estate is clear of all rights, interests or licenses granted under the original copyright”).

  157. Copyright Act of 1909, 17 U.S.C. § 24 (1970).

  158. See Seymour M. Bricker, Renewal and Extension of Copyright, 29 S. Cal. L. Rev. 23, 24 (1955) (outlining the history of copyright renewal and ownership rights in the common law).

  159. Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 659 (1943).

  160. Id.

  161. See, e.g., De Sylva v. Ballentine, 351 U.S. 570, 573 (1956) (“The statute is hardly unambiguous, however, and presents problems of interpretation not solved by literal application of words as they are ‘normally’ used.”).

  162. Copyright Act of 1909, 17 U.S.C. § 24 (1970).

  163. See Jeffrey M. Lowy, When Does the Renewal Term Vest: Before and After the Copyright Renewal Act of 1992, 13 Loy. L.A. Ent. L. Rev. 437, 438–40 (1993).

  164. 551 F.2d 484 (2d Cir. 1977).

  165. Id. at 486.

  166. Id.

  167. Id.

  168. Id.

  169. Id.

  170. Id. at 487.

  171. Id. at 492–94.

  172. Id.

  173. Nimmer & Nimmer, supra note 150, at § 3.07.

  174. 495 U.S. 207 (1990).

  175. Id. at 211–12.

  176. Id. at 212.

  177. Id.

  178. Id.

  179. Id.

  180. Id.

  181. Id. at 212–14.

  182. Id. at 223–24.

  183. Id. at 228.

  184.  Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (codified as amended 17 U.S.C. § 102(a)(4)(A)).

  185. 17 U.S.C. § 304(a)(4)(A).

  186. See Lowy, supra note 161, at 468–69 (“The main purpose of the Copyright Renewal Act of 1992 is to provide a system of automatic renewal of copyrights.”).

  187. Id.

  188. Id. at 473.

  189. Copyright Act of 1976, 17 U.S.C. § 302(a).

  190. Lowy, supra note 161, at 471–72.

  191. 17 U.S.C. § 203(a).

  192. Id. §§ 203(a), 304(c)–(d).

  193. See, e.g., Kristelia A. García and Justin McCrary, A Reconsideration of Copyright’s Term, 71 Ala. L. Rev. 351 (2019) (noting that “[l]ike termination rights, rights reversion gives the creator a second bite of the apple by reversing an artist’s original transfer of copyright ownership, thereby transferring ownership over a work’s copyright back from an intermediary to the original artist”).

  194. Lydia Pallas Loren, Renegotiating the Copyright Deal in the Shadow of the “Inalienable” Right to Terminate, 62 Fla. L. Rev. 1329, at 1345–46 (2010).

  195. See Nimmer & Nimmer, supra note 150, at § 11.02[A][3].

  196. Sonny Bono Copyright Term Extension Act, Pub. L. No 105-298, 112 Stat. 2827 (1998).

  197. Cf. Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 124 (2d Cir. 2013) (concerning attempted termination by the children of comic book artist Jack Kirby of transfer to Marvel of rights in characters such as Spider-Man, the Fantastic Four, and the X-Men); Siegel v. Warner Bros. Ent. Inc., 542 F. Supp. 2d 1098, 1114 (C.D. Cal. 2008) (concerning attempted termination by Superman creators Jerry Siegel and Joe Shuster of transfer of rights to Superman).

  198. Copyright Act of 1976, 17 U.S.C. § 304(c)(6)(A).

  199. Pub. L. No. 100-568, 102 Stat. 2853 (1988).

  200. Pub. L. No. 103-465, 108 Stat. 4976 (1994).

  201. Tung Yin, Reviving Fallen Copyrights: A Constitutional Analysis of Section 514 of the Uruguay Round Agreements Act of 1994, 17 Loy. L.A. Ent. L.J. 383, 384 (1997).

  202. See Nimmer & Nimmer, supra note 150, at § 9A.04[A][1][a].

  203. Id. §§ 7.02–7.03.

  204. Copyright Act of 1976, 17 U.S.C. § 104A.

  205. Id.

  206. Id. § 104A(d)(3)(A) (“[A] reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement . . . .”).

  207. Id. § 104A(d)(2)(B) (outlining a twelve-month grace period for reliance parties beginning on the date notice is given of intent to restore a copyright).

  208. Id.

  209. Copyright Act of 1976, 17 U.S.C. § 104A(d)(2)(B).

  210. Id. § 104A(d)(3).

  211. Id.

From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People

In June 2021, Britney Spears made headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’s dreadful experiences are a glaring reminder that nearly 100 years after the infamous Buck v. Bell decision, reproduction is still weaponized to subjugate people with disabilities. Indeed, the reproductive oppression experienced by Britney Spears and other people with actual or perceived disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Confronting these persistent inequities will require us to radically transform our laws and policies. This Essay responds to the ongoing reproductive injustice experienced by disabled people by proposing a vision to assist activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. The guiding principles set forth herein are intended to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for action could not be more timely or clear.

Introduction

“I want to be able to get married and have a baby . . . . I wanted to take the (IUD) out so I could start trying to have another baby. But this so-called team won’t let me go to the doctor to take it out because they don’t want me to have children—any more children.” – Britney Spears1.Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized’, Variety (June 23, 2021, 3:59 PM), https://variety.com/2021/music/‌news/britney-spears-full-statement-conservatorship-1235003940/ [https://perma.cc/QJ6Y-9UBH] (transcript of Spears’s June 23, 2021, statement to Los Angeles Superior Court Judge, Brenda Penny).Show More

On June 23, 2021, Britney Spears delivered a twenty-four-minute statement to the Los Angeles Superior Court passionately pleading for an end to the thirteen-year conservatorship to which she has been subjected.2.Id. At the time of this writing, Britney Spears’s case is ongoing. On September 29, 2021, the court suspended Britney Spears’s father, James Spears, as his daughter’s conservator and temporarily replaced him with a new conservator. Joe Coscarelli, Julia Jacobs & Liz Day, Judge Frees Spears From Father’s Control (Oct. 2, 2021), https://www.nytimes.com/‌2021/09/29/arts/music/britney-spears-court-decision-conservatorship.html [https://perma.cc/9N3S-S8NA]. The court has scheduled a hearing for November 12, 2021, to determine whether the conservatorship should end.Id.Show More In her heartbreaking testimony, Britney Spears presented a lengthy list of abuses she has allegedly endured, including surveillance, confinement, forced medication, and arduous labor demands.3.Aswad, supra note 1.Show More One detail stood out as especially egregious: Britney Spears wants to get married and have more children but is being prevented from doing so because her conservators will not authorize the removal of her intrauterine device (“IUD”).4.Id.Show More The juxtaposed responses of people with and without disabilities are a telling commentary on the state of reproductive freedom for disabled people.5.Consistent with disability rights and disability justice movements, this Essay acknowledges the importance of language in shaping how we think about disability and how ableism can pervade language choices as well as reflect and perpetuate disability-based subordination. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya(Feb. 27, 2021), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/HS2F-LJ2C]. To that end, I use person-first and identity-first language interchangeably (e.g., “parents with disabilities” and “disabled parents”) in recognition of the disability community’s diverse language preferences. See generally Dana S. Dunn & Erin E. Andrews, Person-First and Identity-First Language: Developing Psychologists’ Cultural Competence Using Disability Language, 70 Am. Psych. 255 (2015) (exploring the evolving language preferences among people with disabilities).Show More Fans, celebrities, and public officials, on the one hand, expressed horror and astonishment that such reproductive oppression was lawfully occurring in the United States.6.See, e.g., @yooitsmo, Twitter (June 24, 2021, 11:58 AM), https://twitter.com/yooitsmo/‌status/1408092248265445387 [https://perma.cc/UX86-TLL3] (“I’m sorry but…Britney HAS to keep an [IUD] in under her conservatorship??? How is any of this legal/okay???”); Meghan McCain (@MeghanMcCain), Twitter (June 23, 2021, 9:14 PM), https://twitter.com/‌MeghanMcCain/‌status/1407869786156146689 [https://perma.cc/T7S7-3X6G] (“This goes beyond any normal courts, there should be human rights violations investigations. Britney Spears was held captive, out in the open and we gawked at her and didn’t listen. This is how we treat famous women. Thank God she didn’t kill herself. There is a rot in our culture”); Congresswoman Katie Porter (@katieporteroc), Twitter (June 24, 2021, 7:25 PM), https://twitter.com/katieporteroc/status/1408204566592561157 [https://perma.cc/‌AA53-C7WG] (“Every American—regardless of their gender identity or disability status—ought to be able to make decisions about their own bodies. #FreeBritney”).Show More People with disabilities, on the other hand, while enraged, were not surprised that Britney Spears’s conservator was exerting reproductive control over her, explaining that such efforts are emblematic of the United States’ ongoing practice of weaponizing their reproduction to subjugate them.7.See, e.g., Imani Barbarin (@Imani_Barbarin), Twitter (June 24, 2021, 10:54 AM), https://twitter.com/Imani_Barbarin/status/1408076140028305422 [https://perma.cc/3W8S-DPTB] (“I don’t like the gaslighting that goes on when disabled people tell y’all that what’s happening with #FreeBritney is not at all unique. You just have a hierarchy of disability and a point at which you think someone is “too disabled” to care about.”); Sarah Lerner (@SarahLerner), Twitter (June 23, 2021, 6:42 PM), https://twitter.com/SarahLerner/status/‌1407831499164962817 [https://perma.cc/A8BU-TS75] (“Britney Spears being held under a 13-year conservatorship and being forced to keep her IUD in despite the fact that she wants another child is where disability rights and reproductive rights intertwine.”); Dr. Sherri G. (@onlymeindc), Twitter (June 24, 2021, 9:27 PM), https://twitter.com/onlymeindc/‌status/1408235268545519617 [https://perma.cc/UV6J-LU5J] (“The Britney Spears situation is most definitely a disability rights issue. The medical and social models of disability are clashing right in front of your eyes. One model boils us down to impairment through oppressive paternalism forcing us in the sick role and the other doesn’t.”); Eric Michael Garcia (@EricMGarcia), Twitter (June 23, 2021, 5:55 PM), https://twitter.com/EricMGarcia/‌status/1407819545394434051 [https://perma.cc/8BKP-PMAL] (“As always, it’s important to remember that #FreeBritney is a disability rights issue. If the state can do this to one of the most influential pop stars in my lifetime, think about what it can do to others.”).Show More

