State Abortion Bans: Pregnancy as a New Form of Coverture

Introduction

In June, when the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization holding that there was no constitutional right to an abortion, the Court was hasty to disavow any likely political consequences. “We do not pretend to know,” wrote Justice Alito, “how our political system or society will respond to today’s decision overruling Roe and Casey.”1.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2279 (2022).Show More

Well, now we know. The evisceration of the constitutional right to reproductive self-determination has ignited an arms race in conservative states to see which can erect the most intransigent, punitive, and absolute bans against abortion. Seemingly overnight, laws criminalizing abortion were unveiled in nearly half the states, some banning abortion from the moment of conception, some threatening providers with prison sentences of up to ninety-nine years, many eschewing exceptions for cases of rape or incest.2.Sophie Putka & Amanda D’Ambrosio, Interactive Map: Abortion Bans and Penalties, MedPage Today (Sept. 19, 2022), https://www.medpagetoday.com/special-reports/exclusiv​es/99466 [https://perma.cc/4E9W-GPJP].Show More

One of the most striking things about these laws is their single-minded focus on the protection of fetal life to the exclusion of all other considerations. But life has never been an absolute value in our legal tradition. The common law doctrines foundational to American law would ordinarily allow women to terminate their pregnancies, as Anita Bernstein has pointed out.3.Anita Bernstein, The Common Law Inside the Female Body 6 (2019).Show More Whether looking at tort principles or criminal law principles, an individual has always been found to have the right of self-defense, the right to enjoy his castle, and the right to exclude others. Nor is there any principle that requires help or favors to another, even if the benefit would be great and the inconvenience minimal.

Some commentators, Bernstein included, have suggested that this reluctance to conceive of pregnant women as having the ordinary common law rights accorded to people in general suggests that women4.My use of the term “women” to refer to people born with wombs does not arise out of any disrespect towards non-binary people, trans men, or anyone else who might become pregnant, but simply because it follows from the historical arguments I am referencing. In other words, I am talking about “women” as a historically disadvantaged group. I do not mean to exclude anybody.Show More are treated as second-class citizens. This Essay argues that the disadvantage is more specific than that—that these laws impose a burden on the twin facts of being female and pregnant. The condition of pregnancy thus becomes a disability imposed by law on a particular stage of a woman’s life. In this way, what these restrictions resemble most is the common law doctrine of coverture.

Coverture was a marriage doctrine that originated in England during the Middle Ages and was imported to the colonies.5.See Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York 16–17 (1982) (noting that the presumption that “‘in the eyes of the law’ the husband and wife were one person—the husband”—had been operative since the Norman Conquest).Show More Under coverture, free women of status and property had their legal existence subsumed into that of their husband during their marriage.

Allow Sir William Blackstone to explain:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called . . . a feme-covert.6.William Blackstone, The Commentaries of the Laws of England 418 (Robert Malcolm Kerr, adapter, William Clowes & Sons, 4th ed. 1876).Show More

Practically speaking, this meant that during the existence of the marriage, the woman could not make contracts, dispose of property, or earn income without her husband’s consent. There is a direct parallel in the legal status of pregnant women, who now face a range of disabilities, from not being able to direct the course of their lives to being ineligible to receive treatment for cancer.7.See, e.g., Nicole T. Christian & Virginia F. Borges, What Dobbs Means for Patients with Breast Cancer, 387 New Eng. J. Med. 765, 765 (Aug. 27, 2022), https://www.nejm.o​rg/action/showPdf?downloadfile=showPdf&doi=10.1056/NEJMp2209249&loaded=true [htt​ps://perma.cc/LPF9-LS5M] (observing that after Dobbs, some patients “will be forced to carry a high-risk pregnancy and will have limited choices for treating their cancer. Making this compromise could result in worse oncologic outcomes and a greater risk of death for these patients—risks that apply to pregnant patients with any type of cancer”).Show More But instead of their legal existence being “covered” by their husband, it is now covered by the unborn child they carry, in whatever stage of development.

Effectively, fetal coverture doctrine holds that:

By [pregnancy], the [unborn] and [host woman] are one person in law; that is, the very being or legal existence of the woman is suspended during the [pregnancy], or at least is incorporated and consolidated into that of the [unborn]; under whose [cover] she performs everything; and is therefore called . . . a [feme-pregnant].8.Blackstone, supra note 6, at 418.Show More

Common law coverture imposed legal disabilities on married women but was justified as being advantageous to her in that her husband was expected to provide material and legal protection. There were also attempts to ameliorate these disabilities through courts of equity.9.See Basch, supra note 5, at 70–72 (describing how the economic disabilities of coverture in nineteenth-century America could be set aside through private contracts, including trusts, antenuptial agreements, and settlements.).Show More Fetal coverture doesn’t even provide the contractual benefits that marital coverture did. Far from sheltering a woman from certain liabilities, it opens up a whole new world of health risks and legal peril, dovetailing with an idea that, while all life is sacred, some lives are more sacred than others.

Just as marital coverture merged the identity of the woman into that of her husband, leaving only one person standing—the man10 10.For one of many formulations of this point, see, e.g., United States v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting) (observing that coverture “rests on the old common-law fiction that the husband and wife are one . . . [which] has worked out in reality to mean that . . . the one is the husband”).Show More—so fetal coverture merges the identity of the woman into that of her fetus.11 11.See Maggie Koerth & Amelia Thompson-Deveaux, Even Exceptions to Abortion Bans Pit a Mother’s Life Against Doctors’ Fears, FiveThirtyEight (June 30, 2022), https://fivethirtyeight.com/features/even-exceptions-to-abortion-bans-pit-a-mothers-life-agai​nst-doctors-fears/ [https://perma.cc/M42U-TEPW] (describing a woman with a life-threatening infection in her optic nerve who was denied treatment, even diagnostic tests, due to her pregnancy). The woman, who was eventually able to obtain an abortion, concluded, “It was just abundantly clear to me that everyone was prioritizing this eight-week embryo over me.” Id.Show More

Like a pregnancy, this paper proceeds in three parts. Part I reviews the barrage of new state laws restricting abortion, in some cases prohibiting it entirely, and imposing increasingly draconian penalties for its performance. Part II considers and rejects the rationale that these laws merely seek to preserve life. Our common law is full of situations in which one person has the right to take another’s life to protect themselves or their property, and people are under no obligation to provide gratuitous aid. In fact, Part III argues, these laws restricting abortion, far from enshrining a principle about the sanctity of life, simply set up a hierarchy of interests. Under this hierarchy, the interest of the unborn, except in the gravest extremity—which is still subject to interpretation or whim—trumps that of the woman. This is coverture for the 21st century.

I. A Frenzy of Prohibition

Since the Dobbs opinion was issued, there has been a frenzy of legislative activity as states scramble to promulgate new laws or revive old laws banning abortion.12 12.See Putka & D’Ambrosio, supra note 2.Show More Many states are now staging grounds for a cacophony of overlapping statutes. Nineteenth-century prohibitions have been exhumed and revived.13 13.See Gillian Brockell, States May Revive Abortion Laws From a Time When Women Couldn’t Vote, Wash. Post (July 31, 2022), https://www.washingtonpost.com/history/20​22/07/31/abortion-laws-womens-rights/ [https://perma.cc/M3L7-W52A]. West Virginia, for example, is attempting to resurrect an abortion ban from 1849, before West Virginia was even an independent state. See Off. of Att’y Gen. of W. Va., Memorandum Concerning the Effects of Dobbs v. Jackson Women’s Health Org. (June 29, 2022), https://ago.wv.gov/D​ocuments/Final%20Dobbs%20Memorandum.pdf [https://perma.cc/NY66-HQ88] (calling for the enforcement of W. Va. Code § 61-2-8, which classifies abortion as a felony punishable by three to ten years imprisonment and “covers persons who perform abortions and, at least arguably, women who seek them”).Show More Laws passed in the last several years, with the explicit aim of challenging Roe v. Wade, compete with trigger laws that were to go into effect upon Roe’s reversal. Finally, there is the advent of post-Dobbs laws hastily taking advantage of the new anti-abortion freedom, unfettered by any concerns about women’s constitutional rights. Texas, for example, can now enforce a 1925 law that bans abortions entirely,14 14.See Zach Despart, Texas Can Enforce 1925 Abortion Ban, State Supreme Court Says, Tex. Trib. (July 2, 2022), https://www.texastribune.org/2022/07/02/texas-abortion-1925-ban-supreme-court/ [https://perma.cc/K9W5-ZDFV].Show More a recent pre-Dobbs law outlawing abortions after six weeks, before most people even know they’re pregnant, and a new, even more draconian trigger law that bans abortions from the moment of fertilization except in cases to save the life of the mother.15 15.Eleanor Dearman, Here’s How Texas’ Abortion Trigger Law Works, Now that Roe v. Wade Has Been Overturned, Fort Worth Star-Telegram (June 24, 2022), https://www.star-telegram.com/news/state/texas/article262800748.html [https://perma.cc/7KFQ-JBJG].Show More

One thing is clear though: the prohibitions are becoming increasingly extreme, protecting the unborn at earlier and earlier stages of development, ratcheting up criminal penalties for violators, and choking off nearly all exceptions.

A. The Shape of New Laws

While at common law, abortion was not prohibited before “quickening,”16 16.Joanna L. Grossman, Women Are (Allegedly) People Too, 114 Nw. U. L. Rev. Online 149, 152 (2019).Show More and under Roe, the line was drawn at viability, the line of prohibition is now drawn at ever earlier stages of development. Laws that used to prohibit abortion after viability have been superseded by “heartbeat bills,” and those have been superseded in favor of bills forbidding abortion from fertilization on—before the presumptively fertilized egg has even had a chance to implant into the uterus.17 17.See Putka & D’Ambrosio, supra note 2.Show More (How legislatures expect to detect pregnancy at that stage is never explained, but it clearly paves the way for banning of the morning after pill, as well as certain forms of contraception). Under these laws, the entity being protected is not always a fetus or even an embryo that possesses the potential for human life, but an egg that may possibly have been fertilized—the potential of a potential.

Currently, twelve states—Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Texas, and Wisconsin—have passed laws banning abortion from the moment of conception.18 18.In passing a total ban, Arkansas and Missouri superseded earlier laws banning abortion after twelve and eight weeks, respectively. Id.; Arkansas, Ctr. for Reproductive Rts., https://reproductiverights.org/maps/state/arkansas/#:~:text=Arkansas%20has%20not%20repealed%20other,gestational%20age%2C%20and%20after%20viability [https://perma.cc/655P​-DJGB] (last visited Dec. 22, 2022); Gabrielle Hays, Missouri revisits 8-week abortion ban as laws are challenged nationwide, PBS News Hour (Sept. 24, 2021), https://www.pbs.org/n​ewshour/politics/missouri-revisits-8-week-abortion-ban-as-laws-are-challenged-nationwide [https://perma.cc/EK7H-VZCE].Show More An additional five states—Georgia, Iowa, Ohio, South Carolina, and Tennessee—have passed laws banning abortion from six weeks after a person’s last menstrual period.19 19.See Putka & D’Ambrosio, supra note 2.Show More

Hand in hand with these prohibitions are increasingly draconian penalties. Most states that have prohibited abortion have criminalized the procedure, making doctors who perform abortions guilty of felonies carrying sentences of up to two years (South Dakota), up to five years (Kentucky, Idaho, Oklahoma, North Dakota), up to ten years (Arkansas, Louisiana, Mississippi), up to twenty years (Missouri), up to fifteen years (Utah), and up to ninety-nine years years in prison (Alabama, Texas).20 20.See id.Show More Depending on the state, doctors also face fines ranging from $10,000 to $100,000 per incident.21 21.See id.Show More Of these, Texas takes the lead with criminal penalties for abortion providers of up to life or ninety-nine years in prison,22 22.See Tex. Health & Safety Code Ann. § 170A.004 (West 2021) (making the performance of an abortion a criminal offense, which “is a felony of the first degree if an unborn child dies as a result”); Tex. Penal Code Ann. § 12.32 (West 2021) (providing that anyone found guilty of a first-degree felony “shall be punished by imprisonment . . . for life or for any term of not more than 99 years or less than 5 years”).Show More not to mention $100,000 in civil penalties, and civil litigation bounties of at least $10,000 for anyone who wants to sue a provider.23 23.See Tex. Health & Safety Code Ann. § 171.208(b)(2), (3) (West 2021) (providing that a successful claimant will be awarded “statutory damages in an amount of not less than $10,000 for each abortion” as well as costs and attorney’s fees). The Code grants standing to “[a]ny person” who wants to enforce the law. This ban was operative as soon as a fetal heartbeat could be detected. See id. § 171.204.Show More

What is also striking is how many of these bans contain no exceptions for rape or incest survivors,24 24.Elaine Godfrey, The GOP’s Strange Turn Against Rape Exceptions, The Atlantic (May 4, 2022), https://www.theatlantic.com/politics/archive/2022/05/supreme-court-overturn-roe-v-wade-no-rape-incest-exceptions/629747/ [https://perma.cc/8788-BGS4].Show More fetal viability,25 25.See, e.g., Ramon Antonio Vargas, Louisiana Woman Carrying Unviable Fetus Forced to Travel to New York for Abortion, The Guardian (Sep. 14, 2022), https://www.thegu​ardian.com/us-news/2022/sep/14/louisiana-woman-skull-less-fetus-new-york-abortion [https​://perma.cc/T7H6-SZRU] (describing how a woman carrying a fetus with no skull was denied an abortion in her home state of Louisiana).Show More or the health of the woman.26 26.See Rebecca Boone & John Hanna, Abortion Bans, With No Exceptions: Republican-Led States Are Preparing for the End of Roe, Chi. Trib. (May 6, 2022), https://www.chica​gotribune.com/nation-world/ct-aud-nw-abortion-conservatives-supreme-court-20220506-zdf​jswn4cveora32emjhu3m4x4-story.html [https://perma.cc/NJ8P-4JLD].Show More It was not always thus: as Michele Goodwin and Mary Ziegler have observed, “[f]or decades, exceptions to abortion bans for rape and incest were a rare source of consensus.”27 27.Michele Goodwin & Mary Ziegler, Whatever Happened to the Exceptions for Rape and Incest?, The Atlantic (Nov. 29, 2021), https://www.theatlantic.com/ideas/archive/2021/11/​abortion-law-exceptions-rape-and-incest/620812/ [https://perma.cc/3HJP-MFRE].Show More No more. Currently, ten states have passed abortion prohibitions with no exceptions for rape and incest: Alabama, Arkansas, Kentucky, Louisiana, Missouri, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin.28 28.Tracking the States Where Abortion Is Now Banned, N.Y. Times (updated Nov. 23, 2022), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html [https://​perma.cc/Z2VY-H3BV]. Mississippi’s ban allows an exception for rape, but not incest. See id.Show More And even in states that have retained rape and incest exceptions, such as Idaho, North Dakota, South Carolina, and Wyoming, abortion providers prepared to take the chance that the exception will rarely be found applicable.29 29.See Megan Messerly, In States That Allow Abortion for Rape and Incest, Finding a Doctor May Prove Impossible, Politico (June 27, 2022), https://www.politico.co​m/news/2022/06/27/abortion-exceptions-doctor-shortage-00042373 [https://perma.cc/X26Z-NU3K] (quoting an abortion provider saying, “I don’t want to go to jail. I don’t want to break the law,” but with a patient who is pregnant after being raped, having “to say to her, ‘Sorry, you’re on your own.’ It’s just horrific.”).Show More As one article put it, “When it’s not clear what is legal, patients are often treated as though nothing is.”30 30.See Koerth & Thompson-Deveaux, supra note 11.Show More

For now, almost all of the bans allow an exception for abortions necessary to save the life of the mother.31 31.See, e.g., Ala. Code § 26-23H-4 (2021) (making a sole exception to its prohibition on abortion when “necessary in order to prevent a serious health risk to the unborn child’s mother”).Show More But the longevity of even this exception seems to be in question as arguments that “abortion is never medically necessary” gain traction.32 32.See Mary Ziegler, Why Exceptions for the Life of the Mother Have Disappeared, Atlantic (July 25, 2002), https://www.theatlantic.com/ideas/archive/2022/07/abortion-ban-life-of-the-mother-exception/670582/ [https://perma.cc/82CD-696T].Show More In the meantime, as most of the laws on their face do not define what they mean by “life-threatening” or what risks will be considered “serious,” and the consequences for getting it wrong are career-ending, many doctors hesitate to provide care even in emergency situations.

