The University of Colorado Law School is pleased to announce that Prof. Andrew Schwartz will deliver the Schwartz will speak on “Digital Shareholders” on Thursday, April 11 at 5:30 p.m. in Wittemyer Courtroom. A reception will follow at 6:30 p.m.  

Schwartz's lecture will draw from his new book Investment Crowdfunding, recently published by Oxford University Press. In this book, Schwartz details the recent reforms that have changed federal law to allow the general public to participate in the online investment of startup companies—a venture from which they were formerly excluded.  

Are these investments safe? Are they lucrative? Should you join the millions of Americans that have already taken the plunge, investing billions of dollars in thousands of companies from coast-to-coast? Come learn about the opportunities – and dangers—of this new market from the Colorado Law professor and Fulbright scholar who wrote the book on the subject. 

“The point of investment crowdfunding is to invite the general public—’the crowd’—to take their chance and invest in startup companies alongside wealthy angel investors and professional venture capitalists, so I'm particularly excited to present this lecture to the public. Everybody is welcome, everybody is invited, and I will offer lots of practical advice. Plus it will be funny.” 

One general CLE credit pending for Colorado attorneys.   

Named for Austin Scott, a member of the law school faculty for 20 years, this annual lecture features a member of the Colorado Law faculty selected by the dean who is engaged in a significant scholarly project. This year's Scott Lecture is co-sponsored by Silicon Flatirons. 

Please contact lawevents@colorado.edu or (303) 492-8048 for any questions you may have about the event.  

Learn more about the Austin W. Scott Jr. Lecture. 

More about Andrew Schwartz 

Andrew A. Schwartz joined the Colorado Law faculty in 2008 and was promoted to full professor in 2017. He teaches and publishes on corporate, securities and contract law, and has become an internationally recognized expert on investment crowdfunding. In 2017, Professor Schwartz served as a Fulbright Research Scholar and visiting professor at the University of Auckland Law School in New Zealand. Read Prof. Schwartz’s full bio   

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When special counsel Jack Smith announced  for retaining government documents, he did something unusual: He invited the public to .

And many did – concluding not only that the indictment was  but .

I  of using narrative and rhetoric in legal persuasion. I am also a lawyer. I know that nothing required Smith and his team at the Department of Justice to write this way. Although legal scholars have ,  that a federal indictment include a “plain, concise, and definite” outline of the “essential facts” of the case – just enough to help the defense attorney understand what the client faces. Prosecutors could have cleared this hurdle by writing a technocratic document intelligible only to other criminal law insiders.

Instead, they wrote what in legal circles is called a “speaking” indictment. This indictment told a story. And not just any story – one laced with rhetorical and narrative techniques to not just help the public understand the case, but more, to persuade readers that the prosecution is justified.

Show, don’t tell

Here are some examples of how the indictment tells a story aimed at persuading readers:

The storage boxes: Trump’s now famous boxes are introduced by, first, the use of selective detail to paint a sentimental scrapbooking scene: We imagine Trump gathering what are described as “newspapers, press clippings, letters, notes, cards, photographs, official documents, and other materials in cardboard boxes.” Yet among this image of keepsakes, notes the next paragraph, were documents about “defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; [and] potential vulnerabilities of the United States and its allies to military attack.”

Mar-a-Lago: These boxes didn’t remain at the White House; after Trump’s presidency ended, he took them to Mar-a-Lago. Prosecutors could have just referred to Trump’s “Florida residence” or listed a street address. But doing so might not only be boring but also leave readers with their own stock sense of what a “residence” is.

So they brought Mar-a-Lago to life, describing it as an “active social club” with “more than 25 guest rooms, two ballrooms, a spa, [and] a gift store” that, in the relevant period, hosted “150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.” It was into this Gatsbyesque scene that Trump brought his boxes.

True, Mar-a-Lago does have a “storage room” where many boxes were put. But here, too, indictment authors counter readers’ image of what that might mean. This isn’t a room in a quiet basement corner, but rather one in a hallway with “multiple outside entrances,” near high-traffic areas like a “liquor supply closet” and “linen room.” In a moment of almost Shakespearean comedy, the indictment shows Trump employees in this setting chancing upon confidential documents spilled out on the floor. One texts, “I opened the door and found this…” to which the other replies, “Oh no oh no.”