Britney Spears’s experiences are neither unique nor uncommon. Rather, the belief that people with actual or perceived disabilities—including physical, intellectual, sensory, and psychiatric disabilities—should not have reproductive autonomy is woven into our nation’s fabric.8.See infra Part I (contextualizing the United States’ history of the reproductive oppression of people with disabilities and the ways in which it persists today).Show More Each day, disabled people experience reproductive oppression, including forced sterilization, coerced abortion, inadequate access to sexual and reproductive health services and information, and loss of custody of their children.9.Id.Show More The injustices are even more pronounced for multiply marginalized people with disabilities, including disabled people of color and LGBTQ+ people.10 10.Zoe Brennan-Krohn & Rebecca McCray, Britney Spears’ Reproductive Freedom Is a Disability Rights Issue, ACLU (June 25, 2021), https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/ [https://perma.cc/KZ9E-75WS] (“Spears’ experience is part of a long history of people with disabilities—most often people of color—being robbed of the right to control their reproductive destinies.”); Nat’l LGBTQ Task Force, Queering Reproductive Justice: A Toolkit 5–7 (Zsea Beaumonis, Candace Bond-Theriault, Stacey Long Simmons & Sabrina Rewald eds., 2017), https://www.thetaskforce.org/wp-content/uploads/2017/03/Queering-Reproductive-Justice-A-Toolkit-FINAL.pdf [https://perma.cc/5L88-TMXB].Show More The reproductive oppression experienced by disabled people is deeply entrenched in our laws, in our policies, and perhaps most importantly, in our collective conscience. To transform our society into one that respects and supports reproductive freedom for people with disabilities, therefore, the systems that propagate these injustices must be entirely dismantled.

This Essay responds to the persistent reproductive oppression experienced by people with disabilities by proposing a vision to help activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. Part I examines the social context, institutions, and history that perpetuate reproductive oppression among people with disabilities in the United States. It describes the origins of weaponizing reproduction to subjugate disabled people and contemporary examples of such injustice. Part II explores two complementary frameworks for analyzing and confronting the reproductive oppression of disabled people: reproductive justice and disability justice. Finally, guided by reproductive justice and disability justice, Part III proposes four guiding principles necessary for a jurisprudential and legislative agenda to achieve and deliver reproductive justice for people with disabilities.

I. Persistent Reproductive Injustice

The recent revelations of the reproductive control being exerted by Britney Spears’s conservator must be situated within the nation’s long and reprehensible history of weaponizing reproduction to oppress disabled people, as well as other marginalized communities. This Part limns the ways in which laws and policies have led to the reproductive oppression of people with disabilities—particularly girls and women with disabilities11 11.Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8Berkeley Women’s L.J. 122, 123–24 (1993) (“Only a few of the dozens of cases regarding involuntary sterilizations involve the sterilization of males. Therefore, sterilization practice is interwoven with the issue of control of female reproductive rights and, to some extent, of female sexual expression.”). But seeIn reGuardianship of Kennedy, 845 N.W.2d 707, 708–09 (Iowa 2014) (evaluating an appeal brought by a 21-year-old man with intellectual disabilities challenging the legality of a vasectomy his guardian had arranged for him without obtaining a court order); Renu Barton-Hanson, Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway?, 15 Med. L. Int’l 49, 57–58 (2015) (examining recent cases concerning sterilization of men with intellectual disabilities and noting the frequent justification as purportedly promoting sexual freedom).Show More—beginning with the eugenics movement. Without attempting to provide a complete description of the myriad ways in which reproduction has been weaponized to subjugate disabled people, this Part highlights examples of how these practices have lawfully endured over time, focusing primarily on contemporary practices.

A. Historical Reproductive Injustice

The United States has a horrible history of preventing disabled people from controlling their destinies, including enacting laws and policies restricting their reproductive decision-making. During the eugenics movement of the early 1900s, more than thirty states passed involuntary sterilization laws, postulating that people with disabilities and other marginalized communities were socially inadequate and should be prevented from procreating.12 12.See Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. Louisville J. Fam. L. 947, 948, 953–54 (1993) (“The purpose of these laws was to protect and streamline society by preventing reproduction by those deemed socially or mentally inferior.”).Show More This line of reasoning underscored the infamous 1927 Buck v. Bell decision.13 13.274 U.S. 200 (1927).Show More Carrie Buck was purportedly a “feeble minded” woman institutionalized in Virginia.14 14.Id. at 205; see also Stephen Jay Gould, Carrie Buck’s Daughter, 2 Const. Comment.331, 336 (1985) (asserting that Buck was not “feebleminded” but rather institutionalized to hide her rape).Show More She was likewise the daughter of a “feeble minded” woman committed to the same institution.15 15.Buck, 274 U.S. at 205; Gould, supra note 14, at 334.Show More At seventeen years old, Carrie Buck became pregnant after being raped; her daughter Vivian was also deemed “feebleminded.”16 16.Gould, supra note 14, at 333, 336; Buck, 274 U.S. at 205.Show More After Vivian’s birth, the institution sought to sterilize Carrie Buck in accordance with Virginia’s compulsory sterilization statute.17 17.Buck, 274 U.S. at 205–06; Gould, supra note 14, at 331.Show More It should be noted that Vivian was removed from her mother after birth and placed in a foster home.18 18.Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 104–05 (2008).Show More Following a series of appeals, the law was upheld as constitutional in part on the grounds that it served “the best interests of the patients and of society.”19 19.Buck, 274 U.S. at 206–08.Show More Concluding this historical decision, Justice Oliver Wendell Holmes, Jr. declared, “It is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind.”20 20.Id. at 207.Show More During the twentieth century, as many as 70,000 Americans, many of whom were people of color or whom had disabilities, were sterilized.21 21.Fresh Air, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 17, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/5KYD-Z79X].Show More Notably, Buck v. Bell has never been overturned.22 22.Fifteen years after Buck v. Bell was decided, the Supreme Court struck down an Oklahoma law requiring that people with two or more convictions for felonious offenses be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 536–37, 543 (1942). Although both Skinner and Buck concern involuntary sterilization statutes, Skinner’s analysis took a narrower focus, relating only to the punitive sterilization of criminals, thereby avoiding addressing the forced sterilization of people with disabilities. Id. at 542–43.Show More

Laws forbidding people with disabilities from marrying were another hallmark of the eugenics movement.23 23.Brooke Pietrzak, Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment, 17 Dev. Mental Health L. 1, 34–35 (1997).Show More Specifically, three eugenics-based justifications were put forth to advance marriage restrictions: “the potential children must be protected; people with [disabilities] themselves must be protected; and society at large must be protected.”24 24.Id. at 35.Show More For example, a Connecticut law banned “epileptics, imbeciles, and feebleminded persons” from marrying or having extramarital sexual relations before the age of forty-five.25 25.Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981).Show More In 1974, a study found that over forty states had laws preventing people with intellectual disabilities from marrying.26 26.President’s Comm. on Mental Retardation, OHD 74-21002, Silent Minority 33 (1974).Show More The most recent systematic investigation of these statutes was undertaken in 1997 and found that thirty-three states still had laws restricting people with intellectual or psychiatric disabilities from marrying.27 27.Pietrzak, supra note 23, at 1–2. Although no known studies have systematically examined marriage laws as they apply to people with disabilities, scholars contend that these statutes continue to exist in some states. Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 548–49 (2014).Show More

B. Contemporary Reproductive Injustice

As Britney Spears’s recent testimony demonstrates, people with disabilities’ reproductive freedom continues to be controlled in a multitude of ways. For example, while nearly all states have repealed their involuntary sterilization laws, most states still permit sterilization with prior judicial authorization.28 28.See Vanessa Volz, Note, A Matter of Choice: Women with Disabilities, Sterilization, and Reproductive Autonomy in the Twenty-First Century, 27 Women’s Rts. L. Rep. 203, 207–08 (2006).Show More Recently, the parents of Mary Moe,29 29.Mary Moe is a pseudonym; Massachusetts General Law requires that informed consent proceedings for an abortion be kept confidential. Mass. Gen. Laws ch. 112, § 12R (2020).Show More a 32-year-old pregnant woman with a psychiatric disability, petitioned a Massachusetts court for guardianship over Mary Moe to consent to an abortion.30 30.In re Guardianship of Mary Moe, 960 N.E.2d 350, 352 (Mass. App. Ct. 2012).Show More Although Mary Moe vehemently opposed abortion, the trial court appointed her parents as co-guardians and authorized that Mary Moe be “coaxed, bribed, or even enticed . . . by ruse” into a hospital for an abortion.31 31.Id. at 353 (quoting the family court’s decision).Show More Further, the trial judge ordered sua sponte, and without notice, that Mary Moe be sterilized “to avoid this painful situation from recurring in the future.”32 32.Id. (quoting the family court’s decision).Show More Eventually, the decision was reversed on appeal, with the appellate court noting in regard to the sterilization order, “No party requested this measure, none of the attendant procedural requirements has been met, and the judge appears to have simply produced the requirement out of thin air.”33 33.Id. at 355.Show More Although Moe’s case had a positive outcome consistent with her articulated desires, her case demonstrates how disabled people experience threats to their reproductive freedom even with supposed judicial protections.