This puts doctors in an impossible position where the law is so unsettled and the penalties for violations are so steep that they fear to trust their own medical judgment.33 33.See Kate Zernike, Medical Impact of Roe Reversal Goes Well Beyond Abortion Clinics, Doctors Say, N.Y. Times (Sept. 10, 2022), https://www.nytimes.com/2022/09/10/us/abortion-bans-medical-care-women.html [https://perma.cc/2ZPZ-AC84] (quoting emergency physician in Houston saying, “We’re no longer basing our judgment on the clinical needs of the woman, we’re basing it on what we understand the legal situation to be.”).Show More In some cases, doctors have been forced to send dangerously ill patients home for fear that the patient might not yet be close enough to death to qualify for an abortion.34 34.See J. David Goodman & Azeen Ghorayshi, Women Face Risks as Doctors Struggle with Medical Exceptions on Abortion, N.Y. Times (July 20, 2022), https://www.nytimes.com/​2022/07/20/us/abortion-save-mothers-life.html [https://perma.cc/Z7W6-NUUL].Show More “Do I have to watch the patient bleed to death?” asked one maternal-fetal-medicine physician in Tennessee. “Do I have to call a lawyer before I save her life?”35 35.Jessica Winter, What the “Life of the Mother” Might Mean in a Post-Roe America, New Yorker (May 12, 2022), https://www.newyorker.com/science/annals-of-medicine/what-the-life-of-the-mother-might-mean-in-a-post-roe-america [https://perma.cc/HY8R-DJCP] (quoting Leilah Zahedi, a maternal-fetal-medicine physician in Tennessee).Show More

B. A Grim Future

Most of these laws are the subject of pitched battles in the courts; as a Politico journalist put it, “Abortion laws are changing on a near-daily basis amid a volley of petitions from Republican attorneys general asking courts to allow their state bans to take effect and abortion-rights advocates hoping to have the prohibitions stalled or blocked.”36 36.Megan Messerly, Abortion Laws by State: Legal Status of Abortion Changing Day-by-Day after Roe v. Wade Overturned, Politico (July 6, 2022), https://www.politico.com/n​ews/2022/07/06/abortion-laws-states-roe-overturned-00044127 [https://perma.cc/FBN2-W8​L4].Show More

The bans, most of them rushed and poorly considered, seem blinded to any considerations of women’s lives or health.37 37.See, e.g., Vivian Kane, Republican Lawmaker Just Now Realized Abortion Ban He Voted for Has Real-Life Consequences, MSN: The Mary Sue (Aug. 17, 2022), https://www.msn.com/en-us/news/us/republican-lawmaker-just-now-realized-abortion-ban-he-voted-for-has-real-life-consequences/ar-AA10MmSl [https://perma.cc/25VE-TYNE] (describing regret South Carolina legislator expressed after he realized that six-week ban he supported could lead to the death of miscarrying patients). The same lawmaker, Neal Collins, then voted for a ban from fertilization but with a 12-week rape and incest exception, saying that he knew the bill would be taken up by the state Senate. “Hopefully they will have medical expert testimony,” he said. Lydia O’Connor, Lawmaker Horrified by Consequences of Abortion Ban Votes for Even Stricter One, Huffington Post (Aug. 31, 2022), https://www.huffpost.com/entry/neal-collins-south-carolina-abortion-ban_n_630fd8cfe4b0da54bae566ce [https://perma.cc/NT58-LAC4].Show More Most have been drafted without any consultation with the relevant medical bodies or any real investigation of either expected or unexpected consequences.38 38.See, e.g., Christian & Borges, supra note 7, at 767 (opining, as oncologists, that difficult decisions in treatment of pregnant patients with breast cancer “should be informed by physicians’ extensive training and understanding of the scientific literature, and they should be made as part of the meaningful dialogue of a patient–physician relationship. They are not decisions that should be made by the state”); Rita Rubin, How Abortion Bans Could Affect Care for Miscarriage and Infertility, JAMA Network (June 28, 2022), https://jamanetwork.com/journals/jama/fullarticle/2793921 [https://perma.cc/XAH4-AG7J] (quoting OB-Gyn stating that “laws like abortion restrictions and bans are not based in science or evidence”).Show More They are single-minded and single-focused—ban now, and figure out all the details later.

But even these draconian laws are unlikely to represent the final word on prohibition. The anti-abortion movement is nothing if not ambitious, and in some states, legislators are discussing the possibility of laws that would prevent women from traveling to other states to seek abortions,39 39.See Cassidy Morrison, Red States Eye Restrictions on Interstate Travel for Abortion Services, Wash. Exam’r (June 30, 2022), https://www.washingtonexaminer.com/restoring-america/fairness-justice/red-states-eye-restrictions-on-interstate-travel-for-abortion-services [https://perma.cc/96KU-4H4Z] (reporting that “[c]onservative advocacy groups are teaming up with anti-abortion state lawmakers to draft legislation that would put an end to interstate travel for abortions, which could limit the remaining abortion options for women in states with stringent bans”).Show More banning the purchase of abortion drugs over the Internet or through telehealth consultations,40 40.Louisiana has a bill prohibiting abortion medication delivery in-state: “The bill makes it illegal to deliver abortion medication to a state resident ‘by mail-order, courier, or as a result of a sale made via the internet.’” See Is Abortion Illegal in Your State? A Comprehensive Guide, PBS NewsHour (June 25, 2022), https://www.pbs.org/newshour/nation/is-abortion-illegal-in-your-state-a-comprehensive-guide [https://perma.cc/T2KD-MY2F].Show More and limiting the use of the types of contraception that prevent implantation of a fertilized ovum.41 41.Id.Show More

The ultimate goal for the most committed of anti-abortion activists is fetal personhood, the idea that through constitutional amendment or statutes, a fetus (or embryo, or zygote) would have the same rights and privileges as any citizen.42 42.See Mary Ziegler, The Next Step in the Anti-Abortion Playbook Is Becoming Clear, N.Y. Times (Aug. 31, 2022), https://www.nytimes.com/2022/08/31/opinion/abortion-fetal-personhood.html [https://perma.cc/PV7A-YGEK].Show More If fetal personhood bills or constitutional amendments are passed, the likely outcome could be criminal penalties for women who obtain abortions (already contemplated in some quarters) and the narrowing or even abolition of an exception for the life of the mother. Since, at the current time, the arc of the moral universe bends towards extremism, this may be the future.

II. Is It Really About “Life”?

The justification given for the harshness of these bans is that they are in service to a higher principle: the sanctity of life. But this explanation, however lofty, does not wholly withstand scrutiny, both because it is not clear that these laws will result in a net gain of life and because our legal tradition has never considered life to be an inviolable principle.

A. The Empirical Argument

While most of these anti-abortion laws are justified on the basis that they will save lives, they will certainly not save the lives of pregnant women. It is uncontroverted that legal abortion is a very low-risk procedure, with a much lower fatality rate than pregnancy and childbirth, particularly in the United States, which “has the highest maternal mortality rate of all developed countries and is the only industrialized nation with a rising rate.”43 43.Am.’s Health Rankings, Executive Brief, Women and Children’s Health Report 6 (2021), https://assets.americashealthrankings.org/app/uploads/2021_ahr_hwc_executive_brief_final.pdf [https://perma.cc/6SCC-249B]; see also Warren M. Hern, Pregnancy Kills. Abortion Saves Lives, N.Y. Times (May 21, 2019), https://www.nytimes.com/2019/05/21/opini​on/alabama-law-abortion.html [https://perma.cc/SFB5-MVVY] (arguing that “[p]regnancy is dangerous; abortion can be lifesaving”).Show More

As the editors of the New England Journal of Medicine (“NEJM”) summarized it: “The latest available U.S. data from the Centers for Disease Control and Prevention and the National Center for Health Statistics are that maternal mortality due to legal induced abortion is 0.41 per 100,000 procedures, as compared with the overall maternal mortality rate of 23.8 per 100,000 live births.”44 44.The Editors, Lawmakers v. The Scientific Realities of Human Reproduction, 387 New Eng. J. Med. 367, 367 (June 24, 2022), https://www.nejm.org/doi/full/10.1056/NEJM​e2208288?query=recirc_mostViewed_railB_article [https://perma.cc/2YT6-6MUA].Show More This means that, in the United States, the risk of death from pregnancy and childbirth is literally fifty-eight times higher than from abortion.

It is also not a given that banning abortion will result in a net increase in babies being born. Many women will continue to obtain abortions, just not legally. This will not save any babies and will put a number of women in danger, as “[c]ommon complications of illegal procedures included injury to the reproductive tract requiring surgical repair, induction of infections resulting in infertility, systemic infections, organ failure, and death.”45 45.Id.Show More

Finally, criminalizing abortion procedures will put many women at risk who simply need miscarriage or other medical care. Miscarriages are a common pregnancy complication, affecting 10 to 20 percent of known pregnancies,46 46.See Lara Freidenfelds, The Myth of the Perfect Pregnancy: A History of Miscarriage in America 4–5 (2020).Show More and miscarriage management is often clinically indistinguishable from abortion.47 47.Winter, supra note 35 (explaining that abortion and miscarriage share the same objective of emptying the uterus and “employ the same tools and techniques”).Show More Laws that only make exceptions for the life of the mother or for “severe health risks” have already chilled medical decision-making to the point “where the health and safety of a pregnant person comes second to doctors’ own risks and fears.”48 48.Koerth & Thompson-Deveaux, supra note 11.Show More

A study undertaken by the NEJM of fetal and maternal medicine practitioners in Texas following passage of Senate Bill 8—the law that allowed for civil suits by anyone interested in a $10,000 bounty against abortion providers and anyone who aided an abortion seeker—found that some hospitals “no longer offer[ed] treatment for ectopic pregnancies implanted in cesarean scars,” which can be life-threatening;49 49.Whitney Arey et al., A Preview of the Dangerous Future of Abortion Bans—Texas Senate Bill 8, 387 New Eng. J. Med. 388, 389 (June 22, 2022), https://www.nejm.or​g/doi/full/10.1056/NEJMp2207423 [https://perma.cc/J3J5-6E3W]. In this paper, researchers interviewed twenty-five clinicians across Texas about how the Senate Bill had “affected their practice in general obstetrics and gynecology, maternal and fetal medicine (MFM), or genetic counseling” as well as twenty patients with medically complex pregnancies.Show More prohibited multifetal reduction, the procedure of selectively aborting one or more embryos so that the mother and the remaining fetuses have a better chance of survival;50 50.Id. at 389.Show More and generally delayed care as “treating clinicians—believing, on the basis of their own or their hospital’s interpretation of the law, that they could not provide early intervention—sent patients home, only to see them return with signs of sepsis.”51 51.Id.Show More The conclusion? “‘People have to be on death’s door to qualify for maternal exemptions to SB8.’”52 52.Id.Show More And by that point, it may be too late.

The dissenters in Dobbs poignantly asked, “How much risk to a woman’s life can a State force her to incur, before the Fourteenth Amendment’s protection of life kicks in?”53 53.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2336 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).Show More And even if the woman doesn’t risk death, “how much illness or injury can the State require her to accept, consistent with the Amendment’s protection of liberty and equality?”54 54.Id. at 2336–37.Show More

In sum, the utilitarian argument that draconian criminal sanctions for abortion will save lives is, at the very least, murky.

B. The Common Law Argument

Life has never been an absolute value in our legal tradition. People are allowed—even justified—to take someone else’s life in self-defense or in defense of others. The castle doctrine lets people use deadly force to repel intruders into their homes and “Stand Your Ground” laws allow people to kill an intruder without any need to retreat or deescalate the situation.55 55.See Nat’l Conf. of State Legis., Self-Defense and “Stand Your Ground,” (Feb. 9, 2022), https://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground​.aspx [https://perma.cc/8TCA-2DEF].Show More Concomitantly, there is no recognized duty to rescue or to provide life-saving care.

In her influential essay, A Defense of Abortion, the moral philosopher Judith Jarvis Thomson argues that abortion should be allowable even if one considers the fetus to be a person from the moment of conception.56 56.Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Affs. 47, 48 (1971).Show More She asks the reader to imagine waking up one day sharing their circulatory system with a famous violinist who is gravely ill and needs to use the reader’s kidneys.57 57.Id. at 48–49.Show More Even if unplugging the violinist would kill him, “the fact that for continued life that violinist needs the continued use of your kidneys does not establish that he has a right to be given the continued use of your kidneys,” she contends.58 58.Id. at 55.Show More If the reader chooses to allow the violinist to use her kidneys, “this is a kindness on your part, and not something he can claim from you as his due.”59 59.Id.Show More In fact, she concludes, “nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive.”60 60.Id. at 61–62 (emphasis in original).Show More

If a man’s home is his castle (in which he can pull up the drawbridge and repel invaders with molten lead if he so chooses), it is a foundational precept of Western thought that a person’s body is his most inviolable property.61 61.John Locke, Second Treatise of Government 19 (C.B. Macpherson ed., Hackett Publ’g Co. 1980) (1690) (“[E]very Man has a Property in his own Person. This no Body has any Right to but himself.”) (emphasis omitted).Show More One of my favorite formulations of the idea is by the 17th century pamphleteer, Richard Overton, who wrote, “to every individuall in nature is given an individuall property by nature, not to be invaded or usurped by any . . . for every one as he is himselfe, so he hath a selfe propriety, else could not be himselfe.”62 62.Richard Overton, An Arrow Against All Tyrants (1646) (emphasis omitted), reprinted in The English Levellers 54 (Andrew Sharp ed., 1998).Show More So why does a woman not have “a selfe propriety, else could not be herselfe”?

As one of the most widely recognized characteristics of property is the right to exclude others,63 63.Rosalind Pollock Petchesky, The Body as Property: A Feminist Re-Vision 389, in Conceiving the New World Order: The Global Politics of Reproduction (Faye D. Ginsburg & Rayna Rapp eds., 1995) (“Private property, then, refers not to the thing I have (piece of land, car, factory, uterus), but to my right to keep others out.”).Show More courts have consistently (at least since the end of slavery) rejected any legal attempt to make people submit to invasions or forced uses of their bodies. “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own body,” wrote the Supreme Court in 1891.64 64.Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252 (1891) (rejecting railroad’s claim to examine the extent of complainant’s injuries without her consent). The Court was shocked by the very idea. “To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass.” Id.Show More Courts have accordingly upheld a person’s choice not to donate bone marrow to a dying relative,65 65.McFall v. Shimp, 10 Pa. D. & C.3d 90, 91 (Ct. Com. Pl. 1978).Show More or even to submit to blood tests to establish donor compatibility between siblings, even though the relatives in need later died.66 66.See Curran v. Bosze, 566 N.E.2d 1319,1345 (Ill. 1990).Show More

“The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save another human being,” wrote the court in the bone marrow case.67 67.McFall v. Shimp, 10 Pa. D. & C.3d at 91.Show More To force people to do so, it concluded, would upend “the very essence of our free society.”68 68.Id.Show More

Anita Bernstein, in her book The Common Law Inside the Female Body, argues that “the common law furnishes a strong right to rid oneself of an unwanted occupant located in one’s interior.”69 69.Bernstein, supra note 3, at 6.Show More The common law’s design, she observes, enshrines a kind of “condoned self-regard,” an entitlement to put oneself first.70 70.Id. at 8.Show More This principle is unexceptionable when the self is a man with a gun protecting his home, but somehow becomes suspect when the self is a pregnant woman. “The common law has consistently had no trouble recognizing entitlements to repel an intruder with deadly force and to withhold favors or benevolence, but it has been less able to perceive a pregnant individual as a holder of these common law rights.”71 71.Id. at 160–61.Show More

The reasons why this should be so seem to rely on crude stereotypes about women. Marital coverture rested on a view of women as delicate, empty-headed, and in need of protection. Some scholars have made the connection between this ethos and the rhetoric of anti-abortion, which posits women as morally immature, ready to murder their babies in the name of convenience and selfishness without realizing that this goes against their inherently maternal natures.72 72.See, e.g., Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. Rev. 1464, 1535–36 (2009) (arguing that “antiabortion advocates asserting that abortion harms virtually all, or all, women explicitly rest their case on the propositions that women are naturally maternal and that abortion is therefore an unnatural, psychologically damaging act by definition.”).Show More

So what are women to do? Apparently, they are just supposed to do their time. During oral argument on Dobbs, Justice Barrett suggested that the safe haven laws, by which women could drop off newborns anonymously without legal repercussions, “took care of th[e] problem” of forced motherhood, a remark that resonated with her critics.73 73.Transcript of Oral Argument at 56–57, Dobbs v. Jackson Women’s Health, 142 S. Ct. 2228 (2022) (No. 19-1392), https://www.supremecourt.gov/oral_arguments/argument_tra​nscripts/2021/19-1392_5if6.pdf [https://perma.cc/S6LD-TJ6T]. Barrett added, “it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion.” So by her lights, the state is just requiring women to “go 15, 16 weeks more.” Id.Show More Kate McKinnon, one of the stars of Saturday Night Live, appeared as a smiling Barrett on the Weekly Update segment, taking a “buck up” tone to encourage women to do their requisite months of pregnancy. “Come on ladies, it’s just nine!” she wheedled. “It’s not even ten. So just do your nine, and then dump.”74 74.Weekend Update: Justice Amy Coney Barrett on Overturning Roe v. Wade, Saturday Night Live (May 8, 2022), https://snltranscripts.jt.org/2022/weekend-update-justice-amy-coney-barrett-on-overturning-roe-v-wade.phtml [https://perma.cc/32N9-G39Z].Show More

III. Fetal Coverture

A person’s body is said to be their most precious possession, precisely because it cannot be separated from the self. Yet in “a legal system that treats women the same as men at a formal level,”75 75.Bernstein, supra note 3, at 23.Show More anti-abortion laws effectively “cover” the body of the pregnant woman, whose legal existence becomes subsumed into that of the fetus.