The photos: Readers are not merely told that Trump stored highly sensitive intelligence materials at less-than-secure locations throughout Mar-a-Lago, they are shown  on a stage and in a bathroom.

These images not only keep readers engaged by breaking up the text but also reinforce the Department of Justice’s written allegations. And because viewers , including this photographic evidence as visual allegations is especially effective.

Plot inferences: As with any nonfiction story, the indictment has gaps. Readers know that phone calls occurred but not what was said. Readers know that actions took place one after another but not that the first caused the second. But through careful arrangement, the authors prime readers to fill in these gaps.

Using Trump’s own words, the indictment encourages readers to imagine him, to hear him, thinking out loud: “I don’t want anybody looking through my boxes … wouldn’t it be better if we just told them we don’t have anything here? … isn’t it better if there are no documents?” Then, starting a page later, readers twice see Trump speak to an employee for less than half a minute. They don’t know what’s said, but in both cases the next sentence after each phone call shows that employee moving boxes in, and then out, of the storage room.

Readers could infer what’s going on: Trump ordered that the boxes be moved and did so to conceal their contents. Without even realizing it, readers complete the story, giving content to the phone calls and meaning to the actions that followed them.

Throughout the indictment, writing techniques such as these  so that they see Mar-a-Lago, hear Trump barking orders and feel his motivations; the case’s disparate facts cohere into a vivid, engaging story.

‘It’s only one side’

A bare-bones, legalistic indictment would do none of these things. Nonexpert readers would gloss over it. The public would be left with just Trump’s claims about what the case was about. In contrast, Smith’s approach helps the public understand this historic prosecution.

So maybe more prosecutors should write this way.

But not every defendant has Trump’s power or influence. Not every defendant can broadcast a story for an indictment to then counter. Instead, an indictment full of persuasive storytelling techniques might frame the public’s first, and sometimes only, impressions.

Unlike in a Supreme Court case, where both sides get to share their story of what happened and should happen next, at the indictment stage the prosecutor is the only one speaking. If such a case settles before trial through a plea agreement, or if after trial the case isn’t appealed, then the defendant may never have a chance to present a public, written story.

Prosecutors wield incredible power. This includes the power to persuade through storytelling. While admiring the writing of Smith and his team here, readers should also be aware: It’s only one side of the story.

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Colorado law is proud to share that ’10 recently received the from . (TDI) at their conference this past month.  

The award recognizes Reid’s support, along with his students in the Samuelson-Glushko Technology Law & Policy Clinic, of TDI’s work in accessibility policy. The award is named after H. Latham Breunig, who co-led the Teletypewriters for the Deaf Distribution Committee, which helped distribute and repair teletypewriters (TTY) to thousands of deaf and hard of hearing people starting in the late 1960s and evolved into TDI, of which Breunig was the first executive director, and which distributed an important directory of TTY users that helped them contact each other. 

is the nation’s leading advocate for deaf, deafblind and hard of hearing people’s (DDBHH) equitable access to information and communication technology (ICT). They monitor and comment on federal policies involving access to these technologies and strive to best represent the diverse community by engaging with stakeholders through a variety of programs. 

Reid shared that “Over the past decade, my student attorneys and I have worked with TDI on numerous law and policy matters, often before the Federal Communications Commission, aimed at improving the accessibility of telecommunications system for people who are deaf, deafblind and hard of hearing.”  

In addition to receiving the Breunig award, Reid also presented on three panels at TDI’s 25th biennial conference this past month.  One panel was an overview of the newly reintroduced  the second explored the state of communications accessibility for incarcerated people with disabilities, and the third covered the complex role that artificial intelligence plays in the accessibility of communications and other technologies. 

Reid’s dedication to public service is evidenced in his longstanding commitment to supporting TDI.  Through his work with TDI, Reid aims to elevate the voices of the DDBHH community– which are often left out of or represented in policy discussions—and ensure they are equitably considered when advancing policy initiatives.  