The “Ashley X” case provides another disturbing example of how the reproductive freedom of people with disabilities is subordinated. Ashley was a young girl with intellectual and physical disabilities.34 34.Daniel F. Gunther & Douglas S. Diekema, Attenuating Growth in Children with Profound Developmental Disability: A New Approach to an Old Dilemma, 160 Archives Pediatrics & Adolescent Med. 1013, 1014 (2006); Marcia H. Rioux & Lora Patton, Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence, in Critical Perspectives on Human Rights and Disability Law 243, 243–44 (Marcia H. Rioux, Lee Ann Basser & Melinda Jones eds., 2011).Show More In 2004, at age six, a Washington hospital, with Ashley’s parents’ permission, performed a series of procedures, including growth attenuation via hormone therapy, a hysterectomy, and bilateral breast bud removal.35 35.Gunther & Diekema, supranote 34; Rioux & Patton, supra note 34, at 244.Show More Her physicians and family justified the permanent alteration of her body by arguing that the procedures ensured “the best possible quality of life,” by enabling her to be more easily cared for by her family, while also allowing her to “retain more dignity in a body that is healthier, more of a comfort to her, and more suited to her state of development.”36 36.The “Ashley Treatment”, Towards a Better Quality of Life for “Pillow Angels”, at 3, 12 (Mar. 17, 2012), http://pillowangel.org/Ashley%20Treatment.pdf [https://perma.cc/8E3Z-VCEQ] (the document is authored by: “Ashley’s Mom and Dad”).Show More Further, Ashley’s parents asserted, “Ashley has no need for her uterus since she will not be bearing children,”37 37.Id. at 10.Show More and her physicians contended that the hysterectomy benefited both Ashley and her family because it “eliminate[d] the complications of menses.”38 38.Gunther & Diekema, supranote 34, at 1015.Show More Thus, Ashley’s “best interest was equated with her parents’ ability to maintain her at home and being easily able to carry and move her.”39 39.Rioux & Patton, supra note 34, at 244–45.Show More Notably, Ashley’s parents successfully sought these procedures with just the authorization of an internal ethics board and not through adjudication.40 40.Id. at 244.Show More Years later, an investigation revealed that the hospital had violated state law in this matter.41 41.Amy Burkholder, Report: ‘Pillow Angel’ Surgery Broke Law, CNN (May 8, 2007), http://www.cnn.com/2007/HEALTH/05/08/ashley.ruling/index.html [https://perma.cc/Z8RD-LF78] (“Children’s Hospital, in acknowledging its error, said that beyond implementing changes to ensure that sterilization of disabled children doesn’t happen again without a court order, it will seek court approval for other procedures involved in the controversial growth attenuation therapy.”).Show More Nonetheless, the “Ashley Treatment” remains accepted globally, with more than 100 families estimated to have subjected their children to similar procedures while thousands more are said to have considered it.42 42.Ed Pilkington & Karen McVeigh, ‘Ashley Treatment’ on the Rise Amid Concerns from Disability Rights Groups, The Guardian (Mar. 15, 2012) http://www.guardian.co.uk/society/‌2012/mar/15/ashley-treatment-rise-amid-concerns/ [https://perma.cc/B5WF-ENKY].Show More Thus, “[i]f the parents and doctors are all on board, these sorts of sterilization decisions can easily fly under the radar and evade mechanisms of legal accountability.”43 43.Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 289 (2020).Show More

Sterilization remains a standard procedure for many people with disabilities. Indeed, several recent studies have found that disabled women, especially those with intellectual disabilities, are significantly more likely than nondisabled women to be sterilized and at younger ages.44 44.See Justine P. Wu et al., Female Sterilization Is More Common Among Women with Physical and/or Sensory Disabilities than Women Without Disabilities in the United States, 10 Disability & Health J. 400, 403 (2017); William Mosher et al., Contraceptive Use by Disability Status: New National Estimates from the National Survey of Family Growth, 97 Contraception 552, 555 (2018); Henan Li et al., Female Sterilization and Cognitive Disability in the United States, 2011–2015, 132 Obstetrics & Gynecology 559, 561 (2018).Show More Further, today, sterilization of people with disabilities is primarily “driven by parents, guardians, and social service providers who are uneasy . . . [that] they will incur the additional burden of caring for the offspring.”45 45.Beverly Horsburgh, Schrödinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 Cardozo L. Rev. 531, 572 (1996).Show More Tellingly, in petitions to courts for approval to sterilize people with disabilities or terminate their pregnancies, guardians often cite cost as a prevailing factor.46 46.Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 Berkeley Women’s L.J. 122, 126 (1993).Show More In fact, in authorizing the sterilization of disabled people, courts often advance analogous presumptions to those put forward in Buck, such as that people with disabilities are “incapable of adequate parenting” and their children will “inevitably be a financial burden on the state.”47 47.Id.Show More Thus, while the “[e]ugenic rhetoric might have declined,” the “eugenic motivations and eugenic laws did not.”48 48.Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14 Cardozo J.L. & Gender 319, 350 (2008).Show More While sterilization should unquestionably be an option for permanent contraception for people who choose it, given the country’s history, it is not difficult to imagine that many of these sterilizations may be coerced.

Inadequate access to sexual and reproductive health services and information, including contraception, also thwarts disabled people’s reproductive autonomy. As Britney Spears’s experiences demonstrate, there is significant tension concerning people with disabilities and contraception. On the one hand, research indicates that disabled women have less contraception knowledge and lower contraception use compared to nondisabled women.49 49.Robyn M. Powell, Susan L. Parish, Monika Mitra, & Eliana Rosenthal, Role of Family Caregivers Regarding Sexual and Reproductive Health for Women and Girls with Intellectual Disability: A Scoping Review, 64 J. Intell. Disability Rsch. 131, 132 (2020) (citing studies).Show More On the other hand, like Britney Spears, some women with disabilities are forced by family members or guardians to use contraception out of fear that their disabled relative will become pregnant.50 50.Id. at 151 (citing studies).Show More In these instances, Britney Spears and others are in effect sterilized since they cannot reproduce due to forced contraception. Thus, some disabled people have inadequate access while other people are denied contraceptive decision-making. Extant research also suggests that pregnant women with disabilities experience higher risks of complications and poorer outcomes than nondisabled women because of inadequate access to health care.51 51.Monika Mitra, Linda M. Long-Bellil, Suzanne C. Smeltzer & Lisa I. Iezzoni, A Perinatal Health Framework for Women with Physical Disabilities, 8 Disability Health J.499, 499 (2015) (citing studies); Lesley A. Tarasoff et al., Health of Newborns and Infants Born to Women with Disabilities: A Meta-Analysis, 146 Pediatrics, e20201635, at 2 (2020) (citing studies); Ilhom Akobirshoev, Susan L. Parish, Monika Mitra & Eliana Rosenthal, Birth Outcomes Among US Women with Intellectual and Developmental Disabilities, 10 Disability & Health J. 406, 409tbl. 2 (2017) (comparing maternal and infant outcomes of women with and without intellectual disabilities).Show More Indeed, adverse perinatal outcomes are often the result of physical barriers, communication barriers, and programmatic barriers, including healthcare providers’ negative attitudes about sexuality and reproduction among disabled women.52 52.Robyn M. Powell, Erin E. Andrews & Kara B. Ayers, Becoming a Disabled Parent: Eliminating Access Barriers to Health Care Before, During, and After Pregnancy, 96 Tul. L. Rev. (forthcoming 2021) (manuscript at 2), https://papers.ssrn.com/sol3/papers.cfm?abstract‌_id=3808017 [https://perma.cc/3JD2-WD5G] (interviewing disabled parents about their experiences accessing health care services).Show More

Finally, prejudice and speculation about the competencies of parents with disabilities—emulating those raised during the eugenics movement—have led to contemporary discriminatory child welfare, family law, and adoption and foster care policies and practices that assume parental unfitness.53 53.See generally Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 15 (2012) [hereinafter “Rocking the Cradle”], https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/UB7C-XMMG] (“The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities—including intellectual and developmental, psychiatric, sensory, and physical disabilities—experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.”).Show More For example, disabled parents experience disproportionate rates of child welfare system involvement and loss of parental rights.54 54.Id. at 16.Show More Parents with disabilities also contend with state statutes that include disability as grounds for the termination of parental rights.55 55.Id. at 265–300 (finding that over two-thirds of state dependency laws list parental disability as grounds for termination of parental rights).Show More Family courts often deny parents with disabilities custody of or visitation with their children.56 56.Robyn M. Powell, Family Law, Parents with Disabilities, and the Americans with Disabilities Act, 57 Fam. Ct. Rev. 37, 38 (2019) (“Indeed, parents with disabilities contend with substantial and persistent bias within the family law system, often threatening their custody and visitation rights.”).Show More For example, Britney Spears has had limited access to her children since she was placed under conservatorship.57 57.Laura Rizzo, Inside Britney Spears’ Custody Battle with Kevin Federline for Kids Sean Preston and Jayden, Life & Style Mag. (June 24, 2021), https://www.lifeandstylemag.com/‌posts/does-britney-spears-have-custody-of-kids-preston-and-jayden/ [https://perma.cc/EQY3-9KZ3] (explaining that Britney Spears had 30% custody at the time and was reportedly seeking 50%).Show More Meanwhile, foster care and adoption agencies regularly discriminate against prospective disabled parents based on presumptions that they are unfit to care for children.58 58.Rocking the Cradle,supranote 53, at 153–66 (describing the ways prospective parents with disabilities experience discrimination within the foster care and adoption system).Show More

II. Reproductive Justice and Disability Justice

Britney Spears’s tragic experiences are a stark reminder that nearly 100 years after the infamous Buck v. Bell decision, reproductive freedom is still denied to far too many disabled people, often because of discriminatory laws and policies. Thus, attention by activists, legal professionals, scholars, and policymakers to these matters is urgently needed. The four guiding principles for achieving reproductive justice for disabled people proposed in Part III infra are guided by two complementary frameworks: reproductive justice and disability justice. Both reproductive justice and disability justice are intersectional social movements, theories, and praxes which provide important lenses for analyzing and responding to the ongoing weaponization of reproduction to subjugate people with disabilities. This Part briefly describes each framework.

