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.

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.

This article, “Taking Lochner Out of the Closet,” is at the intersection of contract law, constitutional law, and sexual orientation law. The article offers a fresh and neutral analytical framework based on liberty of contract to advance gay rights. The framework might also be applied to other areas of concern where government regulation must be justified.

With respect to gay rights specifically, many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation. Advocates frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However such arguments are often defeated by counter arguments presented with religious, moral and even emotional fervor.

This article discusses and develops an alternative analytical framework that is perhaps more neutral and less emotional than pleas for equal protection or privacy, and that might be used to critically assess such restrictions. The argument is one based on the historic principles of liberty of contract. Those principles were prevalent during what has become known as the Lochner era, an era named for the infamous case of Lochner v. New York, which was decided in 1905. (Lochner held that a statute regulating working hours of bakers was unconstitutional). The Lochner case and the era named for it was dominated by a simple presumption that people should be allowed the liberty to order their own affairs through contract and that regulatory encroachments on that liberty interest would be evaluated critically. This article argues that it is with just such a presumption that restrictions denying individuals the liberty to pursue and have a family should be evaluated and, most likely, found to be unconstitutional.