“The importance of serving the public has been at the center of my work since I was a student at Colorado Law pursuing the Public Interest Pledge and serving as a student attorney in the clinics,” Reid shared. “I see working to help ensure that law and policy serve the public—and that students have an opportunity to engage in public service—as a critical part of my role as a teacher and scholar.” 

The University of Colorado Law School is grateful to benefit from Reid’s scholarship and services; he is a valued member of our faculty, and we look forward to the continued impact his work will have in the years to come. Congratulations, Professor Reid, on this incredible achievement!    

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Widely recognized for its intellectual diversity and originality, the faculty at Colorado Law encompasses an array of prominent legal scholars who are widely cited, both in academia and throughout the national media landscape. We invite you to catch up on the latest faculty publications and media mentions with this round up.

Faculty Publications

Amanda Parsons, , SSRN.com, Aug. 7, 2023. 

Notable Mentions & Blog Posts

Paul Campos, ; ; ; ; ; ; ; ; ; ; ; ; Lawyers, Guns, & Money Blog, (Aug. 11-18, 2023). 

T. Markus Funk’s [Colorado Law adjunct] recent article on  made SSRN’s Top Ten Download Lists for the following eJournals: Compliance & Risk Management; Institutional & Transition Economics.  

[Gregor MacGregor, Acequia Assistance Project], , Getches-Wilkinson Center, (Aug. 14, 2023). 

Andrew Schwartz, , ProfessorBainbridge.com, (Aug. 17, 2023). 

Andrew Schwartz, , Colorado Lawyers Chapter of the Federalist Society (Aug. 18, 2023).   

[Ahmed White], Prof. Ahmed White awarded Richard A. Lester Prize, Colorado Law, Aug. 18, 2023. (Under the Iron Heel:  The Wobblies and the Capitalist War on Radical Workers awarded the Richard A. Lester Prize for the Outstanding Book in Labor Economics and Industrial Relations published in 2022. This prize is awarded annually by the Industrial Relations Section at Princeton University.) 

[Acequia Assistance Project, Colorado Law students Oliver Skelly and Ellen Beckert], , The Chronicle-News, (Aug. 14, 2023). 

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Professor was recently awarded Princeton University’s Industrial Relations Section’s 2022 for his book, “Under the Iron Heel: The Wobblies and the Capitalist War on Radical Workers.” Each year, the Lester award honors the book making the most critical contribution toward understanding the problems of Industrial Relations, labor market policies, and the evolution of labor markets and public policies. 

“I am, to say the least, honored that my book has been recognized with the Lester Prize,” White said. “Researching and writing a book like this is a lengthy and, in many ways, difficult and sometimes intellectually lonely undertaking that gives little confirmation along the way that you, the writer, are doing something good and important.  To emerge from that and receive a prize like this is therefore especially gratifying.” 

In “Under the Iron Heel,” White documents the torrent of legal persecution and extralegal, sometimes lethal violence that shattered the Industrial Workers of the World (IWW). In so doing, he reveals the remarkable courage of those who faced this campaign, lays bare the origins of the profoundly unequal and conflicted nation we know today, and uncovers disturbing truths about the law, political repression, and the limits of free speech and association in class society. 

“I’ve been interested in the IWW since I was a young man, and I’ve written about the union and its members, the Wobblies, as they were called, on and off for over two decades,” White shared. “One thing that drew me to finally write this book about the Wobblies was the romance that inheres in their story.  Something really captivates me about these people, who spent their lives wandering about, riding the rails, trying to change the world, and also the kind of work they did, which is quite familiar to me, given my own upbringing. “ 

White shared that there is another side to this story that also captivated him, which is about how these people suffered, yet met repression with such dignity and grace. This struck a familiar note for him, as White’s father was a civil rights lawyer and activist. 

“He [my father] and other members of my family and community suffered for what they tried to accomplish, and received little validation from a society that, for all its preoccupations with racial justice, remains untrue to its commitments to equality.” 