A. Reproductive Justice

Reproductive justice is based on the international human rights framework. It draws from reproductive rights and social justice. Reproductive justice was first “conceived in 1994 by feminists of color to conceptualize reproductive rights struggles embedded in social justice organizing that simultaneously challenged racism and classism, among other oppressions.”59 59.Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 328 (2013).Show More According to Loretta Ross, co-founder of the SisterSong Women of Color Reproductive Health Collective, “[t]he Reproductive Justice framework analyzes how the ability of any woman to determine her own reproductive destiny is linked directly to the conditions in her community—and these conditions are not just a matter of individual choice and access.”60 60.Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social Change 4, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 [https://perma.cc/5SSG-QVSD] (last visited Oct. 1, 2021) [hereinafter “Reproductive Justice Briefing Book”].Show More

Drawing from intersectionality, which “illustrate[s] how racial and gender oppression interact in the lives of Black women,”61 61.Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 73 (2017).Show More reproductive justice is “based on the understanding that the impacts of race, class, gender, and sexual identity oppressions are not additive but integrative,”62 62.Id. at 74.Show More and understands that only a holistic lens can address them. Accordingly, reproductive justice centers on “the ways in which aspects of social status and social identity (e.g., age, race/ethnicity, socioeconomic class, sexual orientation, gender identity, religion, ability) combine to impact women’s experiences.”63 63.Joan C. Chrisler, Introduction: A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Women & L. 1, 4 (2013).Show More In other words, reproductive justice recognizes the ways in which intersecting factors, such as race and disability, constrain the reproductive freedom of marginalized communities.

Reproductive justice emerged as a movement because women of color and other marginalized communities felt that the reproductive rights movement disregarded their needs and experiences.64 64.Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 75 (2011).Show More Reproductive justice, therefore, goes beyond our traditional understanding of reproductive rights in two critical ways. First, reproductive justice recognizes the importance of choice while also considering the broader social, legal, and institutional structures that affect people’s reproductive decision-making.65 65.Reproductive Justice Briefing Book, supranote 60, at 4. (“Moving beyond a demand for privacy and respect for individual decision making to include the social supports necessary for our individual decisions to be optimally realized, this framework also includes obligations from our government for protecting women’s human rights. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.”).Show More Second, and relatedly, reproductive justice applies to all aspects of reproductive freedom instead of just abortion rights.66 66.Id. (“Instead of focusing on the means—a divisive debate on abortion and birth control that neglects the real-life experiences of women and girls— the Reproductive Justice analysis focuses on the ends: better lives for women, healthier families, and sustainable communities.”).Show More Accordingly, reproductive justice “includes not only a woman’s right not to have a child, but also the right to have children and to raise them with dignity in safe, healthy, and supportive environments.”67 67.Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall 2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/C37U-GS88]; see also Luna & Luker, supra note 59, at 343 (“[R]eproductive justice is equally about the right to not have children, the right to have children, the right to parent with dignity, and the means to achieve these rights.”).Show More Thus, “[b]y moving beyond the traditional pro-choice narrative and into the reality of lived experiences within the women’s communities, the reproductive justice movement focuses on the inequality among groups of women that inhibits access to these rights for some more than others.”68 68.Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325, 343 (2019).Show More In other words, reproductive justice challenges the pro-choice/pro-life dichotomy, viewing “choice” as something that divides people in policy and practice because it accepts that all people have an equal ability to make the same choices.

Reproductive justice necessitates “an integrated approach that draws on constitutional protections and movement-based policy strategies.”69 69.Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2240 (2018).Show More Further, reproductive justice recognizes that “many kinds of laws shape the conditions in which women conceive and bear children.”70 70.Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 210 (2018).Show More Reproductive justice emphasizes an affirmative government role “in ensuring that all women have the social, political, and economic power and resources to make the best decisions for themselves and their families.”71 71.Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-Choice and Disability Rights Communities Together, 84 Contraception 541, 542 (2011).Show More Rather than relying only on litigation and attorneys, reproductive justice also engages in grassroots and community organizing.72 72.London, supra note 64, at 71–72.Show More

Extant legal scholarship has demonstrated the importance of applying reproductive justice to dissect and address the reproductive oppression of people with disabilities.73 73.See, e.g., Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender & Soc. Just. 607, 628–31 (2021) (examining the history of eugenics in the United States and calling for a justice-based approach to address the role of ableism in eugenics); Bagenstos, supra note 43, at 279–86; Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev. 587, 627–30 (2017) (describing ways in which reproductive justice should be used to advocate for programs to support people with disabilities as a mechanism for reducing disability-based abortions); Mohapatra, supra note 68, at 325–27 (2019) (using the Zika virus to highlight the tensions between reproductive rights and disability rights); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 316–18 (2013) (proposing how organizing based on an intersectional analysis can help facilitate alliances between reproductive justice, racial justice, women’s rights, and disability rights activists to develop strategies to address reproductive genetic technologies); Roberts, supra note 67 (describing the failures of the reproductive rights movement to respond to the needs of marginalized communities, including people with disabilities, and calling for a reproductive justice framework instead).Show More As Samuel Bagenstos notes, “[j]ust as ‘regulating Black women’s reproductive decisions has been a central aspect of racial oppression in America,’ regulating disabled people’s reproductive decisions has been a central aspect of disability oppression in America.”74 74.Bagenstos, supranote 43, at 285 (quoting Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 6 (1997)).Show More Hence, reproductive justice can be engaged to confront the myriad oppressions that prohibit people with disabilities from enjoying their reproductive freedoms by confronting and disrupting the longstanding systems that propagate reproductive injustice.

B. Disability Justice

Disability justice is an equally important lens for dislocating the nation’s ongoing reproductive oppression of people with disabilities. Indeed, “reproductive justice is disability justice.”75 75.Sins Invalid, Skin, Tooth, and Bone—The Basis of Movement is Our People: A Disability Justice Primer 59 (2d ed. 2019) (capital letters omitted).Show More Specifically, disability justice provides an important framework for examining ableism as it relates to other forms of oppression and identity. Disability justice was first conceived in 2005 by the Disability Justice Collaborative, a group of Black, brown, queer, and trans people.76 76.Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice 11 (2018).Show More Disability justice includes ten fundamental principles needed to achieve a truly inclusive and just society: “intersectionality . . . leadership of those most impacted . . . anti-capitalist politics . . . cross-movement solidarity . . . recognizing wholeness . . . sustainability . . . commitment to cross-disability solidarity . . . interdependence . . . collective access . . . [and] collective liberation.”77 77.Sins Invalid, supranote 75, at 22–26 (capital letters omitted).Show More

Similar to reproductive justice, disability justice distinguishes itself from a rights-based approach and calls for a holistic approach to disrupting the longstanding systems that cause oppression. According to Sins Invalid, a disability justice performance project, “Rights-based strategies often address the symptoms of inequity but not the root. The root of disability oppression is ableism and we must work to understand it, combat it, and create alternative practices rooted in justice.”78 78.Id. at 15, 47.Show More Thus, “[w]here disability rights seeks to change social conditions for some disabled people via law and policy, disability justice moves beyond law and policy: It seeks to radically transform social conditions and norms in order to affirm and support all people’s inherent right to live and thrive.”79 79.Talila “TL” Lewis, Disability Justice Is an Essential Part of Abolishing Police and Prisons, Level (Oct. 7, 2020), https://level.medium.com/disability-justice-is-an-essential-part-of-abolishing-police-and-prisons-2b4a019b5730 [https://perma.cc/J5QL-9UNR].Show More In other words, “[a]t its core, the disability rights framework centers people who can achieve status, power and access through a legal or rights-based framework, which we know is not possible for many disabled people, or appropriate for all situations.”80 80.Sins Invalid, supra note 75, at 15.Show More Disability justice is based on community and grassroots organizing.

Further, like reproductive justice, intersectionality81 81.In 1989, Kimberlé Crenshaw coined the term “intersectionality” to help explain the oppression of African-American women. SeeKimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U. Chi. Legal F. 139, 140 (1989). Since then, intersectionality has been used to study how people who are members of multiple socially marginalized communities experience discrimination, including people with disabilities. See, e.g., Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209, 211–22 (2010).Show More is a fundamental aspect of disability justice. Indeed, disability justice was developed as a “movement-building framework that would center the lives, needs, and organizing strategies of disabled queer and trans and/or Black and brown people marginalized from mainstream disability rights organizing’s white-dominated, single-issue focus.”82 82.Piepzna-Samarasinha, supra note 76, at 11.Show More Notably, “disability justice values an intersectional analysis which requires us to consider the complexities of reproductive justice in the context of ableism.”83 83.Sins Invalid, Reproductive Justice is Disability Justice 1, https://www.sinsinvalid.‌org/s/Reproductive_Justice_is_Disability_Justice.pdf [https://perma.cc/6XUF-Z8JL] (last visited June 26, 2021).Show More For example, disabled people at the intersection of other marginalized identities, such as disabled people of color or LGBTQ+ disabled people, experience even greater reproductive oppression. Hence, “[p]eople who exist at the intersection of race and disability experience a multi-dimensional form of discrimination that is continually at risk of being flattened to a single dimension—either race or disability—due to the limitations of our collective understanding of intersectionality.”84 84.Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L.15, 20–21 (2018).Show More

III. Achieving Reproductive Justice: Four Guiding Principles

“Big problems require big solutions.” –Ruth Wilson Gilmore85 85.Ruth Wilson Gilmore, Foreword to Dan Berger, The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States viii (2014).Show More

The ongoing reproductive control of Britney Spears exposes the persistent subordination of people with disabilities. Moreover, it shines a light on the urgent need for a long-overdue conversation: How does the United States finally confront its deplorable history of weaponizing reproduction to subjugate disabled people? As this Essay demonstrates, the reproductive oppression experienced by people with disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Indeed, the problems of reproductive oppression are complex and require an interdisciplinary and interprofessional response that engages all fields of expertise, including law, medicine, public health, social work, and organizing, among others.

Below, I propose four guiding principles that I believe are necessary for a jurisprudential and legislative approach to achieving reproductive justice for people with disabilities. First, achieving reproductive justice for disabled people requires activists, scholars, legal professionals, and policymakers to actively engage people with disabilities. Second, legal and policy responses must be developed and implemented to ensure people with disabilities’ rights to autonomy and self-determination are protected. Third, sexual and reproductive health services and information must be accessible and available for people with disabilities. Finally, people with disabilities and their families must be guaranteed rights, justice, and wellness for themselves and their families.

