Legal Theory Blog

Horwitz on Freedom of the Church

Paul Horwitz (University of Alabama School of Law) has posted Freedom of the Church Without Romance (Journal of Contemporary Legal issues, Forthcoming) on SSRN. Here is the abstract:

This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the idea of "freedom of the church" has taken on new champions -- and critics.

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion. Both historical and economic analysis of the concept of "freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions, or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church -- the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

Highly recommended.

Metzger on Gideon & Under-Enforcement of Sixth Amendment Rights

Pamela Metzger (Tulane University - Law School) has posted Fear of Adversariness: Using Gideon to Restrict Defendants' Invocation of Adversary Procedures (122 Yale Law Journal 2550 (2013)) on SSRN. Here is the abstract:

Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon’’s broken promise to our poor; this Essay is about Gideon’’s broken promise to our system.

With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon defendant’’s de facto relinquishment of important Sixth Amendment rights. As a result, counsel –– not client –– controls the invocation and exercise of the adversary procedures. And, even as to those Sixth Amendment rights still within a defendant’’s exclusive control, Strickland eviscerates a defendant’’s capacity to seek redress when counsel precludes the exercise of a fundamental right. As a result, Gideon has increasingly become an enforcer of the status quo –– a cog in the systemic machine that grinds continually toward under-enforcement of Sixth Amendment adversary rights.

Alschuler on Assistance of Counsel & Plea Bargaining

Albert W. Alschuler (University of Chicago Law School) has posted Lafler and Frye: Two Small Band-Aids for a Festering Wound (Duquesne University Law Review, Forthcoming) on SSRN. Here is the abstract:

This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press. Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely. Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.

Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial? The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve[].” Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”

The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve. Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires. This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials. It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population. By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it.

The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties. If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman. Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be.

Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.

Voon on IP & Health

Tania S. Voon (Melbourne Law School) has posted Growing Conflicts Between Intellectual Property Rights and Health ((2013) 2 European Intellectual Property Review (Forthcoming)) on SSRN. Here is the abstract:

This short paper explains a number of international developments demonstrating continuing tensions between intellectual property rights and health. In particular, it examines steps at the World Health Organization in relation to so-called 'counterfeit' medicines and the Protocol to Eliminate Illicit Trade in Tobacco Products, as well as domestic and international challenges to Australia's plain tobacco packaging law.

Irving on History & Constitutional Interpretation

Helen Irving (University of Sydney - Faculty of Law) has posted Constitutional Interpretation and the Discipline of History (Federal Law Review, Vol. 41, 2013, Forthcoming) on SSRN. Here is the abstract:

The use of history in constitutional interpretation is widespread. It is defended by scholars and practiced by judges, both in Australia and, in particular, the United States; it also attracts many critics. Originalism, (as this practice has come to be known), comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. What originalists and critics alike rarely consider is whether, and if so, how it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: If history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?

This paper explores what conventional historians do, (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism, but concludes that history should be used in constitutional interpretation only with great care and only rarely.

Kapczynski & Syed on the Excludability & Patent Law

Amy Kapczynski and Talha Syed (Yale University - Law School and University of California, Berkeley - School of Law) has posted The Continuum of Excludability and the Limits of Patents (Yale Law Journal, Vol. 122, No. 7, 2013) on SSRN. Here is the abstract:

In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensibly guiding investment toward inventions with the most social value. Existing accounts recognize that, in practice, signals of social value that patents facilitate may be attenuated because of, for example, transaction costs and limits on the scope and length of patent rights. We show here, however, a different problem with the conventional allocative account. The appropriability mechanism patents rely on, namely excludability, operates in asymmetrical ways for different kinds of information goods. While scholars have noted that patent systems fail to create goods whose value is difficult to appropriate in consumer markets, this fact has not been fully appreciated in the literature, nor have its implications for the standard justification for patents. Through detailed examples in the health context we show that some kinds of information goods will be much more difficult to exclude than others. Importantly, there is no reason to expect that the ease of exclusion will be correlated with social value. The analytic point that emerges is generalizable: patents themselves can have distortive effects, stemming from structural features of exclusion rights. Unlike the problem of attenuation, the problem of asymmetric nonexcludability cannot be resolved by increasing patent scope or length. Because excludability is variable along a continuum, property rights in information, even if formally perfected, and even assuming away conventional transaction costs, will create asymmetrical demand for different kinds of information goods. This argument provides an important new justification for alternatives to patents such as government funding and gives us new insights about how to allocate such funding. It also reinforces the need for a comparative institutional approach to innovation policy, and for incorporating into our debates currently unrecognized implications that patents may have for values such as privacy and free speech.