In their Dobbs dissent, Justices Sotomayor, Kagan, and Breyer noted the one-sidedness of the majority’s argument—before the needs of the unborn, all of a woman’s circumstances, desires, and needs were secondary. What the ruling did not recognize, they wrote, “is that a woman’s freedom and equality are likewise involved. That fact—the presence of countervailing interests—is what made the abortion question hard, and what necessitated balancing.”76 76.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2323 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).Show More But the hard questions were of no interest to the Dobbs majority. Instead, wrote the dissenters, “[t]he constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).”77 77.Id.Show More

Without naming it, the dissenters had effectively identified the abandonment of the woman’s legal existence in favor of that of the unborn—the fetal coverture. And “eras[ing] the woman’s interest” is exactly what coverture has always done. As legal historian Norma Basch memorably put it, “The law created an equation in which one plus one equaled one by erasing the female one.”78 78.Basch, supra note 5, at 17.Show More These abortion bans impose a similar erasure on women by the fact of fertilization. This account explains the refusal, in many states, to allow for any exception at all. It’s not about balancing different interests and trying to reach a compromise, like viability—it’s about subsuming the interests of one into those of the other.

A. Common-Law Coverture

It is therefore useful to take a closer look at what marital coverture entailed. At common law, a free woman of status and property lost most of her civil legal rights upon marriage because she and her husband became “one person—the husband.”79 79.Id. at 42.Show More Coverture “imposed serious procedural and substantive disabilities on the wife,” explained Basch.80 80.Id. at 17.Show More “She could neither sue nor be sued in her own name, she was limited in making contracts and wills, and all of her personal property as well as the management of her real property went to her husband.”81 81.Id.Show More

The rationale was that coverture draped a protective mantle over the fairer sex,82 82.“Couverture” means “blanket” in French.Show More so that “even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit,” explained Sir William gallantly, “so great a favourite is the female sex of the laws of England.”83 83.Blackstone, supra note 6, at 432. This did not go over well even with nineteenth-century editors. According to Norma Basch, “one lawyer quoted by the New York Legal Observer noted that ‘such politeness on the part of the law is like amiability from a hyena.’” Basch, supra note 5, at 56 (quoting Facetiousness of the Law: Husband and Wife, N.Y. Legal Observer 156 (March 1845)).Show More Others might argue that the very fact that these laws were described as “protective, rather than restrictive, reflects an ideology that ingrained the weakness of womanhood as a most basic belief.”84 84.Maggie Cheu, Now and Then: How Coverture Ideology Informs the Rhetoric of Abortion, 22 Tex. J. Women & L. 113, 116 (2012).Show More

But no matter. Early American marriage laws followed this doctrine, in which “a wife’s subordinate status in the marital relationship was consistent with her inferior citizenship and inability to vote.”85 85.Brief of Historians of Marriage and the American Historical Association as Amici Curiae in support of Petitioners at 9 [hereinafter Historians of Marriage], Obergefell v. Hodges, 576 U.S. 644 (2015), (No. 14-556), 2015 WL 1022698.Show More But coverture was gradually abandoned during the 19th century, as “[w]omen’s rights advocates began to demand rights for wives to property and wages.”86 86.Id. at 17. See also Basch, supra note 5, at 15 (discussing the 19th century shift in married women’s legal status).Show More Each state, beginning with Mississippi in 1839, passed Married Women’s Property Acts, which “recognized the rights of a married woman to contract, to sue and be sued on her own, to manage and control her own property, to join the work force without her husband’s approval and to keep the money she earned.”87 87.Amy D. Ronner, Husband and Wife Are One—Him: Bennis v. Michigan as The Resurrection of Coverture, 4 Mich. J. Gender & L. 129, 134 (1996).Show More

The demise of coverture was controversial, however, as champions of the doctrine “contended that coverture was the essence of marriage.”88 88.Historians of Marriage, supra note 84, at 18 (noting that supporters of coverture argued that “subordination was ‘the price which female wants and weakness must pay for their protection.’”).Show More Accordingly, a number of legal disabilities trailed women well into the 20th century, including discrimination on the basis of sex to federal entitlements and veterans benefits89 89.Basch noted the “uncanny persistence” of coverture’s ideology “far beyond its Christian and common law origins.” Basch, supra note 5, at 15–16.Show More and the inability to open a credit card in their own names until 1974.90 90.See Erica Sandberg, The History of Women and Credit Cards, Bankrate (March 8, 2022), https://www.bankrate.com/finance/credit-cards/history-of-women-and-credit-cards/ [https://perma.cc/PJN4-LHFD] (noting that women only achieved the right to open a credit card in their own name with the passage of the Fair Credit Opportunity Act of 1974).Show More And most states didn’t end a husband’s exemption from prosecution for the rape of his wife until the 1980s.91 91.Historians of Marriage, supra note 84, at 18; see also Bernstein, supra note 3, at 107 (“Marital rape remained unpunishable through the first three-quarters of the twentieth century.”).Show More

B. 21st Century Coverture

Marital coverture was justified by two main strands of argument, both in nature contractual. The first was consent: The woman understood the arrangement and entered into it willingly (coverture was inoperable if she had been married by force or by trick).92 92.As parties to a contract, notes Basch, the man and wife “must have contracted in fact in order for the marriage to be valid.” Basch, supra note 5, at 48. See also Historians of Marriage, supra note 84, at 8–9 (“James Wilson, a Revolutionary-era jurist, saw consent—more than even cohabitation—as the essence of marriage.”).Show More The second was reciprocity: The woman gave up her agency, but she was protected—she couldn’t ordinarily be sued and her husband was expected to provide for her and their children. In addition, the husband was obliged to take on all of his wife’s debts incurred before marriage.93 93.Basch, supra 5, at 52.Show More

Fetal coverture does not even provide the contractual benefits that marital coverture did. First, it is not a consensual arrangement. An unwanted pregnancy, whether from accident, misfortune, or violence, is not something a woman embarks on willingly. Every time a woman has sex, she is not “consenting” to pregnancy.94 94.See Thomson, supra note 55, at 65 (contending that if people “have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.”).Show More Second, far from sheltering her from certain liabilities, pregnancy opens up a whole new world of health risks and legal peril. Women have been criminally charged with taking drugs while pregnant,95 95.See Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, 38 J. Health Pol’y & L. 299, 299 (2013) (identifying 413 cases between 1973 and 2005 “in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty”). The vast majority of these cases (84%) concerned women who were arrested and criminally charged with fetal endangerment for ingesting drugs during pregnancy. See id. at 315.Show More been denied medical care for even serious conditions,96 96.See, e.g., Koerth & Thomson-DeVeaux, supra note 11 (describing a woman with a life-threatening infection in her optic nerve who was denied treatment, even diagnostic tests, due to her pregnancy).Show More and sometimes been charged with homicide for having a miscarriage or a baby who dies shortly after birth.97 97.See Paltrow & Flavin, supra note 95, at 321–22 (identifying sixty-eight cases in which women who had experienced miscarriage, stillbirth, or infant death were charged under variations of the state’s homicide laws, including feticide and first-degree murder). See also Kirk Johnson, Harm to Fetuses Becomes Issue in Utah and Elsewhere, N.Y. Times (Mar. 27, 2004), https://www.nytimes.com/2004/03/27/us/harm-to-fetuses-becomes-issue-in-utah-and-elsewhere.html [https://perma.cc/XC2G-CMZG] (reporting case of woman charged with murder in Utah for refusing to undergo a caesarian section delivery while birthing twins, only one of whom survived).Show More

It is important to recognize, however, that coverture was not a detriment to all women; only to married women. There was “no legal disability that a person holds qua woman,” as Anita Bernstein observed.98 98.Bernstein, supra note 3, at 80.Show More “The condition that causes a woman to suffer detriment under the law is the combination of being female and then having married, rather than her birth into a subjugated gender.”99 99.Id. Naturally, it was not the same calculation for enslaved women, who were wholly subjugated. But coverture did manage to take the most privileged segment of the female population and render them a lot less autonomous.Show More

Equally, the condition that causes a woman to suffer detriment under this flood of new laws is the combination of being female and then becoming pregnant. Just as marital coverture didn’t reach all women, including widows, unmarried women of a certain age, and millions of enslaved women, so fetal coverture doesn’t reach everyone either. Infertile women, older women, and women who have had hysterectomies need not forfeit their legal existence to an unborn occupant sharing space in their body. It is the quality of being pregnant itself that imposes the legal disability.

But unlike marital coverture, where the husband could forfeit his seigneurial rights if he abandoned or stopped providing for his wife,100 100.See Basch, supra note 5, at 20 (“[T]he common law recognized some specific emergencies in which a married woman would need to act as if she were a single woman, such as when her husband ‘abjured the realm,’ or when he was judged to be civilly dead.”).Show More there is no way out of fetal coverture. As Mary Ziegler has noted, the anti-abortion movement has established a kind of hierarchy of innocence.101 101.Mary Ziegler, Abortion and the Law of Innocence, 2021 U. Ill. L. Rev. 865, 875 (2021).Show More Women will always be under suspicion, because they are the ones who have had sex, and even the most innocent—the rape or incest victims—are not without blemish. In contrast, “fetal life is supremely innocent, regardless of the surrounding circumstances, both because an unborn child lacks agency (and therefore responsibility for any decision) and because that child has not yet made any choices, good or bad, for which to be held accountable.”102 102.Id. at 867.Show More There is nothing the unborn can do to make them less deserving. Their dominance ends only upon their death, or their birth. It is literally a contract of adhesion.

This, then, is the true legal consequence of Dobbs and conservative state lawmaking. With nothing more than rational basis review, and only a Catholic-leaning, fundamentalist Court as a backstop, state anti-abortion bans seem like something from a pro-life fever dream. It may save the lives of some innocent babies. It may increase female mortality by much more than that. But what is not in doubt is that it represents a new form of coverture for women.

Fetal coverture will just be sprung on women the moment they become pregnant, sometimes without warning. And it will affect all people capable of becoming pregnant, even those who dearly wish to have a child, since it will limit their medical choices, put them at risk in the case of miscarriage, and force doctors to gamble with their own freedom and livelihood in order to provide needed care. After 50 years of being able to make advances in public life,103 103.And, to be clear, these advances have not brought about full equality. Women still make about 82 cents on the dollar compared to men, see Richard Fry, Kiley Hurst, Chris Baronavski, Alissa Scheller & Travis Mitchell, What is the Gender Wage Gap in Your Metropolitan Area? Pew Rsch. Ctr. (June 2, 2022), https://www.pewresearch.org/social-trends/interactives/wage-gap-calculator/ [https://perma.cc/DX2P-N49M], and only constitute approximately a quarter of the membership of Congress. See Carrie Blazina & Drew Desilver, A Record Number of Women Are Serving in the 117th Congress, Pew Rsch. Ctr. (Jan. 15, 2021), https://www.pewresearch.org/fact-tank/2021/01/15/a-record-number-of-women-are-serving-in-the-117th-congress/ [https://perma.cc/E2CJ-LRT7]. Disparities are even starker in corporate America, although they are improving compared to an even more dismal past. See Emma Hinchliffe, The Female CEOs on This Year’s Fortune 500 Just Broke Three All-Time Records, Fortune (June 2, 2021), https://fortune.com/2021/06/02/female-ceos-fortune-500-2021-women-ceo-list-roz-brewer-walgreens-karen-lynch-cvs-thasunda-brown-duckett-tiaa/a​mp/ [https://perma.cc/94AS-HY53]. (“[I]n 2021, the number of women running businesses in the Fortune 500 hit an all-time record: 41.”).Show More women’s equality will once again be contingent on circumstances beyond their control.104 104.See Adam Serwer, Alito’s Plan to Repeal the 20th Century, The Atlantic (May 3, 2022), https://www.theatlantic.com/ideas/archive/2022/05/alito-leaked-roe-opinion-abortion-supre​me-court-civil-rights/629748/ [https://perma.cc/ZEK9-XSMA] (“[T]he freedoms enjoyed by one generation can be stripped away by another.”).Show More

Conclusion

Arguably, these new laws, at their core, are not so much about fetal life as they are about a deep-seated commitment to putting women back in their place. They not only impose a temporary legal disability that may have lifelong consequences, but also seem to capture a desire for a world in which men were men and women had babies. Throughout most of Western history, married women of means, the most privileged of their sex, had no legal personhood separate from that of their husbands, who had complete dominion over their bodies, their occupations, and their money. As women’s rising political power caused marital coverture to be abandoned, Roe v. Wade signaled the start of a new era when women would have the power, as a constitutional right, to make (up to a point) their own decisions—about whether to have sex, whether to continue a pregnancy, and how to direct their lives. That era is at an end.

Fetal coverture reaches all people physically capable of becoming pregnant. It will not be limited solely to women seeking an abortion, but to all pregnant women with medical needs from miscarriage management to cancer treatment.105 105.And the burden will be greatest on women of color and women without financial resources.Show More Marital coverture was a dubious bargain. Fetal coverture is no bargain at all.