These guiding principles, which are grounded in the extant legal and social science scholarship, are foundational elements of more significant legal and policy changes that will need to be fleshed out in considerable detail. They are outlined in broad strokes to help facilitate a discussion among activists, legal professionals, scholars, and policymakers about the basic contours of a paradigm shift that supports the coalescence of reproductive justice and disability justice. Disrupting the longstanding systems that oppress disabled people’s reproductive freedom will undeniably require a multifaceted approach. However, the need for such action could not be more timely or clear.

A. Center People with Disabilities as Leaders

Both reproductive justice and disability justice underscore the importance of centering people from marginalized communities as leaders in developing and implementing laws and policies that impact them. Indeed, a fundamental aspect of justice-based approaches is “listening to, engaging, and developing affected communities.”86 86.Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 338 (2015) (describing the importance of actively engaging socially marginalized communities to address inequities).Show More According to Sins Invalid, “By centering the leadership of those most impacted, we keep ourselves grounded in real-world problems and find creative strategies for resistance.”87 87.Sins Invalid,supra note 75, at 23.Show More Centering disabled people as leaders is also consistent with the disability community’s mantra, “nothing about us, without us,” which emphasizes that people with disabilities should be actively involved in legal and policy efforts that affect them.88 88.James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment 3 (1998).Show More Undeniably, when the voices of marginalized communities, including people with disabilities, are centered, solutions that benefit all members of society are conceived.

Cross-movement organizing is an important aspect of disrupting the reproductive oppression of disabled people. Historically, there have been significant tensions—particularly concerning issues of prenatal genetic testing for markers of disability and abortion on grounds of fetal disability—between the disability rights and reproductive rights movements.89 89.Bagenstos, supra note 43, at 280–81.Show More However, as the Center for Reproductive Rights notes, “[t]he cost of ignoring tensions between the disability rights and reproductive rights movements is high.”90 90.Center for Reproductive Rights, Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement 2 (2017), https://reproductiverights.org/wp-content/uploads/‌2020/12/Disability-Briefing-Paper-FINAL.pdf [https://perma.cc/52GS-T2NV].Show More Accordingly, the Center for Reproductive Rights intentionally developed partnerships with disability rights groups in an effort to begin bridging the gap between the movements.91 91.See id. at 1–2.Show More These discussions are an important reminder that the movements must work collectively to confront the subjugation of disabled people’s reproductive freedom, and that intentionally including people with disabilities is critical to developing legal and policy responses.

Accordingly, the first guiding principle to achieving reproductive justice for disabled people requires activists, scholars, legal professionals, and policymakers to actively engage people with disabilities, especially disabled people of color and LGBTQ+ disabled people, in leading legal and policy responses to address reproductive oppression. Such engagement will require an understanding of and respect for disabled people sharing their lived experiences and should elevate people with disabilities to leadership positions within movements. Because disabled people are the experts of their lives, centering them will lead to legal and policy responses that are disability-competent and address the actual reproductive needs of people with disabilities.

As previously explained, centering disabled people as leaders should also lead to cross-movement organizing and a broader effort to foster alliances and grow partnerships among the impacted communities. Cross-movement solidarity will produce progress toward specific policy goals and increase and enhance the dignity of people who can value one another’s shared humanity. Practically, this means that reproductive justice activists must make concerted efforts to include disabled people in their work. Similarly, disability rights and justice activists must recognize the diversity of the disability community and ensure that disabled people from marginalized communities hold leadership roles within the movements. To achieve reproductive justice, disabled people, especially disabled people of color and LGBTQ+ people, must be centered in all legal and policy efforts.

B. Protect Autonomy and Self-Determination

As Britney Spears’s heartbreaking ordeal exposes, people with disabilities are often denied bodily autonomy and self-determination, which in turn can result in reproductive oppression. Constitutional doctrine relating to abortion is rooted in a principle of autonomy.92 92.See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev.858, 876 (1993) (“The language of autonomy has provided the central rationale for protecting individual women’s control over the abortion decision.”).Show More Specifically, constitutional protections of abortion rights are rooted in the guarantee of “liberty” in the Due Process Clause of the Fourteenth Amendment.93 93.Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding [in Roe v. Wade] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages . . . that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”).Show More Indeed, the Supreme Court of the United States has held that the liberty protected by the U.S. Constitution involves freedom in making “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”94 94.Id. at 851.Show More Likewise, a cornerstone of the disability rights movement is autonomy.95 95.Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 795 (2007) (“[P]aternalism has historically been one of the most significant contributors to the disadvantage people with disabilities experience. Non-disabled parents, teachers, doctors, rehabilitation counselors, employers, and others have arrogated to themselves the prerogative to decide what is best for people with disabilities. In so doing, they have deprived people with disabilities of opportunities to work and participate in the community. They have denied people with disabilities the autonomy that consists in making one’s own choices. And they have denied people with disabilities the dignity of risk— the opportunity to develop their skills, test them in the world, and succeed or fail according to their talents.” (internal quotation marks omitted)).Show More Indeed, disabled people have continuously fought against paternalism and the notion that other people—namely, family members and professionals—are best equipped to make decisions for disabled people.96 96.Charlton, supra note 88, at 3 (“Control has universal appeal for [disability rights movement] activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death.”)Show More

Guardianship, also known as conservatorship in some states, is a draconian and antiquated system that has existed for centuries and robs disabled people of autonomy and self-determination.97 97.Candida Moss, The Romans, the Supreme Court, and Britney Spears—Conservatorship Abuse Has Been Happening for 2000 Years, The Daily Beast (June 26, 2021), https://www.thedailybeast.com/britney-spears-the-romans-and-the-supreme-court-conservatorship-abuse-has-been-happening-for-2000-years [https://perma.cc/7UJL-389G] (tracing the history of guardianship to Roman law).Show More According to disability justice advocates:

While the law varies from state to state, guardianship orders routinely authorize third parties to make decisions about the most personal and important decisions in an individual’s life—choices that impact the person’s own body and reproductive health; how and where they receive medical, psychiatric, and psychological treatment; how the money and resources they work to earn are spent; and even with whom they associate.98 98.Ctr. for Pub. Representation, Statement from Disability Justice and Supported Decision-Making Advocates: Britney Spears Spotlights the Need for Change Now (June 25, 2021), https://supporteddecisions.org/2021/06/25/britney-spears/ [https://perma.cc/SKK5-2HKH].Show More

Notably, like Britney Spears, many people under guardianship are forced to use contraception to prevent pregnancy.99 99.Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation(July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ [https://perma.cc/Q9WD-SSCC].Show More According to the National Council on Disability, an estimated 1.3 million people with disabilities currently have guardians.100 100.Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination 17 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_‌Report_Accessible.pdf [https://perma.cc/D8WG-5HBX].Show More

Although “[t]he guardianship system is designed as a last resort, applied only when an individual lacks capacity to make decisions,” there is “reason to believe that guardianships are imposed on many individuals without sufficient evidence of their decision-making incapacity and that, in some cases, disability alone appears to be used as a sufficient justification for the imposition of guardianship.”101 101.Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 Pa. St. L. Rev. 1111, 1117 (2013).Show More Consequently, the second guiding principle for achieving reproductive justice for disabled people requires the development and implementation of legal and policy responses that ensure people with disabilities’ autonomy and self-determination are protected. For example, disability rights advocates are pushing states to implement supported decision-making as a least restrictive alternative to guardianship.102 102.Ctr. for Pub. Representation, U.S. Supported Decision-Making Laws, https://supported‌decisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ [https://perma.cc/L58P-TTEY] (last visited Sept. 2, 2021) (listing states that have implemented supported decision-making).Show More Broadly, supported decision-making provides people with disabilities greater autonomy in their choices while receiving assistance from people whom they choose and trust.103 103.Ctr. for Pub. Representation, About Supported Decision-Making, https://supported‌decisions.org/about-supported-decision-making/ [https://perma.cc/KG45-F327] (last visited June 25, 2021).Show More It “does not require court involvement and can be coupled with other legal tools, such as powers of attorney and advance health care directives, that promote self-determination and autonomy.”104 104.Ctr. for Pub. Representation, supra note 98.Show More In addition to states enacting supported decision-making, efforts are needed to thwart the “school-to-guardianship pipeline,” whereby schools encourage parents to attain guardianship of their children once they reach the age of majority.105 105.Nat’l Council on Disability, Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities 29–36 (2019), https://ncd.gov/sites/default/files/NCD_Turning-Rights-into-Reality_508_0.‌pdf [https://perma.cc/H2PR-X7Y7].Show More In sum, to achieve reproductive justice, legal and policy efforts must protect the autonomy and self-determination of people with disabilities, including ensuring that they receive the least restrictive supports and abolishing guardianship.

C. Ensure Sexual and Reproductive Health Services and Information Are Accessible and Available to People with Disabilities

As described in Part II, disabled people experience a range of barriers to sexual and reproductive health services and information, often resulting in inadequate access and adverse outcomes.106 106.See supra Section II.B.Show More Although federal disability laws, including the Americans with Disabilities Act (“ADA”),107 107.Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.Show More Section 504 of the Rehabilitation Act of 1973 (“Section 504”),108 108.Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796.Show More and Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”)109 109.Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a); 45 C.F.R §§ 92.102–105.Show More mandate that healthcare providers be accessible and prohibit disability-based discrimination, these laws are often violated.110 110.Powell, supranote 73, at 625–27 (describing federal disability laws’ application to matters concerning reproductive justice).Show More Moreover, disabled people often do not have access to adequate sexual and reproductive health information, such as sexuality education.111 111.Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53, 57–58 (2016) (explaining the implications of disabled people not receiving sexuality education).Show More Without comprehensive information, people with disabilities are unable to make informed decisions about their reproductive wellbeing. Further, because disabled people are more likely to be poor and receive public benefits, policies such as the Hyde Amendment, which bars the use of federal Medicaid funds for abortion care,112 112.SeeHyde Amendment Codification Act, S. 142, 113th Cong. (2013) (originally passed in 1977);Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found.(Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/NT7W-QL6W].Show More often inhibit their access to comprehensive sexual and reproductive health services.113 113.Rocking the Cradle,supranote 53, at 178 (noting that “Medicaid and Medicare [are] the primary health insurers for people with disabilities”).Show More

As such, the third guiding principle for achieving reproductive justice for disabled people necessitates ensuring that sexual and reproductive health services and information are accessible and available. Greater compliance with and enforcement of existing legal protections are urgently needed to ensure reproductive justice for people with disabilities. To that end, the United States Departments of Justice (DOJ) and Health and Human Services’ Office for Civil Rights (OCR) should prioritize the reproductive rights of people with disabilities, such as by investigating alleged violations of disability-based discrimination by reproductive health providers and enforcing the law as necessary.