The perspective “Under the Iron Heel” adds to the legal field is vast and multifaceted. White hopes that those who read this book will find in it a tragic and cautionary tale about the realities of class rule in our society—one that makes clear the true character of our political and legal system. More broadly, though, White emphasized that this book is about law and the legal system. It brings to the surface uncomfortable truths about how our courts, politicians, intellectuals, and constitutional order have been captive to the interests of the wealthy and the manipulations of progressive reformers.  

“In this light, and in light of what’s happening in our world today, I hope I’ve provided truly decent and well-meaning people ample grounds to worry, whatever their ideological commitments,” White said. “And maybe this worry will inspire better, more thoughtful work on topics like the First Amendment, where a lot of what scholars are writing these days is conspicuously short on any kind of historical consciousness.” 

“Under the Iron Heel,” was also named a co-recipient of the . White currently has two similar books in the works, including one that is nearly a direct spinoff of “Under the Iron Heel,” and another that explores an important but often forgotten rebellion among hard-pressed Midwest farmers in the early 1930s.  

The University of Colorado Law School is grateful to have White—his scholarship and deep engagement—as a part of our community and look forward to the continued impact his work will have in the years to come. Congratulations, Professor White, on this remarkable achievement!    

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Faculty Publications

Peter Huang [retired Colorado Law faculty],  (2023). 

Lolita Buckner Inniss, Abortion Law as Protection Narrative, 101 Oregon L. Rev. (2023)(online link forthcoming). 

Maryam Jamshidi, , 108 Cornell L. Rev.739 (2023). 

Amanda Parsons, , SSRN.com (Aug. 7, 2023).

Blake Reid, Jerry Kang, & Alan Butler,  (2023). 

Daria Roithmayr, , 28 Mich. J. Race & L. 145 (2023).   

Notable Mentions, Blogs, & Interviews 

[Harold Bruff, Professor Emeritus], Louis Jacobson,  Politifact, (Aug. 1, 2023). 

Paul Campos, ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; Lawyers, Guns, & Money Blog, (July 29-Aug.11, 2023).  

[Shamika Dalton, Deep Gulasekaram, Daria Roithmayr, & Wadie Said], , CU Connections (Aug. 10, 2023).   

T. Markus Funk [Colorado Law adjunct], recent articles on , , and ) made SSRN’s Top Ten Download Lists for the following eJournals:  Institutional & Transition Economics; Criminal Law; Types of Offending; Compliance & Risk Management; Law & Society: Private Law - Labor & Employment Law; and Political Economy – Development: Underdevelopment & Poverty Law.   

[Deep Gulasekaram], Emily Battaglia, Getting to know Prof. Deep Gulasekaram, Colorado Law, (Aug. 8, 2023). 

[Deep Gulasekaram, Maryam Jamshidi, Vivek Krishnamurthy, Sarah Matsumoto, Blake Reid, Daria Roithmayr, & Wadie Said] Twelfth season of mini law school to feature new topic areas, faculty members, Colorado Law (June 29, 2023).   

Jennifer Hendricks, Emily Battaglia, Essentially a Mother: A Q&A with Jennifer Hendricks exploring her groundbreaking new book, Colorado Law (July 13, 2023).   

Peter Huang, Lunch and Learn Presentations: CU Fireside Chat on Disrupting Racism (forthcoming, Aug. 22, 2023). 

Maryam Jamshidi, , Just Security, (July 24, 2023). 

[Maryam Jamshidi], Garrett Shanley, , The Independent Florida Alligator, (July 31, 2023). 

Maryam Jamshidi, , Law and Political Economy Blog (June 22, 2023).   

[Maryam Jamshidi], Caleb Symons, , Law360 (June 29, 2023). 

[Margot Kaminski], , TechPolicy.com (July 28, 2023).  

[Susan Nevelow Mart, Professor Emeritus], Bob Ambrogi, LawNext, (Aug. 9, 2023). 

[Christopher Mueller],  (New Jersey Supreme Court, Aug. 2, 2023)(citing Mueller’s Federal Evidence, 4th ed.).   

Helen Norton [panelist] & Doug Spencer [moderator], 2023 U.S. Supreme Court Review (Aug. 2, 2023). 

[Amanda Parsons], Paul Caron, , TaxProf Blog, (Aug. 9, 2023).   