  1. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2279 (2022).
  2. Sophie Putka & Amanda D’Ambrosio, Interactive Map: Abortion Bans and Penalties, MedPage Today (Sept. 19, 2022), https://www.medpagetoday.com/special-reports/exclusiv​es/99466 [https://perma.cc/4E9W-GPJP].
  3. Anita Bernstein, The Common Law Inside the Female Body 6 (2019).
  4. My use of the term “women” to refer to people born with wombs does not arise out of any disrespect towards non-binary people, trans men, or anyone else who might become pregnant, but simply because it follows from the historical arguments I am referencing. In other words, I am talking about “women” as a historically disadvantaged group. I do not mean to exclude anybody.
  5. See Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York 16–17 (1982) (noting that the presumption that “‘in the eyes of the law’ the husband and wife were one person—the husband”—had been operative since the Norman Conquest).
  6. William Blackstone, The Commentaries of the Laws of England 418 (Robert Malcolm Kerr, adapter, William Clowes & Sons, 4th ed. 1876).
  7. See, e.g., Nicole T. Christian & Virginia F. Borges, What Dobbs Means for Patients with Breast Cancer, 387 New Eng. J. Med. 765, 765 (Aug. 27, 2022), https://www.nejm.o​rg/action/showPdf?downloadfile=showPdf&doi=10.1056/NEJMp2209249&loaded=true [htt​ps://perma.cc/LPF9-LS5M] (observing that after Dobbs, some patients “will be forced to carry a high-risk pregnancy and will have limited choices for treating their cancer. Making this compromise could result in worse oncologic outcomes and a greater risk of death for these patients—risks that apply to pregnant patients with any type of cancer”).
  8. Blackstone, supra note 6, at 418.
  9. See Basch, supra note 5, at 70–72 (describing how the economic disabilities of coverture in nineteenth-century America could be set aside through private contracts, including trusts, antenuptial agreements, and settlements.).
  10. For one of many formulations of this point, see, e.g., United States v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting) (observing that coverture “rests on the old common-law fiction that the husband and wife are one . . . [which] has worked out in reality to mean that . . . the one is the husband”).
  11. See Maggie Koerth & Amelia Thompson-Deveaux, Even Exceptions to Abortion Bans Pit a Mother’s Life Against Doctors’ Fears, FiveThirtyEight (June 30, 2022), https://fivethirtyeight.com/features/even-exceptions-to-abortion-bans-pit-a-mothers-life-agai​nst-doctors-fears/ [https://perma.cc/M42U-TEPW] (describing a woman with a life-threatening infection in her optic nerve who was denied treatment, even diagnostic tests, due to her pregnancy). The woman, who was eventually able to obtain an abortion, concluded, “It was just abundantly clear to me that everyone was prioritizing this eight-week embryo over me.” Id.
  12. See Putka & D’Ambrosio, supra note 2.
  13. See Gillian Brockell, States May Revive Abortion Laws From a Time When Women Couldn’t Vote, Wash. Post (July 31, 2022), https://www.washingtonpost.com/history/20​22/07/31/abortion-laws-womens-rights/ [https://perma.cc/M3L7-W52A]. West Virginia, for example, is attempting to resurrect an abortion ban from 1849, before West Virginia was even an independent state. See Off. of Att’y Gen. of W. Va., Memorandum Concerning the Effects of Dobbs v. Jackson Women’s Health Org. (June 29, 2022), https://ago.wv.gov/D​ocuments/Final%20Dobbs%20Memorandum.pdf [https://perma.cc/NY66-HQ88] (calling for the enforcement of W. Va. Code § 61-2-8, which classifies abortion as a felony punishable by three to ten years imprisonment and “covers persons who perform abortions and, at least arguably, women who seek them”).
  14. See Zach Despart, Texas Can Enforce 1925 Abortion Ban, State Supreme Court Says, Tex. Trib. (July 2, 2022), https://www.texastribune.org/2022/07/02/texas-abortion-1925-ban-supreme-court/ [https://perma.cc/K9W5-ZDFV].
  15. Eleanor Dearman, Here’s How Texas’ Abortion Trigger Law Works, Now that Roe v. Wade Has Been Overturned, Fort Worth Star-Telegram (June 24, 2022), https://www.star-telegram.com/news/state/texas/article262800748.html [https://perma.cc/7KFQ-JBJG].
  16. Joanna L. Grossman, Women Are (Allegedly) People Too, 114 Nw. U. L. Rev. Online 149, 152 (2019).
  17. See Putka & D’Ambrosio, supra note 2.
  18. In passing a total ban, Arkansas and Missouri superseded earlier laws banning abortion after twelve and eight weeks, respectively. Id.; Arkansas, Ctr. for Reproductive Rts., https://reproductiverights.org/maps/state/arkansas/#:~:text=Arkansas%20has%20not%20repealed%20other,gestational%20age%2C%20and%20after%20viability [https://perma.cc/655P​-DJGB] (last visited Dec. 22, 2022); Gabrielle Hays, Missouri revisits 8-week abortion ban as laws are challenged nationwide, PBS News Hour (Sept. 24, 2021), https://www.pbs.org/n​ewshour/politics/missouri-revisits-8-week-abortion-ban-as-laws-are-challenged-nationwide [https://perma.cc/EK7H-VZCE].
  19. See Putka & D’Ambrosio, supra note 2.
  20. See id.
  21. See id.
  22. See Tex. Health & Safety Code Ann. § 170A.004 (West 2021) (making the performance of an abortion a criminal offense, which “is a felony of the first degree if an unborn child dies as a result”); Tex. Penal Code Ann. § 12.32 (West 2021) (providing that anyone found guilty of a first-degree felony “shall be punished by imprisonment . . . for life or for any term of not more than 99 years or less than 5 years”).
  23. See Tex. Health & Safety Code Ann. § 171.208(b)(2), (3) (West 2021) (providing that a successful claimant will be awarded “statutory damages in an amount of not less than $10,000 for each abortion” as well as costs and attorney’s fees). The Code grants standing to “[a]ny person” who wants to enforce the law. This ban was operative as soon as a fetal heartbeat could be detected. See id. § 171.204.
  24. Elaine Godfrey, The GOP’s Strange Turn Against Rape Exceptions, The Atlantic (May 4, 2022), https://www.theatlantic.com/politics/archive/2022/05/supreme-court-overturn-roe-v-wade-no-rape-incest-exceptions/629747/ [https://perma.cc/8788-BGS4].
  25. See, e.g., Ramon Antonio Vargas, Louisiana Woman Carrying Unviable Fetus Forced to Travel to New York for Abortion, The Guardian (Sep. 14, 2022), https://www.thegu​ardian.com/us-news/2022/sep/14/louisiana-woman-skull-less-fetus-new-york-abortion [https​://perma.cc/T7H6-SZRU] (describing how a woman carrying a fetus with no skull was denied an abortion in her home state of Louisiana).
  26. See Rebecca Boone & John Hanna, Abortion Bans, With No Exceptions: Republican-Led States Are Preparing for the End of Roe, Chi. Trib. (May 6, 2022), https://www.chica​gotribune.com/nation-world/ct-aud-nw-abortion-conservatives-supreme-court-20220506-zdf​jswn4cveora32emjhu3m4x4-story.html [https://perma.cc/NJ8P-4JLD].
  27. Michele Goodwin & Mary Ziegler, Whatever Happened to the Exceptions for Rape and Incest?, The Atlantic (Nov. 29, 2021), https://www.theatlantic.com/ideas/archive/2021/11/​abortion-law-exceptions-rape-and-incest/620812/ [https://perma.cc/3HJP-MFRE].
  28. Tracking the States Where Abortion Is Now Banned, N.Y. Times (updated Nov. 23, 2022), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html [https://​perma.cc/Z2VY-H3BV]. Mississippi’s ban allows an exception for rape, but not incest. See id.
  29. See Megan Messerly, In States That Allow Abortion for Rape and Incest, Finding a Doctor May Prove Impossible, Politico (June 27, 2022), https://www.politico.co​m/news/2022/06/27/abortion-exceptions-doctor-shortage-00042373 [https://perma.cc/X26Z-NU3K] (quoting an abortion provider saying, “I don’t want to go to jail. I don’t want to break the law,” but with a patient who is pregnant after being raped, having “to say to her, ‘Sorry, you’re on your own.’ It’s just horrific.”).
  30. See Koerth & Thompson-Deveaux, supra note 11.
  31. See, e.g., Ala. Code § 26-23H-4 (2021) (making a sole exception to its prohibition on abortion when “necessary in order to prevent a serious health risk to the unborn child’s mother”).
  32. See Mary Ziegler, Why Exceptions for the Life of the Mother Have Disappeared, Atlantic (July 25, 2002), https://www.theatlantic.com/ideas/archive/2022/07/abortion-ban-life-of-the-mother-exception/670582/ [https://perma.cc/82CD-696T].
  33. See Kate Zernike, Medical Impact of Roe Reversal Goes Well Beyond Abortion Clinics, Doctors Say, N.Y. Times (Sept. 10, 2022), https://www.nytimes.com/2022/09/10/us/abortion-bans-medical-care-women.html [https://perma.cc/2ZPZ-AC84] (quoting emergency physician in Houston saying, “We’re no longer basing our judgment on the clinical needs of the woman, we’re basing it on what we understand the legal situation to be.”).
  34. See J. David Goodman & Azeen Ghorayshi, Women Face Risks as Doctors Struggle with Medical Exceptions on Abortion, N.Y. Times (July 20, 2022), https://www.nytimes.com/​2022/07/20/us/abortion-save-mothers-life.html [https://perma.cc/Z7W6-NUUL].
  35. Jessica Winter, What the “Life of the Mother” Might Mean in a Post-Roe America, New Yorker (May 12, 2022), https://www.newyorker.com/science/annals-of-medicine/what-the-life-of-the-mother-might-mean-in-a-post-roe-america [https://perma.cc/HY8R-DJCP] (quoting Leilah Zahedi, a maternal-fetal-medicine physician in Tennessee).
  36. Megan Messerly, Abortion Laws by State: Legal Status of Abortion Changing Day-by-Day after Roe v. Wade Overturned, Politico (July 6, 2022), https://www.politico.com/n​ews/2022/07/06/abortion-laws-states-roe-overturned-00044127 [https://perma.cc/FBN2-W8​L4].
  37. See, e.g., Vivian Kane, Republican Lawmaker Just Now Realized Abortion Ban He Voted for Has Real-Life Consequences, MSN: The Mary Sue (Aug. 17, 2022), https://www.msn.com/en-us/news/us/republican-lawmaker-just-now-realized-abortion-ban-he-voted-for-has-real-life-consequences/ar-AA10MmSl [https://perma.cc/25VE-TYNE] (describing regret South Carolina legislator expressed after he realized that six-week ban he supported could lead to the death of miscarrying patients). The same lawmaker, Neal Collins, then voted for a ban from fertilization but with a 12-week rape and incest exception, saying that he knew the bill would be taken up by the state Senate. “Hopefully they will have medical expert testimony,” he said. Lydia O’Connor, Lawmaker Horrified by Consequences of Abortion Ban Votes for Even Stricter One, Huffington Post (Aug. 31, 2022), https://www.huffpost.com/entry/neal-collins-south-carolina-abortion-ban_n_630fd8cfe4b0da54bae566ce [https://perma.cc/NT58-LAC4].
  38. See, e.g., Christian & Borges, supra note 7, at 767 (opining, as oncologists, that difficult decisions in treatment of pregnant patients with breast cancer “should be informed by physicians’ extensive training and understanding of the scientific literature, and they should be made as part of the meaningful dialogue of a patient–physician relationship. They are not decisions that should be made by the state”); Rita Rubin, How Abortion Bans Could Affect Care for Miscarriage and Infertility, JAMA Network (June 28, 2022), https://jamanetwork.com/journals/jama/fullarticle/2793921 [https://perma.cc/XAH4-AG7J] (quoting OB-Gyn stating that “laws like abortion restrictions and bans are not based in science or evidence”).
  39. See Cassidy Morrison, Red States Eye Restrictions on Interstate Travel for Abortion Services, Wash. Exam’r (June 30, 2022), https://www.washingtonexaminer.com/restoring-america/fairness-justice/red-states-eye-restrictions-on-interstate-travel-for-abortion-services [https://perma.cc/96KU-4H4Z] (reporting that “[c]onservative advocacy groups are teaming up with anti-abortion state lawmakers to draft legislation that would put an end to interstate travel for abortions, which could limit the remaining abortion options for women in states with stringent bans”).
  40. Louisiana has a bill prohibiting abortion medication delivery in-state: “The bill makes it illegal to deliver abortion medication to a state resident ‘by mail-order, courier, or as a result of a sale made via the internet.’” See Is Abortion Illegal in Your State? A Comprehensive Guide, PBS NewsHour (June 25, 2022), https://www.pbs.org/newshour/nation/is-abortion-illegal-in-your-state-a-comprehensive-guide [https://perma.cc/T2KD-MY2F].
  41. Id.
  42. See Mary Ziegler, The Next Step in the Anti-Abortion Playbook Is Becoming Clear, N.Y. Times (Aug. 31, 2022), https://www.nytimes.com/2022/08/31/opinion/abortion-fetal-personhood.html [https://perma.cc/PV7A-YGEK].
  43. Am.’s Health Rankings, Executive Brief, Women and Children’s Health Report 6 (2021), https://assets.americashealthrankings.org/app/uploads/2021_ahr_hwc_executive_brief_final.pdf [https://perma.cc/6SCC-249B]; see also Warren M. Hern, Pregnancy Kills. Abortion Saves Lives, N.Y. Times (May 21, 2019), https://www.nytimes.com/2019/05/21/opini​on/alabama-law-abortion.html [https://perma.cc/SFB5-MVVY] (arguing that “[p]regnancy is dangerous; abortion can be lifesaving”).
  44. The Editors, Lawmakers v. The Scientific Realities of Human Reproduction, 387 New Eng. J. Med. 367, 367 (June 24, 2022), https://www.nejm.org/doi/full/10.1056/NEJM​e2208288?query=recirc_mostViewed_railB_article [https://perma.cc/2YT6-6MUA].
  45. Id.
  46. See Lara Freidenfelds, The Myth of the Perfect Pregnancy: A History of Miscarriage in America 4–5 (2020).
  47. Winter, supra note 35 (explaining that abortion and miscarriage share the same objective of emptying the uterus and “employ the same tools and techniques”).
  48. Koerth & Thompson-Deveaux, supra note 11.
  49. Whitney Arey et al., A Preview of the Dangerous Future of Abortion Bans—Texas Senate Bill 8, 387 New Eng. J. Med. 388, 389 (June 22, 2022), https://www.nejm.or​g/doi/full/10.1056/NEJMp2207423 [https://perma.cc/J3J5-6E3W]. In this paper, researchers interviewed twenty-five clinicians across Texas about how the Senate Bill had “affected their practice in general obstetrics and gynecology, maternal and fetal medicine (MFM), or genetic counseling” as well as twenty patients with medically complex pregnancies.
  50. Id. at 389.
  51. Id.
  52. Id.
  53. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2336 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).
  54. Id. at 2336–37.
  55. See Nat’l Conf. of State Legis., Self-Defense and “Stand Your Ground,” (Feb. 9, 2022), https://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground​.aspx [https://perma.cc/8TCA-2DEF].
  56. Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Affs. 47, 48 (1971).
  57. Id. at 48–49.
  58. Id. at 55.
  59. Id.
  60. Id. at 61–62 (emphasis in original).
  61. John Locke, Second Treatise of Government 19 (C.B. Macpherson ed., Hackett Publ’g Co. 1980) (1690) (“[E]very Man has a Property in his own Person. This no Body has any Right to but himself.”) (emphasis omitted).
  62. Richard Overton, An Arrow Against All Tyrants (1646) (emphasis omitted), reprinted in The English Levellers 54 (Andrew Sharp ed., 1998).
  63. Rosalind Pollock Petchesky, The Body as Property: A Feminist Re-Vision 389, in Conceiving the New World Order: The Global Politics of Reproduction (Faye D. Ginsburg & Rayna Rapp eds., 1995) (“Private property, then, refers not to the thing I have (piece of land, car, factory, uterus), but to my right to keep others out.”).
  64. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252 (1891) (rejecting railroad’s claim to examine the extent of complainant’s injuries without her consent). The Court was shocked by the very idea. “To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass.” Id.
  65. McFall v. Shimp, 10 Pa. D. & C.3d 90, 91 (Ct. Com. Pl. 1978).
  66. See Curran v. Bosze, 566 N.E.2d 1319,1345 (Ill. 1990).
  67. McFall v. Shimp, 10 Pa. D. & C.3d at 91.
  68. Id.
  69. Bernstein, supra note 3, at 6.
  70. Id. at 8.
  71. Id. at 160–61.
  72. See, e.g., Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. Rev. 1464, 1535–36 (2009) (arguing that “antiabortion advocates asserting that abortion harms virtually all, or all, women explicitly rest their case on the propositions that women are naturally maternal and that abortion is therefore an unnatural, psychologically damaging act by definition.”).
  73. Transcript of Oral Argument at 56–57, Dobbs v. Jackson Women’s Health, 142 S. Ct. 2228 (2022) (No. 19-1392), https://www.supremecourt.gov/oral_arguments/argument_tra​nscripts/2021/19-1392_5if6.pdf [https://perma.cc/S6LD-TJ6T]. Barrett added, “it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion.” So by her lights, the state is just requiring women to “go 15, 16 weeks more.” Id.
  74. Weekend Update: Justice Amy Coney Barrett on Overturning Roe v. Wade, Saturday Night Live (May 8, 2022), https://snltranscripts.jt.org/2022/weekend-update-justice-amy-coney-barrett-on-overturning-roe-v-wade.phtml [https://perma.cc/32N9-G39Z].
  75. Bernstein, supra note 3, at 23.
  76. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2323 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).
  77. Id.
  78. Basch, supra note 5, at 17.
  79. Id. at 42.
  80. Id. at 17.
  81. Id.
  82. “Couverture” means “blanket” in French.
  83. Blackstone, supra note 6, at 432. This did not go over well even with nineteenth-century editors. According to Norma Basch, “one lawyer quoted by the New York Legal Observer noted that ‘such politeness on the part of the law is like amiability from a hyena.’” Basch, supra note 5, at 56 (quoting Facetiousness of the Law: Husband and Wife, N.Y. Legal Observer 156 (March 1845)).
  84. Maggie Cheu, Now and Then: How Coverture Ideology Informs the Rhetoric of Abortion, 22 Tex. J. Women & L. 113, 116 (2012).
  85. Brief of Historians of Marriage and the American Historical Association as Amici Curiae in support of Petitioners at 9 [hereinafter Historians of Marriage], Obergefell v. Hodges, 576 U.S. 644 (2015), (No. 14-556), 2015 WL 1022698.
  86. Id. at 17. See also Basch, supra note 5, at 15 (discussing the 19th century shift in married women’s legal status).
  87.  Amy D. Ronner, Husband and Wife Are One—Him: Bennis v. Michigan as The Resurrection of Coverture, 4 Mich. J. Gender & L. 129, 134 (1996).
  88. Historians of Marriage, supra note 84, at 18 (noting that supporters of coverture argued that “subordination was ‘the price which female wants and weakness must pay for their protection.’”).
  89. Basch noted the “uncanny persistence” of coverture’s ideology “far beyond its Christian and common law origins.” Basch, supra note 5, at 15–16.
  90. See Erica Sandberg, The History of Women and Credit Cards, Bankrate (March 8, 2022), https://www.bankrate.com/finance/credit-cards/history-of-women-and-credit-cards/ [https://perma.cc/PJN4-LHFD] (noting that women only achieved the right to open a credit card in their own name with the passage of the Fair Credit Opportunity Act of 1974).
  91. Historians of Marriage, supra note 84, at 18; see also Bernstein, supra note 3, at 107 (“Marital rape remained unpunishable through the first three-quarters of the twentieth century.”).
  92. As parties to a contract, notes Basch, the man and wife “must have contracted in fact in order for the marriage to be valid.” Basch, supra note 5, at 48. See also Historians of Marriage, supra note 84, at 8–9 (“James Wilson, a Revolutionary-era jurist, saw consent—more than even cohabitation—as the essence of marriage.”).
  93. Basch, supra 5, at 52.
  94. See Thomson, supra note 55, at 65 (contending that if people “have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.”).
  95. See Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, 38 J. Health Pol’y & L. 299, 299 (2013) (identifying 413 cases between 1973 and 2005 “in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty”). The vast majority of these cases (84%) concerned women who were arrested and criminally charged with fetal endangerment for ingesting drugs during pregnancy. See id. at 315.
  96. See, e.g., Koerth & Thomson-DeVeaux, supra note 11 (describing a woman with a life-threatening infection in her optic nerve who was denied treatment, even diagnostic tests, due to her pregnancy).
  97. See Paltrow & Flavin, supra note 95, at 321–22 (identifying sixty-eight cases in which women who had experienced miscarriage, stillbirth, or infant death were charged under variations of the state’s homicide laws, including feticide and first-degree murder). See also Kirk Johnson, Harm to Fetuses Becomes Issue in Utah and Elsewhere, N.Y. Times (Mar. 27, 2004), https://www.nytimes.com/2004/03/27/us/harm-to-fetuses-becomes-issue-in-utah-and-elsewhere.html [https://perma.cc/XC2G-CMZG] (reporting case of woman charged with murder in Utah for refusing to undergo a caesarian section delivery while birthing twins, only one of whom survived).
  98. Bernstein, supra note 3, at 80.
  99. Id. Naturally, it was not the same calculation for enslaved women, who were wholly subjugated. But coverture did manage to take the most privileged segment of the female population and render them a lot less autonomous.
  100. See Basch, supra note 5, at 20 (“[T]he common law recognized some specific emergencies in which a married woman would need to act as if she were a single woman, such as when her husband ‘abjured the realm,’ or when he was judged to be civilly dead.”).
  101. Mary Ziegler, Abortion and the Law of Innocence, 2021 U. Ill. L. Rev. 865, 875 (2021).
  102. Id. at 867.
  103. And, to be clear, these advances have not brought about full equality. Women still make about 82 cents on the dollar compared to men, see Richard Fry, Kiley Hurst, Chris Baronavski, Alissa Scheller & Travis Mitchell, What is the Gender Wage Gap in Your Metropolitan Area? Pew Rsch. Ctr. (June 2, 2022), https://www.pewresearch.org/social-trends/interactives/wage-gap-calculator/ [https://perma.cc/DX2P-N49M], and only constitute approximately a quarter of the membership of Congress. See Carrie Blazina & Drew Desilver, A Record Number of Women Are Serving in the 117th Congress, Pew Rsch. Ctr. (Jan. 15, 2021), https://www.pewresearch.org/fact-tank/2021/01/15/a-record-number-of-women-are-serving-in-the-117th-congress/ [https://perma.cc/E2CJ-LRT7]. Disparities are even starker in corporate America, although they are improving compared to an even more dismal past. See Emma Hinchliffe, The Female CEOs on This Year’s Fortune 500 Just Broke Three All-Time Records, Fortune (June 2, 2021), https://fortune.com/2021/06/02/female-ceos-fortune-500-2021-women-ceo-list-roz-brewer-walgreens-karen-lynch-cvs-thasunda-brown-duckett-tiaa/a​mp/ [https://perma.cc/94AS-HY53]. (“[I]n 2021, the number of women running businesses in the Fortune 500 hit an all-time record: 41.”).
  104. See Adam Serwer, Alito’s Plan to Repeal the 20th Century, The Atlantic (May 3, 2022), https://www.theatlantic.com/ideas/archive/2022/05/alito-leaked-roe-opinion-abortion-supre​me-court-civil-rights/629748/ [https://perma.cc/ZEK9-XSMA] (“[T]he freedoms enjoyed by one generation can be stripped away by another.”).
  105. And the burden will be greatest on women of color and women without financial resources.