Disabled people also need access to comprehensive and accessible information about sexuality and reproduction. For example, existing research indicates that people with disabilities may be at increased risk of exposure to HIV/AIDS due in part to limited access to education and information about prevention.114 114.Nora Ellen Groce et al., HIV Issues and People with Disabilities: A Review and Agenda for Research, 77 Soc. Sci. & Med. 31–37 (2013) (analyzing research about the intersection of HIV/AIDS and people with disabilities and calling for greater attention to the topic).Show More For people with intellectual disabilities, not receiving sexual education has led to high rates of sexually transmitted infections and sexual assaults, along with limited ability to report abuses because of lack of knowledge.115 115.Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sexuality & Disability 113–16 (2011).Show More

Further, a health justice approach is needed, recognizing that the social determinants of health impact access to sexual and reproductive health services and information.116 116.See generallyBenfer, supra note 86 (explaining the social determinants of health and the health justice framework).Show More Developing and implementing laws and policies that are consistent with health justice will allow for addressing factors such as poverty and transportation and how they affect disabled people’s access to sexual and reproductive health services and information. Hence, by addressing the social determinants of health, people will have greater access to those services and information.

D. Guarantee Rights, Justice, and Wellness for People with Disabilities and Their Families

Finally, people with disabilities and their families encounter numerous laws and policies that threaten their rights, justice, and wellness. For example, consider a parent with a physical disability who is unemployed and receives monthly Supplemental Security Income (“SSI”) benefits of $794.117 117.Soc. Sec. Admin., SSI Federal Payment Amounts for 2021, https://www.ssa.gov/oact/‌cola/SSI.html [https://perma.cc/DW5R-6MY3] (last visited July 20, 2021).Show More She also receives Medicaid, which pays for in-home personal care assistants. Although she would like to work, at least part-time, draconian rules proscribe that she will lose her SSI benefits if she earns more than $1,310.118 118.Soc. Sec. Admin., Substantial Gainful Activity, https://www.ssa.‌gov/oact/cola/sga.html [https://perma.cc/9YWP-XS5G] (last visited September 2, 2021).Show More Since Medicaid eligibility in her state is tied to receipt of SSI benefits, she will also lose Medicaid and needed in-home supports. Thus, stringent federal and state rules force this mother to live in poverty.

Reproductive justice should not depend on where people live, how much they make, or who they are. And yet, as the above narrative illustrates, all too often these factors infringe on people with disabilities’ reproductive justice. For example, for people with disabilities, especially disabled parents, poverty is a persistent issue that directly affects access to housing, food, and other basic necessities needed for people’s wellbeing.119 119.Rocking the Cradle,supra note 53, at 202 (“[T]he most significant difference between parents with disabilities and parents without disabilities is economic . . . .”).Show More Although many people with disabilities receive government benefits, these benefit programs often keep people in poverty. Antiquated rules and restrictions force some people with disabilities to choose between creating families and receiving necessary income assistance.120 120.While marriage is certainly not required to form families, it should be available to people with disabilities the same as it is for nondisabled people. However, strict asset programs prevent disabled people from marrying. See Waterstone, supra note 27, at 549 n. 132.Show More Poverty is also a persistent issue because of high rates of unemployment among disabled people. U.S. Census Bureau data shows that compared to nondisabled people, people with disabilities have lower rates of employment, lower median annual earnings, and higher rates of poverty.121 121.U.S. Census Bureau, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status, https://data.census.gov/‌cedsci/table?t=Disability&tid=ACSST1Y2019.S1811&hidePreview=true&vintage=2018 [https://perma.cc/6JFJ-DATH] (last visited July 11, 2021).Show More

People with disabilities, especially disabled people of color and LGBTQ+ people, often additionally contend with discriminatory legal and social service systems that separate them from their families.122 122.See Section I.B supra (noting that disabled parents have disproportionate rates of child welfare system involvement and termination of parental rights).Show More For example, the child welfare system—more accurately known as the family policing system123 123.‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/9DMC-DQBL] (“Policing captures what this system does. It polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” (quoting Dorothy Roberts) (emphasis in original)).Show More—targets people of color and disabled parents using pathology, control, and punishment.124 124.See generallyRobyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism (forthcoming 2022) (on file with author) (arguing that child welfare system abolition is necessary to protect disabled parents and their children).Show More An estimated two-thirds of state child welfare system laws explicitly include parental disability, usually intellectual or psychiatric disabilities, as grounds for termination of parental rights.125 125.Rocking the Cradle,supra note 53, at 16.Show More Thus, in many states, disabled people are lawfully denied their right to raise children.

Accordingly, the fourth guiding principle recognizes that to achieve reproductive justice, people with disabilities and their families must be guaranteed rights, justice, and wellness for themselves and their families. Changing the income and asset rules that keep people with disabilities in poverty would enable them to have livable incomes and the families they desire. Employment opportunities similarly need to be expanded so that people with disabilities can work and earn livable wages. Further, parents with disabilities and their children must be able to live free from fear of unnecessary separation and have access to non-punitive supports and resources. Thus, the child welfare system, and other carceral systems, must be abolished to achieve true reproductive justice. Legal and policy solutions that reflect the fourth guiding principle will need to be comprehensive and transformative.

Conclusion

Britney Spears’s appalling experiences are a stark reminder that nearly 100 years after the infamous Buck v. Bell decision, reproductive freedom is still denied to far too many disabled people. Although forced sterilization of people with disabilities has waned over time, reproductive justice still has not been realized for all people with disabilities. Indeed, revelations about Britney Spears’s harrowing struggles show that the right to decide whether to have children is still not fully afforded to people with disabilities.

The reproductive oppression experienced by people with disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Accordingly, addressing the persistent reproductive oppression of people with disabilities will require us to transform our laws and policies radically. Informed by reproductive justice and disability justice frameworks, the four guiding principles set forth above provide a vision for transforming laws and policies to ensure reproductive justice for people with disabilities. This Essay seeks to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for such action could not be more timely or clear.

  1. * JD, PhD, Bruce R. Jacob Visiting Assistant Professor at Stetson University College of Law. Concepts from this Essay were presented during ReproAction’s webinar, “#FreeBritney? Respecting the Autonomy and Decision-Making of People with Disabilities,” on September 29, 2020. This Essay was supported by a generous research grant from the Stetson University College of Law. I extend my appreciation to Edson Abadia, Jr., for his critical research assistance.

  2. Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized’, Variety (June 23, 2021, 3:59 PM), https://variety.com/2021/music/‌news/britney-spears-full-statement-conservatorship-1235003940/ [https://perma.cc/QJ6Y-9UBH] (transcript of Spears’s June 23, 2021, statement to Los Angeles Superior Court Judge, Brenda Penny).

  3. Id. At the time of this writing, Britney Spears’s case is ongoing. On September 29, 2021, the court suspended Britney Spears’s father, James Spears, as his daughter’s conservator and temporarily replaced him with a new conservator. Joe Coscarelli, Julia Jacobs & Liz Day, Judge Frees Spears From Father’s Control (Oct. 2, 2021), https://www.nytimes.com/‌2021/09/29/arts/music/britney-spears-court-decision-conservatorship.html [https://perma.cc/9N3S-S8NA]. The court has scheduled a hearing for November 12, 2021, to determine whether the conservatorship should end. Id.

  4. Aswad, supra note 1.

  5. Id.

  6.  Consistent with disability rights and disability justice movements, this Essay acknowledges the importance of language in shaping how we think about disability and how ableism can pervade language choices as well as reflect and perpetuate disability-based subordination. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya (Feb. 27, 2021), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/HS2F-LJ2C]. To that end, I use person-first and identity-first language interchangeably (e.g., “parents with disabilities” and “disabled parents”) in recognition of the disability community’s diverse language preferences. See generally Dana S. Dunn & Erin E. Andrews, Person-First and Identity-First Language: Developing Psychologists’ Cultural Competence Using Disability Language, 70 Am. Psych. 255 (2015) (exploring the evolving language preferences among people with disabilities).

  7. See, e.g., @yooitsmo, Twitter (June 24, 2021, 11:58 AM), https://twitter.com/yooitsmo/‌status/1408092248265445387 [https://perma.cc/UX86-TLL3] (“I’m sorry but…Britney HAS to keep an [IUD] in under her conservatorship??? How is any of this legal/okay???”); Meghan McCain (@MeghanMcCain), Twitter (June 23, 2021, 9:14 PM), https://twitter.com/‌MeghanMcCain/‌status/1407869786156146689 [https://perma.cc/T7S7-3X6G] (“This goes beyond any normal courts, there should be human rights violations investigations. Britney Spears was held captive, out in the open and we gawked at her and didn’t listen. This is how we treat famous women. Thank God she didn’t kill herself. There is a rot in our culture”); Congresswoman Katie Porter (@katieporteroc), Twitter (June 24, 2021, 7:25 PM), https://twitter.com/katieporteroc/status/1408204566592561157 [https://perma.cc/‌AA53-C7WG] (“Every American—regardless of their gender identity or disability status—ought to be able to make decisions about their own bodies. #FreeBritney”).

