This Article considers the need for a similar Pregnancy Advance Directive to safeguard the interests of a pregnant patient who faces life-threatening circumstances but has lost decisional capacity.
Part I of this Article provides a general introduction to the various types of advance directives available in the United States, including their goals and limitations. Part II provides a detailed overview of pregnancy restrictions, including comparisons of the substantive restrictions, procedural issues, and rationales for restricting the application of advance directives during pregnancy. Part III offers a critical analysis of both the scholarship addressing pregnancy restrictions and the litigation seeking to challenge the restrictions, demonstrating that the existing legal framework has not been satisfactory in resolving the issues—a situation that will only be exacerbated by the Supreme Court’s recent decision to overrule Roe v. Wade.
Part IV offers an alternative. Taking a cue from those who advocate for the creation of special advance directives for early-stage Alzheimer’s patients, it is time to consider the creation of a Pregnancy Advance Directive: a targeted medical form addressing a patient’s wishes in the case of decisional incapacity during pregnancy, which could be completed only after the patient has become pregnant. Although it would not answer those critics who prioritize the interests of the fetus above all, it would address the concerns of those who fear prior directives may no longer reflect the new circumstances of pregnancy. It would also have the salutary effect of encouraging physicians to discuss these issues with their pregnant patients, leading to deeper consideration of the concerns and establishing a more detailed record in the event such a difficult decision must be made.

In Bluman v. FEC, the court held that foreign nationals could be prohibited from making even independent expenditures because such expenditures risked inappropriately influencing the choices made by American voters. The result in Bluman is correct, but the court’s reasoning is wrong. Foreign financing bans are constitutional not because foreign speech may “inappropriately” influence voters, but for the same reason all successful restrictions on political speech are constitutional: because of the risk they pose to the appearance or actuality of corrupting the conduct of public officials. The sense of indebtedness or ingratiation independent expenditures can induce in elected officials may be a contextually appropriate part of responsive self-government when done by domestic actors but has no place in the interactions between elected officials and foreign financiers and is well within the power of Congress to prevent.

The chances of winning an appeal in federal court are slim. One reason for that is an array of rules of appellate review that “stack the deck” in favor of the appellee and the lower court’s judgment. One such rule of review is “right for any reason,” the rule that an appellee may defend a lower court’s judgment on any grounds supported by the record—even grounds that the lower court rejected or ignored. The judgment may be right, even if the reasons are wrong. In 1924, the Supreme Court described the rule as “settled”—and felt no need to cite authority to support it—because the Court and other appellate courts had been applying the rule for nearly a century already, and commentators recognized the rule as a common feature of appellate review. This Article explains how “right for any reason” mitigates the strict technicality of writ-of-error analysis and promotes judicial economy by avoiding needless remand and relitigation where the outcome of a case is certain. Useful as this rule of review is in promoting judicial economy, however, it sometimes conflicts with other fundamental aspects of appellate review—including the principle that an appellate court is a court of review, not first view, and the principle of party presentation. To minimize such conflicts (because they cannot be avoided entirely), this Article argues that federal appellate courts should apply “right for any reason” as a discretionary, not a mandatory, rule of review; should not apply the rule when the appellee waived the alternative ground for affirmance; should raise alternative grounds sua sponte only in exceptional circumstances; and ordinarily should not consider alternative grounds that were not raised in the lower court in the first instance.

How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate meaning (it does not), but because lawyers, judges, and juries have established fixes or hacks—which in this Article we call foreseeability conventions—to settle what would otherwise be intractable foreseeability problems. Foreseeability conventions work because they give the concept meaning in particular fields and in discrete situations, furthering the law’s basic goals in especially thorny categories of recurring cases. We describe two types of conventions: storytelling or narrative conventions, on the one hand, and per se conventions, on the other. We offer salient illustrations, relying especially on the law of torts, showing how the law substitutes rough-hewn proxies for impenetrable foreseeability questions. In closing, we propose that the conventions strategy for resolving indeterminacy is widespread and even pervasive in the law. We observe, too, that the conventions strategy is being put to use today in solving controversial, high-profile legal problems in our age of political and cultural division—even as social fracture risks undermining the tacit agreements on which doctrinal conventions rest.