The Small and Diversifying Network of Legal Scholars: A Study of Co-Authorship from 1980–2020

Introduction

This Essay reports the first comprehensive network analysis of legal scholars connected through co-authorship. If legal scholarship was ever a solitary activity, it certainly is not any longer. Co-authorship has become increasingly common over time, and scholarship is now mostly a collaborative endeavor.1.See infra Figure 1.Show More These collaborations are important for both scholars and for scholarship, and so understanding patterns of co-authorship is crucial for understanding how legal academia functions as a market for intellectual labor and for the product of that labor: legal scholarship.

The labor market for law professors functions in many respects like other markets for skilled labor, and scholarly collaboration creates several channels for professional advancement. Co-authorship can result in greater scholarly productivity,2.See infra Part I.Show More and social networks formed through co-authorship may provide information channels for scholars to learn about hiring opportunities at other schools and for those schools to collect first-hand information about a prospective hire’s value to the law school community. In these ways, co-authorship can help a scholar’s promotion, compensation, and lateral mobility.

But as social networks tend to reflect within-group affinities—along dimensions of race, gender, and class, for example—they may have disparate impacts on the career opportunities of legal scholars. And the differences generated by social networks may exacerbate any inequalities that led to the original underrepresentation of certain groups. For example, recent evidence indicates that female economists collaborate less often and generally within smaller networks than men and that this difference in co-authorship networks explains 18% of the gender research output gap.3.Lorenzo Ductor, Sanjeev Goyal & Anja Prummer, Gender and Collaboration, Rev. Econ. & Statistics 24–25 (2021), https://doi.org/10.1162/rest_a_01113 [https://perma.cc/PS4Z-KXAK].Show More

Beyond the interests of the professoriate and law schools themselves, there are consumers of legal scholarship. For these consumers, patterns of co-authorship matter for how they affect the substance of legal scholarship itself. These consumers include judges, legal practitioners, government officials, journalists, and law students. Law students are sometimes direct consumers of legal scholarship, but they are also frequently indirect consumers through the influence of legal scholarship on classroom pedagogy. Legal scholarship influences the views law professors express in the classroom, and it influences the content of course materials, such as law casebooks.4.In some cases, law school texts are based on methodological approaches that have been developed as legal scholarship. See, e.g., Robert Cooter & Thomas Ulen, Introduction to Law and Economics (5th ed. 2007).Show More

In this context, the factors affecting co-authorship relationships influence the process and outputs of knowledge production and the training of lawyers. The contours of the co-authorship network will affect which scholars influence the trajectory of legal scholarship and what gets taught in the classroom, whether scholarship reflects diverse viewpoints and methodological approaches, whether insights and methods migrate between areas of study, which areas of legal scholarship are active and which grow stale. Thus, the composition of the law professoriate and the legal scholarship it produces are partly a product of the network of legal scholars. The history of legal academia can be partly told in these terms, and the future of law and legal scholarship depends on the evolutionary path of that network.

Research on co-authorship in law has focused on the claim that legal scholarship is more frequently solo-authored compared with other disciplines.5.Tracey E. George & Chris Guthrie, Joining Forces: The Role of Collaboration in the Development of Legal Thought, 52 J. Legal Educ. 559, 561–568 (2002); Michael I. Meyerson, Law School Culture and the Lost Art of Collaboration: Why Don’t Law Professors Play Well with Others?, 93 Neb. L. Rev. 547, 548–549 (2014).Show More Professors Ginsburg and Miles documented an increase in the number of co-authored articles from 2000-2010, which they attribute to the emergence of empirical legal studies.6.Tom Ginsburg & Thomas J. Miles, Empiricism and the Rising Incidence of Coauthorship in Law, 2011 U. Ill. L. Rev. 1785, 1800–1812 (2011).Show More A little over ten years ago, Professors Edelman and George considered the network of legal co-authorship.7.Paul H. Edelman & Tracey E. George, Six Degrees of Cass Sunstein, 11 Green Bag 2d 19, 22–31 (2007).Show More But because there was no database available at the time suitable for computational network analysis, they focused only on identifying the one legal scholar—Cass Sunstein—who they placed at the center of the web of legal co-authorship relationships.8.Id. at 27–30.Show More It is only with the recent availability of large amounts of digitized text data that computational network analyses of legal scholarship has become possible. In general, computational social network analysis is only beginning to get a foothold in legal scholarship, and work on the connectedness of legal scholars is limited.9.See, e.g., Daniel Martin Katz, Joshua R. Gubler, Jon Zelner, Michael J. Bommarito II, Eric Provins, & Eitan Ingall, Reproduction of Hierarchy? A Social Network Analysis of the American Law Professoriate, 61 J. Legal Educ. 76 (2011) (discussing the network of legal scholars and its impact on legal developments); Milan Markovic, The Law Professor Pipeline, 92 Temp. L. Rev. 813 (2019) (exploring how professors’ intellectual and social networks relate to the advancement of their careers); Keerthana Nunna, W. Nicholson Price II & Jonathan Tietz, Hierarchy, Race & Gender in Legal Scholarly Networks, 75 Stan. L. Rev. (forthcoming 2023) (analyzing how hierarchy, race, and gender affect the acknowledgment sections of law review articles).Show More In this Essay, I report the first comprehensive evidence of co-authorship patterns and the network of legal scholars.

I explore how the network of legal scholars and patterns of co-authorship evolved from 1980–2020. I document dramatic growth in the network of legal scholars, and a much greater increase in co-authorship, such that the legal academy can be described as a “small world” that has become smaller over time. Legal scholars are a more diverse group than they were in the 1980s, and although legal scholars tend to coauthor with other scholars of the same gender and minority status, this tendency has declined over time.10 10.See infra Part IV.Show More There is also evidence legal scholars are increasingly finding coauthors outside their own institutions. Finally, I examine the ordering of authors’ names on coauthored papers. Many law journals have recently changed their citation convention for articles with more than two authors. Rather than listing only the first author’s name followed by “et al.”, they will include all the authors’ names in the first citation to the work. A concern with the “et al.” convention was the possibility that underrepresented members in the legal academy were less likely to be listed as the first author on co-authored papers, leading to underappreciation of their scholarly contributions. The evidence for this concern is mixed. I find that racial minorities make up a greater share of first authors on such articles than their proportion of authors overall. By contrast, women and lesbian, gay, and bisexual (“LGB”)11 11.“LGB” is used instead of “LGBT” because the American Association of Law Schools (AALS) Directory of Law Teachers does not include data on transgender faculty.Show More scholars make up a lower share of first authors than their proportion of authors overall.

I. Scholarly Collaboration

Legal scholarship is not a solitary enterprise and professional colleagues intervene at various stages of the writing process. At the very start, informal conversations with other professors can help a scholar identify a project that is both tractable and makes a novel contribution. Once a project is far enough along, it will often be shared with colleagues within the scholar’s home institution for feedback and then presented at seminars or at national or regional conferences. Presentations of this sort allow the author to publicize and receive feedback that improves the work.

Scholarly norms in legal academia make it possible to trace many of the contributions made by one scholar to another’s work. The most obvious norm is citation for crediting related work and identifying authorities for propositions. Recent work by Keerthana Nunna, Nicholson Price II, and Jonathan Tietz excavates the “acknowledgement” footnotes that typically appear on the first page of law review articles.12 12.Nunna et al., supra note 9.Show More The footnotes reveal some of the less formal ways that legal scholars engage in knowledge co-production, and they provide a rich picture of a collaborative network among law professors, as well as the ways that hierarchy, race and gender influence who is acknowledged for their contributions to written work.13 13.Id. at 46.Show More

In this Essay, my focus is on co-authorship. Although citations, acknowledgements, and co-authorship are similar insofar as they all represent linkages between scholars that facilitate knowledge transmission, the co-authorship network is different. Most obviously, for citations and acknowledgements, scholarly influence runs in only one direction. And one doesn’t need permission to cite another author or acknowledge their contributions. As a result, the linkage reflects only the decision-making priorities of one party. By contrast, both scholars must agree to work together on a co-authored project.

Second, citations and acknowledgments are weak linkages between scholars. There may be no personal relationship between the citing and the cited authors at all. And the relationship between acknowledging and acknowledged scholars may amount to nothing more than an email exchange or a brief conversation. By contrast, in most cases, co-authorship will entail a long period—months or even years—of correspondence, conversation, and negotiation over a joint project. It is more likely co-authors will have an intellectual influence on each other. And the thickness of the relationship may create a channel for learning about each author’s personality, talents, circumstances, and ambitions, as well as sharing information about career opportunities at their institutions or in legal academia more generally. All of this can facilitate professional advancement.14 14.On the importance of networks in job matching, see Yannis M. Ioannides & Linda Datcher Loury, Job Information Networks, Neighborhood Effects, and Inequality, 42 J. Econ. Literature 1056, 1061–1062 (2004).Show More

Given the commitment that co-authorship entails, scholars do not enter co-authorship relationships lightly. Why do legal scholars co-author? Professors Ginsburg and Miles offer several reasons.15 15.Ginsburg & Miles, supra note 6, at 1788–90, 1794. For a theoretical model of the co-authorship choice, see Bruna Bruno, Economics of Co-authorship, 44 Econ. Analysis & Pol’y 212 (2014).Show More First, scholars may have complementarities in skills or expertise that allow them to make contributions together that that they couldn’t on their own. A related benefit of co-authorship comes from specialization. Even if two scholars have overlapping expertise, they may be able to write an article more efficiently by specializing their contributions. A second set of reasons relate to professional esteem. Coauthoring with other scholars allows an author to both increase her research output and diversify her scholarship by making contributions outside of her primary area of expertise, all of which will generally increase her professional profile.16 16.Id.Show More An important caveat to this is that co-authors may receive unequal credit. For example, there is evidence that female economists are penalized for coauthoring while male economists are not.17 17.Heather Sarsons, Recognition for Group Work: Gender Differences in Academia, 107 Am. Econ. Rev. 141, 144 (2017).Show More

Of course, there are also costs of co-authorship. Co-authors must agree about the substance of their piece and about the style of writing. They must be content in their working relationship, with the timing of the project, with the process of exchanging drafts and editing, and with spending hours together in conversation. And they must work out the assignment of responsibility and credit for the project, including how their contributions will be recognized through the order of their names on the final paper.18 18.Ginsburg & Miles, supra note 6, at 1790–93.Show More

II. Framework and Data

A. Network Analysis

A network is simply a collection of nodes—representing people, companies or countries, for example—and a set of links or “edges” connecting these individual nodes because of some relationship they have to each other. This very general and abstract characterization of a network can describe an enormous set of social, economic, political, and other kinds of arrangements. The co-authorship network is a collection of nodes representing the authors of law journal articles. The edges are the articles that are co-authored by any two or more legal scholars. Whereas citation and acknowledgment edges have a natural direction, running from the cited to the citing article, the co-authorship relationship does not have a natural direction from one author to the another. The graphs depicting this network are therefore known as “undirected” graphs.19 19.Matthew O. Jackson, Social and Economic Networks 20 (2010).Show More

Network graphs can be complicated mathematical objects. Although some of the most interesting structural features of a network are visible from the graph, it’s also helpful to have quantitative metrics to summarize and describe a network’s important properties that may not be readily apparent on visual inspection, as well as facilitate comparison with other networks. To do this, it’s necessary to introduce a little terminology.

We say that two authors are connected if they are co-authors themselves or if a chain of co-authors connects them to each other. These co-authorship links serve as the channel for information and influence of various kinds, and we are often interested in how far two authors are from each other in the network, since that will influence how effectively information and influence passes between them. An important concept in network analysis is the geodesic between any two connected authors, which is the set of links that form the shortest path between them.20 20.Id. at 32.Show More The distance between these authors is simply the number of those links.21 21.Id.Show More

Sometimes a network is not entirely connected but is composed of several components.22 22.Id. at 26.Show More A set of nodes constitutes a component if each node is connected to each other node. To illustrate, suppose that law professors co-authored only with scholars of the same gender and suppose that the network consisted of men, women, and non-binary scholars. The entire network includes all scholars, but it has three components. And clearly it would be important in describing such a hypothetical network to observe that it has three components, because it means that no scholar is connected to any other scholar of a different gender, and members of each gender are on an island, limited to the information possessed by others of the same gender.

In such a network, some components are likely to be larger than others, with the largest component probably being that of men, followed by the component made up of women and then the component made up of non-binary scholars. There are two common measures of the size of a component. The diameter of a component is the longest distance among all geodesics in the component.23 23.Id. at 32.Show More Finding the diameter involves finding all the shortest paths between nodes, and then identifying the longest of these paths. The component with the longest diameter is known as the giant component.