  8. See, e.g., Imani Barbarin (@Imani_Barbarin), Twitter (June 24, 2021, 10:54 AM), https://twitter.com/Imani_Barbarin/status/1408076140028305422 [https://perma.cc/3W8S-DPTB] (“I don’t like the gaslighting that goes on when disabled people tell y’all that what’s happening with #FreeBritney is not at all unique. You just have a hierarchy of disability and a point at which you think someone is “too disabled” to care about.”); Sarah Lerner (@SarahLerner), Twitter (June 23, 2021, 6:42 PM), https://twitter.com/SarahLerner/status/‌1407831499164962817 [https://perma.cc/A8BU-TS75] (“Britney Spears being held under a 13-year conservatorship and being forced to keep her IUD in despite the fact that she wants another child is where disability rights and reproductive rights intertwine.”); Dr. Sherri G. (@onlymeindc), Twitter (June 24, 2021, 9:27 PM), https://twitter.com/onlymeindc/‌status/1408235268545519617 [https://perma.cc/UV6J-LU5J] (“The Britney Spears situation is most definitely a disability rights issue. The medical and social models of disability are clashing right in front of your eyes. One model boils us down to impairment through oppressive paternalism forcing us in the sick role and the other doesn’t.”); Eric Michael Garcia (@EricMGarcia), Twitter (June 23, 2021, 5:55 PM), https://twitter.com/EricMGarcia/‌status/1407819545394434051 [https://perma.cc/8BKP-PMAL] (“As always, it’s important to remember that #FreeBritney is a disability rights issue. If the state can do this to one of the most influential pop stars in my lifetime, think about what it can do to others.”).

  9. See infra Part I (contextualizing the United States’ history of the reproductive oppression of people with disabilities and the ways in which it persists today).

  10. Id.

  11. Zoe Brennan-Krohn & Rebecca McCray, Britney Spears’ Reproductive Freedom Is a Disability Rights Issue, ACLU (June 25, 2021), https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/ [https://perma.cc/KZ9E-75WS] (“Spears’ experience is part of a long history of people with disabilities—most often people of color—being robbed of the right to control their reproductive destinies.”); Nat’l LGBTQ Task Force, Queering Reproductive Justice: A Toolkit 5–7 (Zsea Beaumonis, Candace Bond-Theriault, Stacey Long Simmons & Sabrina Rewald eds., 2017), https://www.thetaskforce.org/wp-content/uploads/2017/03/Queering-Reproductive-Justice-A-Toolkit-FINAL.pdf [https://perma.cc/5L88-TMXB].

  12. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8

     

    Berkeley Women’s L.J. 122, 123–24 (1993) (“Only a few of the dozens of cases regarding involuntary sterilizations involve the sterilization of males. Therefore, sterilization practice is interwoven with the issue of control of female reproductive rights and, to some extent, of female sexual expression.”). But see In re Guardianship of Kennedy, 845 N.W.2d 707, 708–09 (Iowa 2014) (evaluating an appeal brought by a 21-year-old man with intellectual disabilities challenging the legality of a vasectomy his guardian had arranged for him without obtaining a court order); Renu Barton-Hanson, Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway?, 15 Med. L. Int’l 49, 57–58 (2015) (examining recent cases concerning sterilization of men with intellectual disabilities and noting the frequent justification as purportedly promoting sexual freedom).

  13. See Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. Louisville J. Fam. L. 947, 948, 953–54 (1993) (“The purpose of these laws was to protect and streamline society by preventing reproduction by those deemed socially or mentally inferior.”).

  14. 274 U.S. 200 (1927).

  15. Id. at 205; see also Stephen Jay Gould, Carrie Buck’s Daughter, 2 Const. Comment.

     

    331, 336 (1985) (asserting that Buck was not “feebleminded” but rather institutionalized to hide her rape).

  16. Buck, 274 U.S. at 205; Gould, supra note 14, at 334.

  17. Gould, supra note 14, at 333, 336; Buck, 274 U.S. at 205.

  18. Buck, 274 U.S. at 205–06; Gould, supra note 14, at 331.

  19. Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 104–05 (2008).

  20. Buck, 274 U.S. at 206–08.

  21. Id. at 207.

  22. Fresh Air, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 17, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/5KYD-Z79X].

  23. Fifteen years after Buck v. Bell was decided, the Supreme Court struck down an Oklahoma law requiring that people with two or more convictions for felonious offenses be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 536–37, 543 (1942). Although both Skinner and Buck concern involuntary sterilization statutes, Skinner’s analysis took a narrower focus, relating only to the punitive sterilization of criminals, thereby avoiding addressing the forced sterilization of people with disabilities. Id. at 542–43.

  24. Brooke Pietrzak, Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment, 17 Dev. Mental Health L. 1, 34–35 (1997).

  25. Id. at 35.

  26. Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981).

  27. President’s Comm. on Mental Retardation, OHD 74-21002, Silent Minority 33 (1974).

  28. Pietrzak, supra note 23, at 1–2. Although no known studies have systematically examined marriage laws as they apply to people with disabilities, scholars contend that these statutes continue to exist in some states. Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 548–49 (2014).

  29. See Vanessa Volz, Note, A Matter of Choice: Women with Disabilities, Sterilization, and Reproductive Autonomy in the Twenty-First Century, 27 Women’s Rts. L. Rep. 203, 207–08 (2006).

  30. Mary Moe is a pseudonym; Massachusetts General Law requires that informed consent proceedings for an abortion be kept confidential. Mass. Gen. Laws ch. 112, § 12R (2020).

  31. In re Guardianship of Mary Moe, 960 N.E.2d 350, 352 (Mass. App. Ct. 2012).

  32. Id. at 353 (quoting the family court’s decision).

  33. Id. (quoting the family court’s decision).

  34. Id. at 355.

  35. Daniel F. Gunther & Douglas S. Diekema, Attenuating Growth in Children with Profound Developmental Disability: A New Approach to an Old Dilemma, 160 Archives Pediatrics & Adolescent Med. 1013, 1014 (2006); Marcia H. Rioux & Lora Patton, Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence, in Critical Perspectives on Human Rights and Disability Law 243, 243–44 (Marcia H. Rioux, Lee Ann Basser & Melinda Jones eds., 2011).

  36. Gunther & Diekema, supra note 34; Rioux & Patton, supra note 34, at 244.

  37. The “Ashley Treatment”, Towards a Better Quality of Life for “Pillow Angels”, at 3, 12 (Mar. 17, 2012), http://pillowangel.org/Ashley%20Treatment.pdf [https://perma.cc/8E3Z-VCEQ] (the document is authored by: “Ashley’s Mom and Dad”).

  38. Id. at 10.

  39. Gunther & Diekema, supra note 34, at 1015.

  40. Rioux & Patton, supra note 34, at 244–45.

  41. Id. at 244.

  42. Amy Burkholder, Report: ‘Pillow Angel’ Surgery Broke Law, CNN (May 8, 2007), http://www.cnn.com/2007/HEALTH/05/08/ashley.ruling/index.html [https://perma.cc/Z8RD-LF78] (“Children’s Hospital, in acknowledging its error, said that beyond implementing changes to ensure that sterilization of disabled children doesn’t happen again without a court order, it will seek court approval for other procedures involved in the controversial growth attenuation therapy.”).

  43. Ed Pilkington & Karen McVeigh, ‘Ashley Treatment’ on the Rise Amid Concerns from Disability Rights Groups, The Guardian (Mar. 15, 2012) http://www.guardian.co.uk/society/‌2012/mar/15/ashley-treatment-rise-amid-concerns/ [https://perma.cc/B5WF-ENKY].

  44. Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 289 (2020).

  45. See Justine P. Wu et al., Female Sterilization Is More Common Among Women with Physical and/or Sensory Disabilities than Women Without Disabilities in the United States, 10 Disability & Health J. 400, 403 (2017); William Mosher et al., Contraceptive Use by Disability Status: New National Estimates from the National Survey of Family Growth, 97 Contraception 552, 555 (2018); Henan Li et al., Female Sterilization and Cognitive Disability in the United States, 2011–2015, 132 Obstetrics & Gynecology 559, 561 (2018).

  46. Beverly Horsburgh, Schrödinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 Cardozo L. Rev. 531, 572 (1996).

  47. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 Berkeley Women’s L.J. 122, 126 (1993).

  48. Id.

  49. Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14 Cardozo J.L. & Gender 319, 350 (2008).

  50. Robyn M. Powell, Susan L. Parish, Monika Mitra, & Eliana Rosenthal, Role of Family Caregivers Regarding Sexual and Reproductive Health for Women and Girls with Intellectual Disability: A Scoping Review, 64 J. Intell. Disability Rsch. 131, 132 (2020) (citing studies).

  51. Id. at 151 (citing studies).

  52. Monika Mitra, Linda M. Long-Bellil, Suzanne C. Smeltzer & Lisa I. Iezzoni, A Perinatal Health Framework for Women with Physical Disabilities, 8 Disability Health J.

     

    499, 499 (2015) (citing studies)

    ;

    Lesley A. Tarasoff et al., Health of Newborns and Infants Born to Women with Disabilities: A Meta-Analysis, 146 Pediatrics, e20201635, at 2 (2020) (citing studies); Ilhom Akobirshoev, Susan L. Parish, Monika Mitra & Eliana Rosenthal, Birth Outcomes Among US Women with Intellectual and Developmental Disabilities, 10 Disability & Health J.

    406, 409

    tbl. 2

    (2017) (

    comparing maternal and infant outcomes of women with and without intellectual disabilities)

    .

  53. Robyn M. Powell, Erin E. Andrews & Kara B. Ayers, Becoming a Disabled Parent: Eliminating Access Barriers to Health Care Before, During, and After Pregnancy, 96 Tul. L. Rev. (forthcoming 2021) (manuscript at 2), https://papers.ssrn.com/sol3/papers.cfm?abstract‌_id=3808017 [https://perma.cc/3JD2-WD5G] (interviewing disabled parents about their experiences accessing health care services).

  54. See generally Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 15 (2012) [hereinafter “Rocking the Cradle”], https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/UB7C-XMMG] (“The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities—including intellectual and developmental, psychiatric, sensory, and physical disabilities—experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.”).

  55. Id. at 16.

  56. Id. at 265–300 (finding that over two-thirds of state dependency laws list parental disability as grounds for termination of parental rights).

  57. Robyn M. Powell, Family Law, Parents with Disabilities, and the Americans with Disabilities Act, 57 Fam. Ct. Rev. 37, 38 (2019) (“Indeed, parents with disabilities contend with substantial and persistent bias within the family law system, often threatening their custody and visitation rights.”).