Blake Reid, recipient of  for work in the Samuelson-Glushko Technology Law & Policy Clinic  

[Blake Reid], Emily Battaglia, Getting to know Prof. Blake Reid, Colorado Law, (Aug. 2, 2023). 

[Daria Roithmayr], Brian Leiter, , Brian Leiter’s Law School Reports, (Aug. 8, 2023). 

[Mark Squillace], Akielly Hu, , Grist (Aug. 1, 2023).   

[Harry Surden], Ronald M. Sandgrund, , Colorado Lawyer 24 (July/August 2023). 

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Widely recognized for its intellectual diversity and originality, the faculty at Colorado Law encompasses an array of prominent legal scholars who are widely cited, both in academia and throughout the national media landscape. We invite you to catch up on the latest faculty publications and media mentions with this round up.

Faculty Publications 

Kristen A. Carpenter, , 36 Harv. Hum. Rts. J. 41 (2023).    

Andrew A. Schwartz,  (Oxford University Press, 2023)(mark your calendars for this upcoming Silicon Flatirons symposium on the book:  (Sept. 8, 2023).  

Douglas M. Spencer, , 111 Kentucky L. J. 719 (2023) (access on Westlaw .) 

Notable Mentions, Newspaper Articles & Blogs

Paul Campos, ; ; ; ; ; ; ; ; ; ; Lawyers, Guns & Money Blog, (July 8- 14, 2023). 

Helen Norton (panelist) & Doug Spencer (moderator), , Colorado Law & Faegre Drinker Biddle & Reath, LLP (upcoming, Aug. 2, 2023.) 

[Amanda Parsons], Emily Battaglia, Amanda Parsons awarded Reidenberg-Kerr Award for research, Colorado Law (July 14, 2023). 

[Blake Reid], Generative AI and Copyright, CBS News Radio, (July 10, 2023). 

Andrew Schwartz, , Columbia Law School Blue Sky Blog, July 14, 2023. 

Harry Surden,  (lecture, University of Neuchâtel, July 3, 2023) 

Harry Surden,  (session chair, Robots and AI Law Society: Generative AI and the Law Workshop, (July 6, 2023). 

Ahmed White, Mimi Rosenberg, & Ken Nash, , WBAI, (July 10, 2023). 

Ahmed White & Scott Harris, , Between the Lines, (July 3, 2023).  

[Korey Wise Innocence Project], Jennifer Mulson, , Colorado Springs Gazette, (July 13, 2023). 

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professor of law and co-director of the Juvenile and Family Law Program, recently published a new book. argues that the law of pregnancy and motherhood has been overrun by sexist ideology. Over the past few decades, courts have held that a woman’s pregnancy hardly counts in her claim to parent her child and have stripped women of the right to abortion, treated surrogate mothers as mere vessels, and handed biological fathers automatic rights over women and their children. Essentially a Mother argues that feminists must overthrow this skewed value system and incorporate new kinds of feminist analysis that have been ignored in the law before now.  

In this interview, Professor Hendricks sits down with Colorado Law’s Emily Battaglia to chat about her new book, the inspiration behind it, and the contribution she hopes it provides to the legal field.   

Thank you so much, Professor Hendricks, for taking time to answer my questions. I would love to know: what was the inspiration behind this book?   

JH: Thanks so much for taking the time to talk. The cases I point to as the crux of the book are a series of court cases about IVF mix-ups. These are cases in which women who had been struggling with infertility finally became pregnant through IVF at a clinic, only to learn that they’d been given the wrong embryos; they were then be forced to turn over the babies to the genetic parents (or even to would-be parents who bought someone else’s egg or sperm). These are hard and tragic situations, and I’m not saying there’s an easy or obvious way these cases should be decided. But what’s appalling to me is how easy the courts think those cases are—how quick they are to dismiss the birth mother’s claim in favor of the genetic parents. They basically turn her into an involuntary surrogate. In some cases, the judges have been quite horrible about scolding the birth mother, telling her it was all her fault for letting herself get attached to the baby that she literally made with her body.  It’s an extreme example of how courts have come to define parenthood in terms of genes, to the exclusion of the actual work that parents do to create and care for their children—including not just pregnancy and birth, but all the caretaking that parents do after birth as well.  

