Creep

Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call “interest creep.” Interest creep is the uncritical expansion of underspecified interests like “national security” and “child protection” to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts. This Article examines interest creep through the illuminating lens of reproduction law in which it has thrived. Courts have resolved disputes including surrogacy contracts, genetic testing torts, and property claims for lost embryos by casual appeal to the state’s interest in “potential life” that Roe v. Wade designated as the canonical kind that can override rights. My analysis of every case and statute that has invoked this potential-life interest reveals its use to mean not one but four species of government concern. These distinct concerns for prenatal welfare, postnatal welfare, social values, and social effects operate under different conditions and with varying levels of strength. I apply this novel conceptual framework to live controversies involving fetal pain, sex selection, and stem cell research. These case studies demonstrate how ordinary interpretive methods equip courts to unravel the complexity of concerns that interests like “potential life” absorb over time amidst evolving facts and competing values. More broadly, this examination provides a model for how, in other areas of law from campaign finance to affirmative action, * Assistant Professor, University of San Diego School of Law. Thanks for valuable conversation to Bo Burt, Naomi Cahn, Glenn Cohen, Carter Dillard, Ben Eidelson, Bill Eskridge, Heidi Li Feldman, Brian Goldman, Chris Griffin, Scott Grinsell, Jaime King, Greg Klass, Maggie McKinley, Patrick Nemeroff, Lisa Larrimore Ouellette, Frank Pasquale, Nina Pillard, Richard Re, Nicole Ries Fox, Peter Schuck, Mike Seidman, Miriam Seifter, Reva Siegel, Cilla Smith, Gerry Spann, Larry Solum, Robin West, and the many people who discussed the project with me during conference and workshop presentations. I owe a special debt of gratitude for the intellectual camaraderie of the Georgetown Law fellowship program; for the exceptional research provided by Thanh Nguyen, Yelena Rodriguez, and their colleagues at the Georgetown Law Library; and for the superb editorial assistance of Barbara Bruce and the staff of The George Washington Law Review. April 2014 Vol. 82 No. 2