Note that components with more nodes do not necessarily have a longer diameter. To take an extreme example, suppose that the component of men scholars included Cass Sunstein and 500 other men, and Professor Sunstein co-authored an article with each of the 500 but that none of the 500 co-authored with each other. The graph of this component would look like a star, with Professor Sunstein in the middle. The shortest path between Sunstein and each other scholar would be 1, and the shortest path between any two of the 500 would be two (going through Sunstein). The diameter of this component would be two. Suppose that the component of women scholars had the same star structure, but with Jill Fisch at the center and 100 other women scholars. This component would have the same size as the men’s component, because the diameter would still be two.

Another important measure of the size of the component is average path length.24 24.Id. at 33.Show More This is simply the average of all geodesics—shortest paths—between nodes in the network. This measure captures the fewest authors connecting a typical pair of authors in the network, and the measure corresponds to the intuitive notion of the “degrees of separation” between two people in a network.

In addition to wanting to describe the size of a network, its various components, and how close its nodes are to each other, it’s often important to describe the properties of individual nodes. For example, we may want to know if there are particular legal scholars who are especially well connected—who frequently co-author—and whether they resemble their co-authors in certain ways. One way of measuring the connectedness of a professor in the co-authorship network is simply to count the number of her co-authors. The number of her co-authors is known as the professor’s degree.25 25.Id. at 29.Show More Using this measure, we can get a sense of how connected the typical law professor is by looking at the average degree among all professors in the network.

Given our interest in the role of co-authorship in allocating professional opportunities and facilitating intellectual cross-pollination, we are interested in measuring how the characteristics of individual authors are correlated—positively or negatively—with the characteristics of her co-authors. For example, do professors tend to seek similarity in co-authorship, writing with other scholars of the same gender, race, or generational cohort? Or do they tend to seek complementarity, writing with scholars whose differences might result in a more efficient allocation of labor or a more creative output? To measure the tendency for scholars to co-author with other scholars with similar attributes—a network property known as homophily—I use a measure of correlation known as the assortativity coefficient and calculate it for scholars’ gender, minority status, and degree.26 26.Mark E.J. Newman, Mixing Patterns in Networks, 67 Physical Rev. 2 (2003).Show More The coefficient is positive if scholars tend to co-author with scholars who share the same traits, and it is negative if they tend to co-author with scholars having different traits.

An important characteristic of social networks is the amount of clustering or cliquishness. We may want to know, for example, whether it’s typical for a scholar’s co-authors to co-author with each other or whether certain professors are central in some sense to the scholarly network. A professor with many co-authors may be well connected, but a professor at the center of a dense, interconnected part of the co-authorship network may be important because she facilitates other collaborations and network connectivity. There are two measures of the amount of network clustering around individual authors. The transitivity—also known as the triadic closure or overall clustering—of the network is calculated by determining, for each individual author, how frequently any two of her co-authors are themselves co-authors.27 27.Jackson, supra note 18, at 35.Show More The second measure is the average clustering coefficient.28 28.Id.Show More The measure is calculated for each scholar, taking the number of co-authorship relationships among her co-authors as a fraction of all possible such relationships, and averaging across all authors. Because the average clustering coefficient weights the clustering coefficients of all authors equally (i.e., regardless of how many co-authors an author has) it will give greater weight to authors with fewer co-authors than the transitivity measure of clustering.

B. Data

The raw data used to create the network is all articles published in the top 100 general and specialty law reviews as ranked by Washington and Lee for the period 1980–2019. By limiting my sample to student-edited law journals, I will likely underestimate the amount of co-authorship by legal scholars overall, since much co-authored work with an empirical component appears in peer-reviewed journals such as those at the intersection of law and economics or law and psychology. Including these journals, however, would likely only amplify the increase in co-authorship I observe over time, since the emergence of empirical legal studies is a relatively recent phenomenon. The journals included in the sample are listed in Table 1 in the Appendix. I then removed student notes and comments, articles with more than 10 authors, and articles that did not have at least one author who was a professor. This left a total of 67,472 articles. I then identified the 9,320 authors who published more than one article during the period 1980–2019, who I call “scholars.” Focusing on scholars eliminates articles by practitioners, students, and judges that were not filtered at an earlier stage, allowing me to limit my analysis to the social network of research-active authors.

Data on authors’ gender, minority status, institutional affiliation, and age were collected from the American Association of Law Schools (AALS) Directory of Law Teachers. These data are collected from surveys and are self-reported. The Directory includes lists of minority teachers beginning in 1986 and lists LGB professors beginning in 1996.29 29.For racial minorities, I used lists published in the 1986, 1989, 1990, 1991, 1992, 1996, 2000, 2004, 2007, 2011, 2014, and 2019 editions. For sexual minorities, I used lists from the same years, beginning in 1996.Show More I identify a scholar as a minority or member of the LGB community if they ever appear on these lists. There may be reasons why scholars in different time periods or at different institutions may be less likely to submit this information to AALS, which may lead to underreporting of the number of such scholars. I code any scholar whose name does not appear on the lists of minority or LGB professors as not belonging to those communities. The Directory reported gender information from 1986–2011 and I use these data when they are available. For any author whose gender is not reported in the Directory, I first matched the author’s given name with the 200 most popular baby names by gender as reported by the Social Security Administration for each decade from the 1940s to the 2010s. Finally, a student research assistant supplemented the data by doing internet searches of the remaining scholars’ names and assessing their genders. The gender of any scholar for whom I could not obtain data using the procedure above is coded as missing.

III. The Emergent Small World of Legal Academia

In this Part, I analyze the scholar co-authorship network for each of the last four decades. I describe the growth and evolution of that network alongside the overall rise in co-authorship within legal scholarship and report how the distribution of co-authorship is “fat tailed,” with more scholars doing solo-authored work and more scholars having many co-authors than one would expect if co-authorship relationships were formed randomly. Finally, I evaluate whether the network of legal scholars can be described as a “small world” as that term is used in the network analysis literature, such that even a community of very many law professors is densely connected with relatively few degrees of separation between its members. I find that the law professoriate is, in fact, a small world and that it is getting smaller. Even as the number of legal scholars has grown significantly, they are more closely connected to each other than ever before.

A. Network Growth

There are more legal scholars and more legal scholarship being published than ever before. In the 1980s—the first decade of my sample period—there were 3,409 scholars publishing and there were 9,742 articles published. In the 2010s, by contrast, there were 5,595 scholars and 18,159 published articles. And although the number of both solo-authored works and co-authored articles has increased over time, there has been a much more dramatic increase in co-authored work. The absolute number of articles with only one author increased from 9,139 in the 1980s to 15,648 in the 2010s, but the number of articles with at least two legal scholars quadrupled from 603 in the 1980s to 2,511 in the 2010s. Figure 1 shows the share of all published articles that were co-authored each year by scholars. Not only do the data show that this share has tripled from roughly 5% in the early 1980s to over 15% by 2019, but the trend is striking for its steady increase over the entire time frame. The increase in co-authorship over the last forty years is clearly not just a blip, but it reflects a persistent and growing shift in how legal scholarship is produced.

The long time period of my sample provides some context for earlier studies on legal co-authorship and raises questions about the underlying dynamics generating the trend. In earlier work, Professors Ginsburg and Miles reported an increase in the share of co-authored articles published in the top 15 law reviews from 2000 and 2010, and in two peer-reviewed law journals from 1989 to 2011.30 30.Ginsburg & Miles, supra note 6, at 1785.Show More They attributed this increase to the rise of empirical legal studies.31 31.Id. at 1785 (“[R]esults support the view that specialization, and specifically the growth of empirical scholarship, has contributed to the trend of coauthorship in legal academia.”).Show More Legal scholarship that incorporates quantitative analysis is likely to be especially suitable for co-authorship, bringing together scholars with expertise in quantitative analysis with topic matter specialists.

On the one hand, an examination of the scholars who co-author most lends support to this view. Table 2, in the Appendix, lists the legal scholars in each decade with the most co-authors. These lists include several scholars—such as Ian Ayres, Mitu Gulati, and Ted Eisenberg—who do a great deal of empirical scholarship. On the other hand, the lists also include many scholars who do not do empirical work, and it is also notable that the trend in increasing co-authorship had already begun by 1980 and continues unabated through the present. It is difficult to place a specific start date for the contemporary rise of empirical work, but some sociologists place it in the mid-1990s,32 32.Mark C. Suchman & Elizabeth Mertz, Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism, 6 Ann. Rev. L. & Soc. Sci. 555, 556 (2010) (“Since the mid-1990s, several groups of scholars have championed a renewed dialog between law and social science.”).Show More and the Journal of Empirical Legal Studies did not begin to be published until 2004.33 33.Journal of Empirical Legal Studies, Wiley Online Libr., https://onlinelibrary.wiley.com/loi/17401461 [https://perma.cc/6GXQ-LCEK] (last visited Oct. 28, 2022).Show More Moreover, the trend toward co-authorship is evident looking at the top 100 law journals and excluding the peer-reviewed journals where much quantitative legal scholarship is published, such as the Journal of Empirical Legal Studies, the Journal of Law & Economics, and the American Law and Economics Review. Including peer-reviewed journals would likely amplify this trend.34 34.See Ginsburg and Miles, supra note 6, at 1785 (“Coauthored articles were far more common in . . . [the Journal of Legal Studies and Journal of Law, Economics and Organization] . . . than in the general interest, student-edited law reviews.”).Show More

Figure 1: Co-Authored Share of Articles

Over the last forty years then, there has been an increase in both the number of legal scholars—the nodes—and the number of co-authorship relationships—the edges. Figures 2–5 show the staggering increase in the size of the largest component of the co-authorship networks for each of the past four decades. In 1980, this component included only 26 scholars, making up 3.4% of the entire professor network. Things look dramatically different in 2010s, where the largest component of the scholarly network included 1,226 scholars and made up 50.9% of the entire network. Thus, a much greater share of the professoriate is now connected to each other through co-authorship linkages. The hubs of each giant component are those with the most co-authors, and they are indicated on each graph by their names. As co-authorship has become more prevalent, the threshold for being one of these hubs has increased as well. In the 1980s and the 1990s, the hubs were scholars with at least four co-authors. In the 2000s and the 2010s, these were scholars such as Ian Ayres and Cass Sunstein with at least twelve co-authors. The ten scholars with the most co-authors by decade are listed in Table 2, in the Appendix. Whereas the most connected professor in the 1980s was corporate and securities law scholar Jonathan Macey with eight co-authors, in the 2000s and 2010s the most connected scholar was IP scholar Mark Lemley with 22 and 26 scholar co-authors in those decades, respectively.

The number of a scholar’s co-authors—their degree—is only one measure of their significance to the co-authorship network, and there are other measures that reflect other concepts of a scholar’s centrality. For example, closeness centrality measures the average distance between a scholar and the other scholars in the network through co-authorship relationships. This measure is conceptually analogous to typical “degrees of separation” between one scholar and all the other scholars. An alternative measure of a scholar’s centrality or importance to the network is her betweenness centrality. This measure captures how often the shortest path between any two other professors runs through the scholar.35 35.For details about the calculation of these centrality measures, see Jackson, supra note 19, at 39.Show More

Lists of the top ten scholars by these two measures of centrality are in Tables 3–4 in the Appendix. There is a fair amount of overlap between the scholars identified as the most closely connected using the closeness centrality measure and the scholars through whom other scholars are linked using the betweenness centrality measure. These lists include prolific scholars who frequently co-author—especially in the areas of corporate and securities law—such as Jill Fisch, Mitu Gulati, and Steven Choi, but also a miscellaneous group of other scholars writing in areas such as IP, behavioral economics, and administrative law.

Figure 2: Legal Scholar Co-authorship Network 1980-1989

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Figure 3: Legal Scholar Co-authorship Network 1990-1999

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Figure 4: Legal Scholar Co-authorship Network 2000-2009

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Figure 5: Legal Scholar Co-authorship Network 2010-2019

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B. Characteristics of the Network

The scholarly network contains many more scholars and is much more connected than it used to be. In this Section, I conduct a closer investigation of the law co-authorship networks that emerged in each of the last four decades, comparing them using the various summary statistics described in Part I to understand how the scholarly network has evolved over time. These summary statistics are reported in Table 1. I constructed a separate co-authorship network for each decade and reported the density, average clustering coefficient, and transitivity of those networks. For the giant component of each network, I also reported the density, the average shortest path (geodesic) between scholars, and the diameter.

Table 1: Co-authorship Network Statistics by Decade

One measure of a network’s connectedness is its density. The network density is simply the share of all possible links between co-authors that are present. As the size of the scholar network has increased over the last forty years—from 760 to 2,410 scholars—its density has declined; there were fewer co-authorship relationships as a share of possible relationships in each successive decade than the one before. This is an almost inevitable consequence of the growth of the network, because adding the th scholar to the network means adding possible links, and so as grows, the set of possible links grows at an increasing rate.

Recall that there are two measures of cliquishness or clustering in the network—transitivity and the average clustering coefficient. Interestingly, these two measures exhibit different patterns over time. The average clustering coefficient has increased over time, indicating that a typical scholar’s co-authors are more likely to co-author now than they were before. Transitivity—or overall clustering—however, declined in the 1990s and then the 2000s before increasing again in the 2010s. What explains these different patterns? Recall that the key difference between average clustering and overall clustering is that overall clustering gives greater weight to scholars with more co-authors. The different temporal patterns from 1980–2010 could be explained by a general increase in co-authorship during this time period among small cliques, while some of the “star” scholars with many co-authors during the early period continued to add co-authors in the 1990s and 2000s who were not themselves well connected. This pattern could arise, for example, if star scholars are more senior members of the academy who chose in the 1990s and 2000s to co-author with relatively junior scholars.

The last row of Table 1 reports the degree assortativity of the four networks. This captures the tendency for scholars with many co-authors to work with other scholars with many co-authors. This statistic follows the same pattern over time as network transitivity. Scholars who were well connected were less likely to co-author with scholars who were also well connected from 1990–2010 than in the 1980s. This statistic is consistent with the idea that “star” scholars in the 1990s and 2000s were more likely to co-author with scholars who were not themselves well connected.

Although the giant component of the scholarly network has grown enormously in terms of its coverage of the entire network—covering 50.8% of the 2010 network and having a diameter of 30—many scholars remain only loosely connected. The density of the giant component has followed the same trend as the entire network and is smaller than it was in the 1980s. Even more importantly for understanding how close scholars are to each other through chains of co-authorship, the average shortest path increased from 3.9 in the 1980s to 10.1 in the 2010s, meaning that, for any two randomly chosen scholars, the expected “degrees of separation” is nine intermediate co-authors.

Since it is hard to know what to make of these statistics in isolation, I have focused on how they have evolved over time to understand the trajectory of legal academia. Another way of contextualizing these numbers is by comparing the network of legal scholars with the co-authorship networks in other academic disciplines. Table 2 reports statistics on the co-authorship networks in Biology, Economics, Math and Physics and compares them with statistics for the 2010s co-authorship network of legal scholars.36 36.The data come from Jackson, supra note 19.Show More

Table 2: Comparison of Co-authorship Networks

Even as the number of published legal scholars has grown over time, there are only a small fraction as many law professors publishing in U.S. law journals as there are scientists, economists and mathematicians publishing in their fields. The second row reports the average degree—the average number of co-authors—among scholars in each field. Researchers in the natural sciences typically have many more co-authors than scholars in other fields, due to the collaborative nature of work that is often funded by outside grants, cooperation between theorists and experimental researchers, and norms for giving co-authorship credit within research labs. The model of knowledge production in law is much closer to that in economics, and so comparisons between law and economics will be especially useful.

It is noteworthy that, notwithstanding the historical scarcity of co-authorship in law37 37.Meyerson, supra note 5, at 548.Show More and the trend toward increasing co-authorship in economics,38 38.Andy H. Barnett, Richard W. Ault & David L. Kaserman, The Rising Incidence of Co-Authorship in Economics: Further Evidence, Rev. of Econ. & Stat. 539 (1988).Show More the average number of co-authors among legal scholars has overtaken that among economists. Focusing on the giant component of each scholarly network, the giant component in law has a longer diameter than in any of these other fields but makes up a much smaller share of the network of scholars than the giant components in biology, physics, and math. Virtually all biologists, physicists, and mathematicians are connected to each other through a single co-authorship network. By contrast, the giant component includes only 41% of economists and 59% of legal scholars. But these numbers do show that that there has been greater consolidation of the legal scholar network than among economists.