On the flip side, this minimizing of pregnancy—treating it as irrelevant to parenthood—helped pave the way for the supreme court’s decision in Dobbs v. Jackson Women’s Health, the case that overruled Roe v. Wade and eliminated the right to abortion. In that case, the Republicans on the supreme court told women that if they didn’t want a baby, they should just stay pregnant, give birth, and then place the baby for adoption. But we know that women who are denied abortions overwhelmingly reject adoption as an option. Why? Because an embryo is not the same as a baby, and having an abortion is not the same as giving up a child you’ve borne. Pregnancy is a lot of physical work, but it’s also very emotional for most people, so it leads to a bond even if it was forced on you in the first place. But the supreme court basically said pregnancy doesn’t matter, either physically or emotionally—it’s just an inconvenience. That’s the attitude that Essentially a Mother is trying to fight.  

What are the main points you hope readers take away from reading this book?   

JH: I hope to convince people that the law should define parenthood primarily in terms of caretaking for the child; and critically, the process of gestation and childbirth should be considered “caretaking” that establishes parental rights as soon as the child is born. Genes alone, without any caretaking, should not be enough. Fathers and others who don’t gestate their children can take care of them in other ways, and that caretaking should count more than just genes. We often romanticize pregnancy as some blissful, magical state, but we don’t give it real importance in terms of rights; while with fathers, we focus only on genes and child support. My argument is that, on the one hand, the law shouldn’t be acting like babies just appear out of nowhere when they’re born, with no connection to the person they just popped out of. On the other hand, the law also shouldn’t act like giving birth creates a mystical connection that is superior to other ways of becoming a parent.  

  More generally, I want people to see the connections between losing the right to abortion and denigrating pregnancy in other areas of the law, and in our culture. Women are suffering horribly, every day, from the loss of Roe v. Wade. As we fight to win back the right to abortion, we have the chance to do it in a much broader way that will protect everyone’s reproductive rights and freedoms. We must overthrow the entire skewed value system, currently enshrined in the law, that subordinates women, devalues pregnancy and other forms of caregiving, and denies too many people the right to choose whether to become parents and to raise their families with dignity and security.  

Can you talk about how this book builds upon your previous work?  

JH: Essentially a Mother is the culmination of work I’ve been doing on these issues for about fifteen years. The IVF mix-up cases are the tip of the iceberg in terms of how the genetic definition of parenthood has taken over family law. Defining parenthood in terms of genes is, at its root, a sexist approach to the law. It says that a pregnant woman’s nine months of gestation count for basically nothing when it comes to her claim to be the parent of the child she bears. Armed with this notion of parenthood, courts have handed biological fathers—even those who become fathers through rape—automatic rights over women and their children.  

Part of the problem is a logical error that courts make in terms of what it means for the law to be sex-neutral. To me, the core of parenthood is caretaking for a child, so parental rights should be based on a caretaking relationship. That caretaking can come in a variety of forms, including pregnancy. Many courts and scholars, however, have implicitly concluded that pregnancy and childbirth cannot be part of the definition of parenthood, because that would be unfair to men. That means that genes are all that’s left for identifying the parents at the time the child is born. But that isn’t sex-neutral; that’s discrimination against the people who get pregnant, because you’re refusing to count this huge thing that they did.  

The focus on genes also ends up hurting men who put a lot into taking care of their kids. When courts are judging fathers, the one thing they are likely to consider in addition to genes is whether a man paid child support. In one case, the supreme court denied parental rights to an unmarried father who had raised his son all by himself, because he’d never filed the paperwork to formally take financial responsibility. It’s all part of a pattern where the actual, physical labor of creating, birthing, and raising a child just doesn’t count for much in the law.   

With this work, what perspective do you hope to add to the current field of research in this area?     