  58. Laura Rizzo, Inside Britney Spears’ Custody Battle with Kevin Federline for Kids Sean Preston and Jayden, Life & Style Mag. (June 24, 2021), https://www.lifeandstylemag.com/‌posts/does-britney-spears-have-custody-of-kids-preston-and-jayden/ [https://perma.cc/EQY3-9KZ3] (explaining that Britney Spears had 30% custody at the time and was reportedly seeking 50%).

  59. Rocking the Cradle, supra note 53, at 153–66 (describing the ways prospective parents with disabilities experience discrimination within the foster care and adoption system).

  60. Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 328 (2013).

  61. Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social Change 4, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 [https://perma.cc/5SSG-QVSD] (last visited Oct. 1, 2021) [hereinafter “Reproductive Justice Briefing Book

    ”]

    .

  62. Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 73 (2017).

  63. Id. at 74.

  64.  Joan C. Chrisler, Introduction: A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Women & L. 1, 4 (2013).

  65. Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 75 (2011).

  66. Reproductive Justice Briefing Book

    ,

    supra note 60, at 4. (“Moving beyond a demand for privacy and respect for individual decision making to include the social supports necessary for our individual decisions to be optimally realized, this framework also includes obligations from our government for protecting women’s human rights. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.”).

  67. Id. (“Instead of focusing on the means—a divisive debate on abortion and birth control that neglects the real-life experiences of women and girls— the Reproductive Justice analysis focuses on the ends: better lives for women, healthier families, and sustainable communities.”).

  68. Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall 2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/C37U-GS88]; see also Luna & Luker, supra note 59, at 343 (“[R]eproductive justice is equally about the right to not have children, the right to have children, the right to parent with dignity, and the means to achieve these rights.”).

  69. Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325, 343 (2019).

  70. Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2240 (2018).

  71. Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 210 (2018).

  72. Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-Choice and Disability Rights Communities Together, 84 Contraception 541, 542 (2011).

  73. London, supra note 64, at 71–72.

  74. See, e.g., Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender & Soc. Just. 607, 628–31 (2021) (examining the history of eugenics in the United States and calling for a justice-based approach to address the role of ableism in eugenics); Bagenstos, supra note 43, at 279–86; Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev. 587, 627–30 (2017) (describing ways in which reproductive justice should be used to advocate for programs to support people with disabilities as a mechanism for reducing disability-based abortions); Mohapatra, supra note 68, at 325–27 (2019) (using the Zika virus to highlight the tensions between reproductive rights and disability rights); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 316–18 (2013) (proposing how organizing based on an intersectional analysis can help facilitate alliances between reproductive justice, racial justice, women’s rights, and disability rights activists to develop strategies to address reproductive genetic technologies); Roberts, supra note 67 (describing the failures of the reproductive rights movement to respond to the needs of marginalized communities, including people with disabilities, and calling for a reproductive justice framework instead).

  75. Bagenstos, supra note 43, at 285 (quoting Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 6 (1997)).

  76. Sins Invalid, Skin, Tooth, and Bone—The Basis of Movement is Our People: A Disability Justice Primer 59 (2d ed. 2019) (capital letters omitted).

  77. Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice 11 (2018).

  78. Sins Invalid, supra note 75, at 22–26 (capital letters omitted).

  79. Id. at 15, 47.

  80. Talila “TL” Lewis, Disability Justice Is an Essential Part of Abolishing Police and Prisons, Level (Oct. 7, 2020), https://level.medium.com/disability-justice-is-an-essential-part-of-abolishing-police-and-prisons-2b4a019b5730 [https://perma.cc/J5QL-9UNR].

  81. Sins Invalid, supra note 75, at 15.

  82. In 1989, Kimberlé Crenshaw coined the term “intersectionality” to help explain the oppression of African-American women. See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U. Chi. Legal F. 139, 140 (1989). Since then, intersectionality has been used to study how people who are members of multiple socially marginalized communities experience discrimination, including people with disabilities. See, e.g., Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209, 211–22 (2010).

  83. Piepzna-Samarasinha, supra note 76, at 11.

  84. Sins Invalid, Reproductive Justice is Disability Justice

    1,

    https://www.sinsinvalid.‌org/s/Reproductive_Justice_is_Disability_Justice.pdf [https://perma.cc/6XUF-Z8JL] (last visited June 26, 2021).

  85. Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L.

     

    15, 20–21 (2018).

  86. Ruth Wilson Gilmore, Foreword to Dan Berger, The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States viii (2014).

  87. Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 338 (2015) (describing the importance of actively engaging socially marginalized communities to address inequities).

  88. Sins Invalid,

     

    supra note 75, at 23.

  89. James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment 3 (1998).

  90. Bagenstos, supra note 43, at 280–81.

  91. Center for Reproductive Rights, Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement 2 (2017), https://reproductiverights.org/wp-content/uploads/‌2020/12/Disability-Briefing-Paper-FINAL.pdf [https://perma.cc/52GS-T2NV].

  92. See id. at 1–2.

  93. See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev.

     

    858, 876 (1993) (“The language of autonomy has provided the central rationale for protecting individual women’s control over the abortion decision.”).

  94. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding [in Roe v. Wade] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages . . . that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”).

  95. Id. at 851.

  96. Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 795 (2007) (“[P]aternalism has historically been one of the most significant contributors to the disadvantage people with disabilities experience. Non-disabled parents, teachers, doctors, rehabilitation counselors, employers, and others have arrogated to themselves the prerogative to decide what is best for people with disabilities. In so doing, they have deprived people with disabilities of opportunities to work and participate in the community. They have denied people with disabilities the autonomy that consists in making one’s own choices. And they have denied people with disabilities the dignity of risk— the opportunity to develop their skills, test them in the world, and succeed or fail according to their talents.” (internal quotation marks omitted)).

  97. Charlton

    ,

    supra note 88, at 3 (“Control has universal appeal for [disability rights movement] activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death.”)

  98. Candida Moss, The Romans, the Supreme Court, and Britney Spears—Conservatorship Abuse Has Been Happening for 2000 Years, The Daily Beast (June 26, 2021), https://www.thedailybeast.com/britney-spears-the-romans-and-the-supreme-court-conservatorship-abuse-has-been-happening-for-2000-years [https://perma.cc/7UJL-389G] (tracing the history of guardianship to Roman law).

  99. Ctr. for Pub. Representation, Statement from Disability Justice and Supported Decision-Making Advocates: Britney Spears Spotlights the Need for Change Now (June 25, 2021), https://supporteddecisions.org/2021/06/25/britney-spears/ [https://perma.cc/SKK5-2HKH].

  100. Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation

     

    (July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ [https://perma.cc/Q9WD-SSCC].

  101. Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination 17 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_‌Report_Accessible.pdf [https://perma.cc/D8WG-5HBX].

  102. Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 Pa. St. L. Rev. 1111, 1117 (2013).

  103. Ctr. for Pub. Representation, U.S. Supported Decision-Making Laws, https://supported‌decisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ [https://perma.cc/L58P-TTEY] (last visited Sept. 2, 2021) (listing states that have implemented supported decision-making).

  104. Ctr. for Pub. Representation, About Supported Decision-Making, https://supported‌decisions.org/about-supported-decision-making/ [https://perma.cc/KG45-F327] (last visited June 25, 2021).

  105. Ctr. for Pub. Representation, supra note 98.

  106. Nat’l Council on Disability, Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities

    29–36 (2019),

    https://ncd.gov/sites/default/files/NCD_Turning-Rights-into-Reality_508_0.‌pdf [https://perma.cc/H2PR-X7Y7].

     

  107. See supra Section II.B.

  108. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.

  109. Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796.

  110. Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a); 45 C.F.R §§ 92.102–105.

  111. Powell, supra note 73, at 625–27 (describing federal disability laws’ application to matters concerning reproductive justice).

  112. Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53, 57–58 (2016) (explaining the implications of disabled people not receiving sexuality education).

  113. See Hyde Amendment Codification Act, S. 142, 113th Cong. (2013) (originally passed in 1977); Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found. (Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/NT7W-QL6W].

  114. Rocking the Cradle, supra note 53, at 178 (noting that “Medicaid and Medicare [are] the primary health insurers for people with disabilities”).

  115. Nora Ellen Groce et al., HIV Issues and People with Disabilities: A Review and Agenda for Research, 77 Soc. Sci. & Med. 31–37 (2013) (analyzing research about the intersection of HIV/AIDS and people with disabilities and calling for greater attention to the topic).

  116. Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sexuality & Disability 113–16 (2011).

  117. See generally Benfer, supra note 86 (explaining the social determinants of health and the health justice framework).

  118. Soc. Sec. Admin., SSI Federal Payment Amounts for 2021, https://www.ssa.gov/oact/‌cola/SSI.html [https://perma.cc/DW5R-6MY3] (last visited July 20, 2021).

  119. Soc. Sec. Admin., Substantial Gainful Activity, https://www.ssa.‌gov/oact/cola/sga.html [https://perma.cc/9YWP-XS5G] (last visited September 2, 2021).

  120. Rocking the Cradle, supra note 53, at 202 (“[T]he most significant difference between parents with disabilities and parents without disabilities is economic . . . .”).

  121. While marriage is certainly not required to form families, it should be available to people with disabilities the same as it is for nondisabled people. However, strict asset programs prevent disabled people from marrying. See Waterstone, supra note 27, at 549 n. 132.

  122. U.S. Census Bureau, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status, https://data.census.gov/‌cedsci/table?t=Disability&tid=ACSST1Y2019.S1811&hidePreview=true&vintage=2018 [https://perma.cc/6JFJ-DATH] (last visited July 11, 2021).

  123. See Section I.B supra (noting that disabled parents have disproportionate rates of child welfare system involvement and termination of parental rights).

  124. ‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/9DMC-DQBL] (“Policing captures what this system does. It polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” (quoting Dorothy Roberts) (emphasis in original)).

  125. See generally Robyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism (forthcoming 2022) (on file with author) (arguing that child welfare system abolition is necessary to protect disabled parents and their children).

  126. Rocking the Cradle, supra note 53, at 16.