The average path length—of 10.1—between legal scholars is longer than in the other networks, indicating that legal scholars are typically more degrees removed from each other than scholars in other fields. The biology and physics networks are particularly dense. But the difference between the average path length in economics and in law is modest, only a difference of half a degree, on average. This suggests that economists and law professors are situated similarly close to each other, as measured by co-authorship relationships. Interestingly, transitivity in the legal scholar network is considerably greater than in all other fields except physics. This means that a legal scholar’s co-authors are more likely to co-author with each other than the co-authors of scholars in the other fields, suggesting a higher degree of cliquishness in law.

C. Co-author Distributions

In the 1980s, the average number of scholar co-authors was only 1.44, and by the 2010s, the average number of scholar co-authors had increased to 2.2. But focusing solely on the average number of co-authors ignores considerable nuance in how co-authorship has evolved. For example, we should want to know whether this increase in the average number of co-authors is being driven by an increase in co-authorship across the board—whether all legal scholars are co-authoring more—or whether the increase has been driven by a relatively small number of scholars. We can see this by looking beyond the average number of co-authors to examine the entire distribution of co-authors among scholars. Let be the share of scholars in the network that have co-authors ( stands for “degrees”). Examining the distribution of scholars by number of co-authors, and how that distribution has changed over time, can shed light on how co-authorship relationships form and why the average has increased over time. But rather than plot graphs showing the share of scholars on the vertical axis against the number of co-authors on the horizontal axis, I transformed these numbers by taking the natural logarithm of each, for ease of visualization and for reasons discussed below. As a result, Figures 6–9 show graphs plotting the natural log of against the natural log of for each decade of the sample period.

Figure 6: Co-author Distribution 1980s Figure 7: Co-author Distribution 1990s
Figure 8: Co-author Distribution 2000s Figure 9: Co-author Distribution 2010s

The dots in each graph represent the actual distributions showing the share of scholars with a specified number of co-authors—after taking the natural log of each number. For example, in Figure 8, consider the third blue dot from the left. This dot corresponds to the roughly 13.5% of scholars in the 2000s network (the natural log of which is about -2) who had 3 co-authors (the natural log of which is about 1.1). To better visualize the distribution, the red line shows the straight line that best fits the dot pattern.

What process of co-authorship formation could have led to these distributional patterns? One useful benchmark is a process whereby co-authorship relationships are formed randomly, as though each scholar when deciding who to write with picked a name out of the hat of all legal scholars. A network generated in this way would have a graph in which the distribution of degrees was much more curved than the distributions we observe among legal scholars. Particularly in the 2000s and 2010s, the distribution of co-authorship is reasonably well-represented by the straight red line.

To see the difference, the curved lines in green show the degree distributions that would result from random graphs. For each decadal network, I used the number of scholars and the number of links from the actual network but assigned those links randomly. The relative linearity of the distribution as compared with the random network means that the actual co-authorship distribution has more scholars with very many co-authors and more scholars with very few co-authors than would be expected if co-authorship relationships were formed at random. This is known as a “fat-tailed distribution.”

What kind of process would lead to these fat-tailed distributions? One possible mechanism for the formation of the law-scholar network is known as preferential attachment. The idea of this process is that when someone is choosing who to write with, they are more likely to pair up with someone the more co-authors that person already has. There are a variety of reasons why preferential attachment could arise in the network of legal scholars. For example, it could be that scholars at some law schools are more likely to be co-authors than at others, and that people tend to write with their colleagues. It could be that some scholars work in areas where co-authorship is more common, so that scholars working in empirical legal studies tend to have many co-authors whereas scholars in other areas tend to write solo-authored works. Or it could be that co-authorship is associated with an increased scholarly profile or a personal preference for writing with others, such that people with many co-authors tend to seek more co-authorship projects, or other scholars seek them out.

D. A Small World

As the number of legal scholars has grown, technological innovations such as email, videoconferencing, online platforms, and cheaper travel have made it easier for scholars to identify potential collaborators and work with scholars at other institutions or in other time zones. For whatever reason, the rise of co-authorship has brought the network of legal scholars closer together. But how close? One way of answering this question in the network literature is to ask whether legal scholars inhabit a “small world.” Following the scholarly literature, I say that the network of legal co-authorship has small-world properties if (1) the number of scholars is much larger than the average number of co-authors; (2) the giant component covers a large share of the entire network; (3) the average shortest path in the giant component is small;39 39.Specifically, the average shortest path should be of the same order as .Show More and (4) if there is significant clustering, so that the transitivity of the network is much larger than the average number of co-authors divided by the number of scholars.40 40.In this I follow Sanjeev Goyal, Marco J. van der Leij & José Luis Moraga‐González, Economics: An Emerging Small World, 114 J. Pol. Econ. 403 (2006). Goyal et al. builds on the seminal analysis of Duncan J. Watts & Steven H. Strogatz, Collective dynamics of ‘small-world’ networks, 393 Nature 440 (1998).Show More To evaluate the network of legal scholars along these dimensions, I benchmark its small-world features against the network of economics co-authorship and also against randomly generated small-world networks.

Consider the first property. In the last four decades, the average number of a legal scholar’s co-authors has increased from 1.4 to 2.2 while the number of legal scholars has increased from 760 to 2,410. Not only is the number of legal scholars much larger than the average number of co-authors, but the ratio of the two is increasing over time. Thus, the legal scholar network satisfies the first requirement for a small world, and even more so in recent years. And the second small-world property is satisfied too. The giant component, which covered only a very small part of the scholar network in the 1980s, now covers roughly 51% of the network. By comparison, the giant component of the economics co-authorship network covers 40% of the network, which scholars concluded is still large enough to be indicative of a small world.41 41.Goyal et al., supra note 39, at 408.Show More

The third small-world criterion is that the average shortest path in the giant component is “small.” Although the average shortest path of the giant component has increased modestly over time, it remains relatively small. Specifically, it is conventional to define the average shortest path as small when it is of the same order of magnitude as the natural log of the number of nodes in the network.42 42.Id. at 405.Show More In the 2010s, the average shortest path of the giant component was 10.1 and the log of the number of scholars was 7.8. These are of the same order of magnitude because if we multiply 7.8 by 10 we get a number that is much larger than 10.1. Another way of thinking about the smallness of the average path length is by comparing it to the average shortest path in the economics network. As noted above, the average shortest path in economics is 9.5, so the two have similar average path lengths and the third requirement for the law network to be a small world is satisfied.

Finally, how strong is the clustering in the law network? From Table 1, we see that the transitivity of the law network declined from 0.42 to 0.33 to 0.24 and increased back to 0.39 in the 2010s. Is this a lot of clustering? One way to answer this question is to compare the overall clustering with the clustering that would be expected if the network were randomly generated. In that case, the transitivity of the random network would be approximately the average degree of a scholar divided by the number of scholars. In the last four decades, the randomly generated transitivity would be 0.0019, 0.0012, 0.0010 and 0.0009—far less than the amount of clustering than we observe. The actual amount of overall clustering in the network over the last four decades is 214, 269, 235, and 352 times the amount of clustering predicted in a random network. We can also compare transitivity against the network of economists. The clustering in the law network is not as high as the clustering in the economics network—where the clustering coefficient was 700 times what one would expect in a random network—but the two are not far apart, so we still conclude that the fourth small-world requirement is satisfied. Since all four conditions are met, we conclude that the network of legal scholars is a small world, and one that has become smaller over time.

Rather than use networks from other fields as a benchmark, we can also compare the network of legal scholars against small-world networks simulated using algorithms designed to generate structures with small-world properties (significant clustering and low average path lengths). A Watts-Strogotz small-world graph is generated from a ring lattice structure in which each node is connected to the nearest nodes in the ring, and then proceeds by taking each edge connecting the node to its neighbor and randomly “rewiring” it to another node with some fixed probability. The resulting rewired network is a small world.

The average degrees in the 2010 legal scholars’ network and its giant component are 2.2 and 2.9, respectively. The average degrees in a small-world graph is an even number , so we cannot match the co-authorship graph precisely to a small-world graph with the same average degrees. As a result, I consider two possibilities. Table 3 compares the properties of the 2010 network and its giant component with connected small-world graphs for and The 2010 network has many fewer edges than the small world, so its density and average path length are lower, but the average and global clustering measures are much higher, confirming that the network of legal scholars had become a small world by the 2010s.

Table 3: Comparison to Watts-Strogotz Small-World Graphs

IV. Demographic and Institutional Trends

Not only has the network of legal scholars grown over time, but it has also diversified. The number and the share of female, minority, and LGB scholars has increased along with the increase in the overall numbers of active legal scholars, although the trends in representation across these groups differ. Consider first self-identified minorities. In the 1980s, 4.7% of scholars were minorities, and in the 1990s, the share of minority scholars doubled to 9.5%. But the increase in minority representation since then has been more modest, with 11.7% of active scholars reporting being minorities in the 2010s. The share of active self-identified LGB legal scholars was 1.8% in the 1980s and has increased each decade until reaching 3.9% in the 2010s. Finally, the number of female scholars has increased from 17.0% in the 1980s to 34.5% in the 2010s.

The growing number of female, minority, and LGB scholars in academia overall is reflected in the authorship of legal scholarship. Figure 10 shows that the share of articles authored by female, minority and LGB scholars has increased over time. Each line shows the trends in authorship by one group, smoothing out annual fluctuations to reveal the overall trend.

Figure 10: Share of Articles with Female, Minority or LGB Authorship

Comparing across decades, in the 1980s, minorities authored 4.3% of articles, and in the 2010s, they authored 12.9% of articles. The share of articles authored by LGB scholars was 1.8% in the 1980s and 4.2% in the 2010s. Women scholars authored 13.2% of articles in the 1980s and 32.9% in the 2010s. Comparing the representation of minorities, women, and LGB scholars as a share of scholars and in terms of their share of scholarship shows that minority and LGB scholars generate a modestly larger share of scholarship (12.9% and 4.2%) than their proportion of scholars (11.7% and 3.9%) while women scholars generate a modestly smaller percentage of legal scholarship (32.9%) than their proportion of scholars.

Although the law professoriate and legal scholarship now has more diverse representation, has it become more integrated? Or are minority, LGB, and women scholars cloistered in terms of their scholarly work? Figure 11 shows how the share of co-authored articles with “mixed” co-authorship (i.e., one minority and one non-minority, one LGB scholar and one non-LGB scholar, or one male and one female scholar) has evolved over time. As with Figure 10, the raw data have been smoothed to better see the trend lines.

The data show that the share of mixed co-authored articles has increased in line with the overall increase in female, minority and LGB scholars. Not only is an increasing share of legal scholarship co-authored, but an increasing share of co-authored scholarship reflects diversity along racial, gender, and LGB lines. This trend appears to be starkest for women scholars, who were represented on over 40% of co-authored scholarship by 2019, more than double their representation in 1980. The increase in women’s representation began its steep ascent around 1990 and continued until the end of the sample period.

Figure 11: Share of Co-Authored Articles with Mixed Co-Authorship

The increase in mixed co-authorship over time does not, however, imply that co-authorship relationships are formed without regard to differences in race, gender, or sexual orientation. Members of the same gender or minority group could still be more likely to co-author because of scholarly or personal affinities or geographic clustering in the same region or at the same law school. On the other hand, members of different genders or minority statuses may be more likely to co-author because their differences are complementary and allow them to generate new ideas and make novel contributions. The differential probability for co-authorship links to form between nodes with the same attributes is known as homophily. To measure homophily by minority, gender, and sexual minority status, Table 4 reports the assortativity coefficient for each characteristic and decade for which I have mostly comprehensive data on the characteristic. This measure has a value of 0 when there is no sorting by the attribute. A positive value is evidence of homophily—scholars co-authoring with scholars of the same “type”—while a negative value is evidence that similar scholars are less likely to co-author.

Table 4: Homophily by Attribute

For each decade and each demographic category, the coefficient is positive, indicating that legal scholars have some affinity to co-author with scholars who are of the same gender and minority status. But also, for gender, minority status, and LGB status, the strength of that homophily is declining over time. Thus, not only is legal academia becoming more diverse over time, but it is also becoming less segregated, at least in terms of scholarly collaboration. This is good news, because it increases the likelihood that the fruits of the scholarly network—information sharing and scholarly visibility for professional advancement—are more widely shared than they would be in a more segregated network.

One other aspect of scholarly segregation is the amount of co-authorship that happens between scholars at different institutions. Although technological developments make it easier to collaborate with scholars from other institutions than before by reducing the costs of communication,43 43.See, e.g., Mu‐Hsuan Huang, Ling‐Ling Wu & Yi‐Chen Wu, A Study of Research Collaboration in the Pre‐web and Post‐web Stages: A Coauthorship Analysis of the Information Systems Discipline, 66 J. Ass’n for Info. Sci. & Tech. 778 (2015).Show More co-authorship networks may remain institutionally fragmented. And fragmentation reduces the information flow across institutions, thereby erecting barriers toward the mobility of law professors and the likelihood of fruitful intellectual collaborations. Moreover, co-authorship across law schools may usefully undermine “letterhead bias,” the idea that opportunities for scholarly publication depend on the perceived status of the author.

Figure 12 shows that the fraction of all co-authored articles with authors from different law schools has increased over time. Although the data series exhibits a lot of volatility, it also has a clear upward trend. The dots plot the raw data, and the solid line is a smoothed line to better illustrate the trend. The data series ends in 2011, which is the last year for which electronic access to the AALS directory and its information on faculty affiliation was available.

There is also considerable variation among law schools in how much their faculty co-author and whether those co-authorship relationships cross institutional boundaries or are within-school. Table 5, in the Appendix, lists the top 10 percent of law schools in terms of published articles from 1980–2019. Scholars from Cornell and Northwestern were most likely to co-author during this period, a fact which may be attributable to those faculties’ strength in and emphasis on interdisciplinary work. Among co-authored papers, scholars from Stanford, Texas, and UPenn are represented more than scholars from other institutions.

Figure 12: Co-authored Articles with Authors from Different Law Schools

V. Author Name Ordering

The rise of co-authorship and the diversification of legal academia raises several questions about how scholars are credited for co-authored work. The answers to these questions feed directly into scholars’ prospects for promotion, tenure, and compensation. And there is reason to worry that the allocation of credit may be biased. In economics, for example, there is evidence that co-authorship reduces the probability of tenure for junior female economists but not junior male economists.44 44.See Sarsons, supra note 17; Andrew Hussey, Sheena Murray & Wendy Stock, Gender, Coauthorship, and Academic Outcomes in Economics, 60 Econ. Inquiry 465 (2022).Show More Moreover, the penalty for co-authorship is greater when women co-author with men than when they co-author with other women.45 45.Sarsons, supra note 17.Show More One reason that co-authors may not receive equal credit for a joint publication is the order in which their names are listed on the article.46 46.Boris Maciejovsky, David V. Budescu & Dan Ariely, Research Note—The Researcher as a Consumer of Scientific Publications: How Do Name-Ordering Conventions Affect Inferences About Contribution Credits?, 28 Mktg. Sci. 589 (2008).Show More In some academic disciplines, the order of authors’ names is intended to convey their relative contributions to the work. Legal scholarship—like economics—typically but not exclusively uses alphabetic ordering. Nevertheless, the first-named author on a co-authored work may receive more credit than later authors because theirs may be the only name that appears when the work is cited by subsequent scholars.

In 2020, some student-edited law journals dispensed with the citation convention to identify only the first author by name for articles with more than two authors. The initiative to list all the authors was intended mostly to ensure that all scholars working on the piece receive credit, but also because the “et al.” convention may have disfavored junior, minority or female scholars if they are underrepresented among first authors. There is evidence of gender bias in the assignment of the first author position in other academic disciplines,47 47.Arturo Casadevall, Gregg L. Semenza, Sarah Jackson, Gordon Tomaselli & Rexford S. Ahima, Reducing Bias: Accounting for the Order of Co–first Authors, 129 J. Clinical Investigation 2167 (2019).Show More so perhaps this is true in law as well. In this section, I explore the representation of scholars in the first author position over the last 40 years.

For articles with more than two authors—those for which the “et al.” convention would be used—I calculated the share of first authors and the share of all authors who are women, minority, and sexual minority scholars. Comparing each group’s share of authors with their share of first authors will reveal the effect of doing away with the et al. convention on representation of these scholars’ names in citations. I then focused on articles with mixed authorship and calculated the share of these articles for which the woman or minority was the first author. To evaluate whether representation is meaningfully different among mixed author articles than one would expect if lead authorship were assigned randomly, I simulated random assignment of lead authorship among these articles 1000 times and calculated the expected share of female/minority lead authors and the probability of observing the actual share of female/minority lead authors.

Whereas 26.2% of all co-authors are women scholars, 24.5% of the first authors are women scholars. LGB scholars made up 2.7% of all authors and only 1.6% of all first authors. By contrast, racial minority scholars comprise 7.7% of all co-authors and 8.3% of all first authors. Thus, the et al. convention reduces the share of named scholars who are women and the share of LGB scholars and increases the share of named authors who are racial minorities.

