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Joseph F. Morrissey, International Sales Law and Arbitration: Problems, Cases, and Commentary (3rd ed., Aspen, 2027)Clicking on the button will copy the full recommended citation.
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Rebecca C. Morgan et al., Elder Law in Context (2nd ed., Aspen Publishing, 2025)Clicking on the button will copy the full recommended citation.
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Joseph F. Morrissey, Surrogacy Law in a Nutshell (1st ed., West Academic, 2025)Clicking on the button will copy the full recommended citation.
Surrogacy has made parents out of people who thought it might never be possible. This book builds from the author’s personal experience with surrogacy as an intended parent, but also as a law professor who has authored articles on surrogacy and a casebook in the field of contracts. This book is for the students, professionals and academics focusing on surrogacy, but is also for the intended parents, surrogates, and egg donors themselves to help with detailed information about the legal risks that need to be managed and the contracts involved that need to be structured to minimize that risk. This book combines an over-arching legal perspective with real world practical experience and stories. It is the author’s hope that this book will inspire those contemplating surrogacy to pursue their family formation dream and give guidance to professionals and academics to help those people achieve miraculous results.
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Joseph F. Morrissey, Rejecting Instrumentalism: Medical Deductions for Family Formation Denied, 23 University of Iowa Journal of Gender, Race & Justice 365 (2020)Clicking on the button will copy the full recommended citation.
In August of 2017, my lawyer presented our oral arguments to the Eleventh Circuit Federal Court of Appeals in Montgomery, Alabama, in my case against the Internal Revenue Service (IRS). The case involved the denial by the IRS of my family's tax deduction for medical expenses related to in vitro fertilization (IVF) and surrogacy.
I am part of a same-sex couple, and the IRS has allowed medical expenses related to family formation for opposite-sex couples. Our treatment by the IRS seemed wrong under the statute, unfair generally, and even unconstitutional.
The govemment believed it had a strong case-that our medical expenses were not necessary, as they argued the relevant statute commands. The IRS official auditing our tax return was clear. Our decision to build a family as two gay men was merely our "choice," he explained unabashedly, and all related expenses would not be subsidized by the United States government through the medical deduction provision.
This Article is a reflection on my experience. It will discuss my case: the facts, the law, and our arguments. It will describe our experience at the Eleventh Circuit in more detail and the way we were actually lampooned by Judge Newsom, a recent Trump appointee to the Eleventh Circuit.
The treatment of my case by the Eleventh Circuit represents a type of judicial decision-making that I label teleological instrumentalism. That technique refers to judges using decision-making techniques instrumentally to achieve the goal they think is appropriate as the outcome of any given case.
Teleological instrumentalism builds on legal realism to acknowledge that human beings are inherently biased and bring that bias to every decision they make. Where jurists might claim to be relying on appropriate neutral decision-making techniques and frameworks, they are often merely justifying the outcome that they prefer in the dispute under consideration.
This Article will ultimately reflect on the teleological instrumentalist approach of the judges in reaching their decision to deny relief in my case. Finally, I will conclude with a call for federal judges to resist the inclination to follow their biases, implicit or otherwise, reject teleological instrumentalism, and embrace a principled, neutral approach to decision-making based on statutory and constitutional language, intent, context, and precedent.
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Joseph F. Morrissey et al., Bankruptcy Law in Context (Wolters Kluwer, 2020)Clicking on the button will copy the full recommended citation.
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Joseph F. Morrissey, Business Entities, in Overview of U.S. Law (Ellen S. Podgor and J. R. Swanegan eds., 2nd ed., Carolina Academic Press, 2019)Clicking on the button will copy the full recommended citation.
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Joseph F. Morrissey, International Sales Law and Arbitration: Problems, Cases, and Commentary (2nd ed., Aspen, 2018)Clicking on the button will copy the full recommended citation.
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Rebecca C. Morgan et al., Elder Law In Context (Wolters Kluwer, 2017)Clicking on the button will copy the full recommended citation.
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Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459 (2015)Clicking on the button will copy the full recommended citation.
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Joseph F. Morrissey, A Contractarian Critique of Citizens United, 15 U. Pa. J. Const. L. 765 (2013)Clicking on the button will copy the full recommended citation.
In Citizens United v. Federal Election Commission, a 5-4 majority overturned a congressional enactment limiting corporate electioneering. Decided in 2010, the Citizens United opinion has already been harshly criticized by a broad spectrum of people, ranging from President Obama to Ben & Jerry. A group of senators has even called for a constitutional amendment to undo the results of that decision.
In this article, I criticize the majority opinion in Citizens United for ignoring the prevailing contractarian view of a corporation. In so doing, the majority arrived at the false conclusion that corporations should be entitled to the constitutional protections of individual citizens. This article presents a new way of using the contractarian paradigm as a defense of corporation regulation.
Under the contractarian paradigm, corporations are understood as a nexus of contracts among the corporation’s constituents. The contractarians typically draw the normative conclusion that since parties freely enter into those contracts, parties should be at liberty to set whatever terms they like without government regulation.
My article argues for the opposite normative conclusion, that exactly because the contracts at stake are often not in fact bargained for freely or fairly, as the theoreticians argue, that there is need for government regulation to make sure that the contracting process and the resulting bargains are fair. I use contract law jurisprudence to show that defenses to contract enforcement ex post, can justify government regulation of corporations ex ante. Further, I develop this idea into a general analytical framework for assessing whether and when regulation of a corporation is both constitutional and prudential. I then illustrate how to use this paradigm by applying it to the Citizens United decision and to proposed regulatory responses to that decision.
This reconceived contractarian paradigm should empower both judicial and legislative bodies to appropriately regulate and even limit the activities of corporations. It is my hope that this article might encourage jurists and legislators to do just that.