JH: One of the things I talk about in the book is that a lot of feminist legal scholars have been surprisingly supportive of legal rules that minimize the importance of pregnancy. I think that’s because, abortion aside, a huge amount of feminist legal work is focused on employment law and constitutional law. In those fields, most of the fights in the past have been about women trying to win the same privileges as men by showing they are just as good as men at being a lawyer or a soldier or whatever. But family law is one of the most dynamic and exciting fields in legal scholarship right now, and it also has the most experience grappling with issues about gender and relationships. Essentially a Mother challenges constitutional lawyers to confront and incorporate new kinds of feminist analysis that have been ignored in the law before now.  

The book is available for order at your local bookstore, from online booksellers, and from the . 

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professor of law and co-director of the Juvenile and Family Law Program, recently published a new book. argues that the law of pregnancy and motherhood has been overrun by sexist ideology. Over the past few decades, courts have held that a woman’s pregnancy hardly counts in her claim to parent her child and have stripped women of the right to abortion, treated surrogate mothers as mere vessels, and handed biological fathers automatic rights over women and their children. Essentially a Mother argues that feminists must overthrow this skewed value system and incorporate new kinds of feminist analysis that have been ignored in the law before now.  

In this interview, Professor Hendricks sits down with Colorado Law’s Emily Battaglia to chat about her new book, the inspiration behind it, and the contribution she hopes it provides to the legal field.   

Thank you so much, Professor Hendricks, for taking time to answer my questions. I would love to know: what was the inspiration behind this book?   

JH: Thanks so much for taking the time to talk. The cases I point to as the crux of the book are a series of court cases about IVF mix-ups. These are cases in which women who had been struggling with infertility finally became pregnant through IVF at a clinic, only to learn that they’d been given the wrong embryos; they were then be forced to turn over the babies to the genetic parents (or even to would-be parents who bought someone else’s egg or sperm). These are hard and tragic situations, and I’m not saying there’s an easy or obvious way these cases should be decided. But what’s appalling to me is how easy the courts think those cases are—how quick they are to dismiss the birth mother’s claim in favor of the genetic parents. They basically turn her into an involuntary surrogate. In some cases, the judges have been quite horrible about scolding the birth mother, telling her it was all her fault for letting herself get attached to the baby that she literally made with her body.  It’s an extreme example of how courts have come to define parenthood in terms of genes, to the exclusion of the actual work that parents do to create and care for their children—including not just pregnancy and birth, but all the caretaking that parents do after birth as well.  

On the flip side, this minimizing of pregnancy—treating it as irrelevant to parenthood—helped pave the way for the supreme court’s decision in Dobbs v. Jackson Women’s Health, the case that overruled Roe v. Wade and eliminated the right to abortion. In that case, the Republicans on the supreme court told women that if they didn’t want a baby, they should just stay pregnant, give birth, and then place the baby for adoption. But we know that women who are denied abortions overwhelmingly reject adoption as an option. Why? Because an embryo is not the same as a baby, and having an abortion is not the same as giving up a child you’ve borne. Pregnancy is a lot of physical work, but it’s also very emotional for most people, so it leads to a bond even if it was forced on you in the first place. But the supreme court basically said pregnancy doesn’t matter, either physically or emotionally—it’s just an inconvenience. That’s the attitude that Essentially a Mother is trying to fight.  

What are the main points you hope readers take away from reading this book?   

JH: I hope to convince people that the law should define parenthood primarily in terms of caretaking for the child; and critically, the process of gestation and childbirth should be considered “caretaking” that establishes parental rights as soon as the child is born. Genes alone, without any caretaking, should not be enough. Fathers and others who don’t gestate their children can take care of them in other ways, and that caretaking should count more than just genes. We often romanticize pregnancy as some blissful, magical state, but we don’t give it real importance in terms of rights; while with fathers, we focus only on genes and child support. My argument is that, on the one hand, the law shouldn’t be acting like babies just appear out of nowhere when they’re born, with no connection to the person they just popped out of. On the other hand, the law also shouldn’t act like giving birth creates a mystical connection that is superior to other ways of becoming a parent.  