Who occupies the first author position for articles with mixed co-authors? For women, the expected share of first authors based on random assignment is 44.1% and the actual share is 41.6%. The probability of observing female representation among first authors of 41.6% or less under the assumption of random assignment of author ordering is 0.12, a p-value that is suggestive but not generally associated with a rejection of the null hypothesis (of random assignment of author ordering). For LGB scholars, the expected share of first LGB lead authors among mixed articles is 43.7% but the actual share is 24.6%, a dramatically lower number associated with a p-value of close to 0. For racial minorities, the expected share of first authors based on random assignment is 39.7% and the actual share of minority first authors is 43.4%. Under a null hypothesis of random assignment, the probability of observing minority representation among first authors of 43.4% is 0.13, also suggestive but not strong evidence against the null.

Returning to our discussion at the outset about the reasons for co-authorship, there are many explanations for why minority scholars may be “overrepresented” among first authors and women and sexual minorities “underrepresented,” relative to their share of co-authors in general. One possibility is that author ordering reflects relative contributions. Another possibility is that gender, race, and LGB status are correlated with factors such as seniority or professional status among co-authors that influence the assignment of author ordering. Another possibility is that first authorship has a greater professional return for some scholars. If co-authors are altruistic, they may acquiesce to assigning first authorship to the scholar who will benefit the most. Of course, it need not be altruism. This outcome could also result from bargaining among co-authors as they work together to maximize the aggregate boost to their professional reputations. In that case, the other scholars may extract concessions from the first author in the form of greater or more menial contributions to the project in exchange for the benefit of being first author.

VI. Discussion

The network of legal scholars looks dramatically different now than it did forty years ago. There were 63% more scholars publishing and 86% more articles written in the 2010s than the 1980s. The explosion in co-authorship in the last two decades has created a connected network of scholars to which more than 50% of legal scholars belong. As a result, even as the number of legal scholars has grown, their world is smaller than ever, a conclusion that is further supported by the increasing number of collaborations between scholars from different institutions.

As new scholars join the network, their attachment is not random. Certain scholars co-author much more than others, and some scholars tend not to co-author at all. And legal scholars tend to co-author with others of the same gender and minority status, although this correlation has declined over time. As the number of women, minorities, and LGB scholars has increased over time, the increase in representation is most dramatic for women both overall and in terms of participating in mixed co-authorship arrangements. When legal scholars do co-author, their names are listed alphabetically 65% of the time. Racial minority scholars are listed as first authors more frequently—and women and LGB scholars are listed as first authors less frequently—than one would expect based on their proportion in the population of authors. Future work should explore in greater depth how new scholars become incorporated into the network, what other factors help establish co-authorship relationships, and what the consequences of these relationships are for legal scholarship and the distribution of professional opportunities in legal academia.

Appendix

Table 1: Law Reviews in Sample

Table 2: Top Scholars by Number of Scholar Co-authors

Table 3: Top Scholars by Closeness Centrality

Table 4: Top Scholars by Betweenness Centrality

Table 5: Co-authorship by School

  1. See infra Figure 1.
  2. See infra Part I.
  3. Lorenzo Ductor, Sanjeev Goyal & Anja Prummer, Gender and Collaboration, Rev. Econ. & Statistics 24–25 (2021), https://doi.org/10.1162/rest_a_01113 [https://perma.cc/PS4Z-KXAK].
  4. In some cases, law school texts are based on methodological approaches that have been developed as legal scholarship. See, e.g., Robert Cooter & Thomas Ulen, Introduction to Law and Economics (5th ed. 2007).
  5. Tracey E. George & Chris Guthrie, Joining Forces: The Role of Collaboration in the Development of Legal Thought, 52 J. Legal Educ. 559, 561–568 (2002); Michael I. Meyerson, Law School Culture and the Lost Art of Collaboration: Why Don’t Law Professors Play Well with Others?, 93 Neb. L. Rev. 547, 548–549 (2014).
  6. Tom Ginsburg & Thomas J. Miles, Empiricism and the Rising Incidence of Coauthorship in Law, 2011 U. Ill. L. Rev. 1785, 1800–1812 (2011).
  7. Paul H. Edelman & Tracey E. George, Six Degrees of Cass Sunstein, 11 Green Bag 2d 19, 22–31 (2007).
  8. Id. at 27–30.
  9. See, e.g., Daniel Martin Katz, Joshua R. Gubler, Jon Zelner, Michael J. Bommarito II, Eric Provins, & Eitan Ingall, Reproduction of Hierarchy? A Social Network Analysis of the American Law Professoriate, 61 J. Legal Educ. 76 (2011) (discussing the network of legal scholars and its impact on legal developments); Milan Markovic, The Law Professor Pipeline, 92 Temp. L. Rev. 813 (2019) (exploring how professors’ intellectual and social networks relate to the advancement of their careers); Keerthana Nunna, W. Nicholson Price II & Jonathan Tietz, Hierarchy, Race & Gender in Legal Scholarly Networks, 75 Stan. L. Rev. (forthcoming 2023) (analyzing how hierarchy, race, and gender affect the acknowledgment sections of law review articles).
  10. See infra Part IV.
  11. “LGB” is used instead of “LGBT” because the American Association of Law Schools (AALS) Directory of Law Teachers does not include data on transgender faculty.
  12. Nunna et al., supra note 9.
  13. Id. at 46.
  14. On the importance of networks in job matching, see Yannis M. Ioannides & Linda Datcher Loury, Job Information Networks, Neighborhood Effects, and Inequality, 42 J. Econ. Literature 1056, 1061–1062 (2004).
  15. Ginsburg & Miles, supra note 6, at 1788–90, 1794. For a theoretical model of the co-authorship choice, see Bruna Bruno, Economics of Co-authorship, 44 Econ. Analysis & Pol’y 212 (2014).
  16. Id.
  17. Heather Sarsons, Recognition for Group Work: Gender Differences in Academia, 107 Am. Econ. Rev. 141, 144 (2017).
  18. Ginsburg & Miles, supra note 6, at 1790–93.
  19. Matthew O. Jackson, Social and Economic Networks 20 (2010).
  20. Id. at 32.
  21. Id.
  22. Id. at 26.
  23. Id. at 32.
  24. Id. at 33.
  25. Id. at 29.
  26. Mark E.J. Newman, Mixing Patterns in Networks, 67 Physical Rev. 2 (2003).
  27. Jackson, supra note 18, at 35.
  28. Id.
  29. For racial minorities, I used lists published in the 1986, 1989, 1990, 1991, 1992, 1996, 2000, 2004, 2007, 2011, 2014, and 2019 editions. For sexual minorities, I used lists from the same years, beginning in 1996.
  30. Ginsburg & Miles, supra note 6, at 1785.
  31. Id. at 1785 (“[R]esults support the view that specialization, and specifically the growth of empirical scholarship, has contributed to the trend of coauthorship in legal academia.”).
  32. Mark C. Suchman & Elizabeth Mertz, Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism, 6 Ann. Rev. L. & Soc. Sci. 555, 556 (2010) (“Since the mid-1990s, several groups of scholars have championed a renewed dialog between law and social science.”).
  33. Journal of Empirical Legal Studies, Wiley Online Libr., https://onlinelibrary.wiley.com/loi/17401461 [https://perma.cc/6GXQ-LCEK] (last visited Oct. 28, 2022).
  34. See Ginsburg and Miles, supra note 6, at 1785 (“Coauthored articles were far more common in . . . [the Journal of Legal Studies and Journal of Law, Economics and Organization] . . . than in the general interest, student-edited law reviews.”).
  35. For details about the calculation of these centrality measures, see Jackson, supra note 19, at 39.
  36. The data come from Jackson, supra note 19.
  37. Meyerson, supra note 5, at 548.
  38. Andy H. Barnett, Richard W. Ault & David L. Kaserman, The Rising Incidence of Co-Authorship in Economics: Further Evidence, Rev. of Econ. & Stat. 539 (1988).
  39. Specifically, the average shortest path should be of the same order as .
  40. In this I follow Sanjeev Goyal, Marco J. van der Leij & José Luis Moraga‐González, Economics: An Emerging Small World, 114 J. Pol. Econ. 403 (2006). Goyal et al. builds on the seminal analysis of Duncan J. Watts & Steven H. Strogatz, Collective dynamics of ‘small-world’ networks, 393 Nature 440 (1998).
  41. Goyal et al., supra note 39, at 408.
  42. Id. at 405.
  43. See, e.g., Mu‐Hsuan Huang, Ling‐Ling Wu & Yi‐Chen Wu, A Study of Research Collaboration in the Pre‐web and Post‐web Stages: A Coauthorship Analysis of the Information Systems Discipline, 66 J. Ass’n for Info. Sci. & Tech. 778 (2015).
  44. See Sarsons, supra note 17; Andrew Hussey, Sheena Murray & Wendy Stock, Gender, Coauthorship, and Academic Outcomes in Economics, 60 Econ. Inquiry 465 (2022).
  45. Sarsons, supra note 17.
  46. Boris Maciejovsky, David V. Budescu & Dan Ariely, Research Note—The Researcher as a Consumer of Scientific Publications: How Do Name-Ordering Conventions Affect Inferences About Contribution Credits?, 28 Mktg. Sci. 589 (2008).
  47. Arturo Casadevall, Gregg L. Semenza, Sarah Jackson, Gordon Tomaselli & Rexford S. Ahima, Reducing Bias: Accounting for the Order of Co–first Authors, 129 J. Clinical Investigation 2167 (2019).

Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation, the imposition of extreme sentences—including the death penalty, mandatory life without parole, and discretionary life without parole for non-homicide offenses—is disproportionate and unconstitutional under the Eighth Amendment.

Emerging neuroscientific research strongly indicates that the immaturity, impressionability, and corrigibility of juveniles are also characteristics of emerging adults, defined here as individuals ages eighteen through twenty. Courts, however, have consistently resisted extending Federal Eighth Amendment protections to this demographic. This Note therefore proposes challenging the extreme sentencing of emerging adults under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitution. Further, recent litigation in Washington and Illinois demonstrates how successful challenges to disproportionate emerging-adult sentencing under state constitutional law can be achieved. This Note advocates that litigants launch facial challenges, in particular, under state constitutional provisions as a desirable mechanism for change.

Introduction

In 2015, Jonas David Nelson was convicted of first-degree murder for the premeditated shooting of his father.1.Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021).Show More On the day of the offense, Mr. Nelson was eighteen years and one week old.2.Id.Show More He was subsequently sentenced to a mandatory term of life imprisonment without the possibility of parole, in accordance with Minnesota law.3.Id. at 34.Show More Despite the fact that the record was “replete with evidence of [Mr.] Nelson’s cognitive and social delays and years of psychological and emotional abuse,”4.Id. at 40.Show More the Minnesota Supreme Court upheld his mandatory-life-without-parole sentence on both direct appeal and upon request for postconviction relief.5.Id. at 34, 40.Show More As powerfully noted by Justice Chutich in dissent, Mr. Nelson was given “the functional equivalent of a death sentence, without any consideration of him, his personality, his upbringing, or his psychological attributes, solely because the offense occurred seven days after his eighteenth birthday.”6.Id.at 41 (Chutich, J., dissenting).Show More

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders—i.e., those under the age of eighteen—must be treated differently from adults.7.See, e.g.,Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders).Show More Juveniles lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation.8.SeeinfraPart I.Show More Given this reality, the imposition of extreme sentences—including the death penalty, mandatory life without parole (“LWOP”), and discretionary LWOP for non-homicide offenses—on juveniles in criminal court is disproportionate and unconstitutional under the Eighth Amendment.9.The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution.Show More But these constitutional protections cease to exist the day one turns eighteen. Despite referring to Mr. Nelson’s case as “extremely tragic,” the Minnesota Supreme Court felt bound to follow U.S. Supreme Court precedent that “clearly limited [Eighth Amendment protection] to juvenile offenders under the age of 18 at the time of the offense.”10 10.Nelson, 947 N.W.2d at 40 (emphasis added).Show More Had Mr. Nelson been eight days younger, the mandatory LWOP sentence that he received would have been unconstitutional as applied to him.

Emerging neuroscientific research, however, strongly indicates that the hallmark characteristics of youth—immaturity, impressionability, and corrigibility—are present in individuals older than eighteen, too.11 11.See infra Subsection II.B.1.Show More Cognitive development continues well into a young person’s twenties, and society recognizes the relative immaturity of this demographic through prohibitions on activities such as drinking and firearm possession.12 12.SeeElizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region 1112 (2020), https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9].Show More As a consequence, the proportionality considerations relevant for those under eighteen are arguably as compelling for “emerging adults”—defined here as those ages eighteen, nineteen, and twenty—as they are for juveniles. Despite this reality, emerging adults have not been granted protection against the harshest of criminal sentences under the Federal Constitution, and claims of disproportionality under the Eighth Amendment have been universally quashed.13 13.See infra Part III.Show More Given the current composition of the Supreme Court, seeking federal constitutional protection against disproportionately harsh sentences for emerging adults seems futile.14 14.See infra Part III.Show More The more effective realm for such advocacy, this Note posits, is in the states.

This Note proposes that advocates redirect focus and challenge the extreme sentencing of emerging adults as disproportionate under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitutions.15 15.See infraSection IV.A.Show More Further, many have interpreted these clauses to be broader and more protective than the Federal Eighth Amendment.16 16.See infra Section IV.A.Show More Attention should therefore be directed toward challenging extreme sentences for emerging adults under these provisions.

Recent litigation in Washington and Illinois illustrates how this can be achieved. In 2021, the Washington Supreme Court held that imposing mandatory-LWOP sentences on those ages eighteen through twenty violates the state’s constitutional provision against cruel punishment.17 17.See infra Section IV.B.Show More Over the last few years, Illinois state courts have also struck down the harshest criminal sentences as applied to emerging adults, holding that they violate the state constitution’s proportionate penalties clause.18 18.See infra Section IV.C.Show More Challenging emerging-adult sentencing in these ways is a promising strategy for future advocacy efforts across the country.

The contributions of this Note are threefold. First, while theories about emerging adulthood have existed for two decades, they have only recently been argued in court.19 19.SeeJeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000).Show More This Note comprehensively surveys recent cases from both state and federal courts and synthesizes the arguments that have—and have not—been successful, a notable contribution to the literature. Second, academics and scholars have advocated generally for the consideration of proportionality in sentencing20 20.See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev. 1209, 1222–23 (2015) (arguing that those who commit more serious crimes deserve more severe punishments).Show More and explored how state constitutional provisions could be utilized to further such aims.21 21.See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273–74 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law).Show More However, none have applied these principles to the extreme sentencing of emerging adults, and this Note will be the first to advocate for such a path forward nationwide. Finally, the power of state constitutional law is significantly underappreciated in academic literature,22 22.SeeGary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L. 39, 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”).Show More despite the fact that it has profound and direct impact on those prosecuted in state courts across the nation. This Note contributes to the academic conversation by explaining how state constitutional law can be used as a powerful tool to inspire positive, tangible change, helping advocates structure their thinking and supplying them with arguments for state court practice.

This argument proceeds in five Parts. Part I considers proportionality as a philosophical concept, documenting its use in federal constitutional law to date, and reviews the Supreme Court’s Eighth Amendment jurisprudence as it relates to juveniles. Part II explains why the Supreme Court has remained faithful to the age of eighteen as a cutoff for constitutional protection against extreme sentencing but challenges the justifications provided by the Court in light of modern developments in neuroscience and social science. Part III surveys the failed efforts to gain federal constitutional protection for emerging adults, and Part IV explains why the most effective route forward for emerging adult justice will instead be under state constitutional law, highlighting Washington and Illinois as case studies of success. Part V recommends that litigants seek facial, as opposed to as-applied, protection of emerging adults and addresses counterarguments to that proposal.

  1. Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021).
  2. Id.
  3. Id. at 34.
  4. Id. at 40.
  5. Id. at 34, 40.
  6. Id. at 41 (Chutich, J., dissenting).
  7.  See, e.g., Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders).
  8. See infra Part I.
  9. The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution.
  10. Nelson, 947 N.W.2d at 40 (emphasis added).
  11. See infra Subsection II.B.1.
  12. See Elizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region
    11–12 (2020),

    https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9]

    .

  13. See infra Part III.
  14. See infra Part III.
  15. See infra Section IV.A.
  16. See infra Section IV.A.
  17. See infra Section IV.B.
  18. See infra Section IV.C.
  19. See Jeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000).
  20. See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev.
    1209, 1222–23 (2015) (

    arguing that those who commit more serious crimes deserve more severe punishments)

    .

  21. See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273
    –7

    4 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law).

  22. See Gary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L.

    39

    , 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”).