  More generally, I want people to see the connections between losing the right to abortion and denigrating pregnancy in other areas of the law, and in our culture. Women are suffering horribly, every day, from the loss of Roe v. Wade. As we fight to win back the right to abortion, we have the chance to do it in a much broader way that will protect everyone’s reproductive rights and freedoms. We must overthrow the entire skewed value system, currently enshrined in the law, that subordinates women, devalues pregnancy and other forms of caregiving, and denies too many people the right to choose whether to become parents and to raise their families with dignity and security.  

Can you talk about how this book builds upon your previous work?  

JH: Essentially a Mother is the culmination of work I’ve been doing on these issues for about fifteen years. The IVF mix-up cases are the tip of the iceberg in terms of how the genetic definition of parenthood has taken over family law. Defining parenthood in terms of genes is, at its root, a sexist approach to the law. It says that a pregnant woman’s nine months of gestation count for basically nothing when it comes to her claim to be the parent of the child she bears. Armed with this notion of parenthood, courts have handed biological fathers—even those who become fathers through rape—automatic rights over women and their children.  

Part of the problem is a logical error that courts make in terms of what it means for the law to be sex-neutral. To me, the core of parenthood is caretaking for a child, so parental rights should be based on a caretaking relationship. That caretaking can come in a variety of forms, including pregnancy. Many courts and scholars, however, have implicitly concluded that pregnancy and childbirth cannot be part of the definition of parenthood, because that would be unfair to men. That means that genes are all that’s left for identifying the parents at the time the child is born. But that isn’t sex-neutral; that’s discrimination against the people who get pregnant, because you’re refusing to count this huge thing that they did.  

The focus on genes also ends up hurting men who put a lot into taking care of their kids. When courts are judging fathers, the one thing they are likely to consider in addition to genes is whether a man paid child support. In one case, the supreme court denied parental rights to an unmarried father who had raised his son all by himself, because he’d never filed the paperwork to formally take financial responsibility. It’s all part of a pattern where the actual, physical labor of creating, birthing, and raising a child just doesn’t count for much in the law.   

With this work, what perspective do you hope to add to the current field of research in this area?     

JH: One of the things I talk about in the book is that a lot of feminist legal scholars have been surprisingly supportive of legal rules that minimize the importance of pregnancy. I think that’s because, abortion aside, a huge amount of feminist legal work is focused on employment law and constitutional law. In those fields, most of the fights in the past have been about women trying to win the same privileges as men by showing they are just as good as men at being a lawyer or a soldier or whatever. But family law is one of the most dynamic and exciting fields in legal scholarship right now, and it also has the most experience grappling with issues about gender and relationships. Essentially a Mother challenges constitutional lawyers to confront and incorporate new kinds of feminist analysis that have been ignored in the law before now.  

The book is available for order at your local bookstore, from online booksellers, and from the . 

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Widely recognized for its intellectual diversity and originality, the faculty at Colorado Law encompasses an array of prominent legal scholars who are widely cited, both in academia and throughout the national media landscape. We invite you to catch up on the latest faculty publications and media mentions with this round up.

Notable Mentions, Newspaper Articles & Blogs

Paul Campos, ; ; ; ; ; ; ; ; ; Lawyers, Guns, & Money Blog,( July 1- 7, 2023). 

Violeta Chapin, Professor Chapin named Associate Dean for Community and Culture, Colorado Law, (July 6, 2023).   

Shamika Dalton, Vivek Krishnamurthy, & Wadie Said, Three New Faculty Join Colorado Law, Colorado Law, July 6, 2023. 

Scott Skinner-Thompson, Julie Poppen & Nico Goda, How the 303 Creative SCOTUS decision may change anti-discrimination laws, CU Boulder Today, (July 3, 2023).   

Scott Skinner-Thompson, Clara Geoghegan, , Law Week Colorado, (July 6, 2023). 

Mark Squillace, , High Country News, (July 5, 2023). 

Mark Squillace, Meghan Lopez, , Denver 7, (July 7, 2023). 

Charles Wilkinson, JoVonne Wagner, , ICT News, (July 2, 2023). 

Getches-Wilkinson Center, Sharon Udasin, , The Hill, (July 3, 2023). 

Korey Wise Innocence Project, KWIP client Jason Hogan was released from prison on May 9, 2023, Colorado Law, (June 28, 2023). 

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