Gulati, Knight, & Levi on the Impact of U.S. Leon on Magistrate Judges

G. Mitu Gulati , Jack Knight and David F. Levi (Duke University - School of Law , Duke University and Duke University - School of Law) have posted In the Absence of Scrutiny: Narratives of Probable Cause on SSRN. Here is the abstract:

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the "good faith" exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not find any indication of diminished scrutiny. What we do find, however, is a highly ritualized and formalistic process for the evaluation of warrants where calculations of probabilities are viewed through a legalistic rather than a pragmatic lens.

Recommended.

Derclaye on Happiness & IP

Estelle Derclaye (University of Nottingham, School of law) has posted What Can Intellectual Property Law Learn from Happiness Research? (in G. Dinwoodie (ed.), Methods and Perspectives in Intellectual Property, Elgar Publishing, Forthcoming) on SSRN. Here is the abstract:

As the description of the 2012 ATRIP congress’s theme highlights, traditionally, scholars have used historical, doctrinal or comparative analyses, law and economics, political economy or philosophy, to discuss intellectual property law. Other methods such as empirical analysis, international relations, and human development are more recent. This paper looks at intellectual property law in a new way namely through the angle of happiness or well-being research.

The field of happiness research is not that recent but strangely, so far, happiness researchers have hardly discussed the relationship between well-being and technology despite the pervasive role of the latter in contemporary society. Likewise, the discussion of happiness is also rare in the legal field (except of course in (mental) health law) and it is absent from intellectual property law , except indirectly through the discussion of the capability approach in the discourse on intellectual property and development. I consciously leave the capability approach for another article but it needs to be noted that there are parallels to be drawn between the application of happiness research on the one hand and the capability approach on the other hand, to intellectual property law. In effect, the two approaches converge or are complementary in many respects.

There is a debate to be had about the value of happiness research for the field of intellectual property law. The discussion is worth having especially to check whether the current basis of intellectual property rights (IPR), and the norms that derive from it, are still up-to-date or else should be revised. This article focuses on the application of happiness research to patents and related rights, by and large designs, utility models and plant variety rights. However, a broader reflection of the relationship between happiness or well-being and other IPR such as copyright and trademarks, is worth pursuing as well. This article is obviously concerned only with one way to increase happiness, namely through the fostering of technology using the intellectual property system. There are many other ways to increase happiness, for instance to promote positive traits in a person, and this often does not need any technology. As Frey says, “[i]n current happiness research, [...] the integration among disciplines often go so far that it is not possible to identify whether a particular contribution is due to an economist, a psychologist, a sociologist or a political scientist.” In addition, many of their findings and recommendations coincide. Therefore, the paper will amalgamate the recommendations of the researchers in each branch (law, economics, political sciences, psychology, sociology and philosophy), only highlighting differences of opinion between the branches if and when they exist.

The article first traces the origin and history of happiness research, it then defines happiness (section 2) and summarises the findings (section 3) and the recommendations (section 5) of happiness research, after having determined that policy-makers should take happiness research into account (section 4). Finally, section 6 explains the relevance of happiness research to intellectual property law and draws from happiness research findings to propose a recalibration of patents and related rights’ goals and substantive law.

Govern on Alternatives to Targeted Killing

Kevin H. Govern (Ave Maria School of Law) has posted Warrant Based Targeting: Prosecution-Oriented Capture and Detention as Legal and Moral Alternatives to Targeted Killing (Arizona Journal of International & Comparative Law, Vol. 29, No. 3, (2012) (published 2013)) on SSRN. Here is the abstract:

Targeted killing has had significant political and military repercussions around the world in recent years, especially in the wake of 2011 operations against Osama bin Laden and Anwar al-Aulaqi. By contrast, adapting a time-tested, prosecution-oriented strategy to capture rather than to kill, warrant-based search and detention became the de jure required modality of dealing with insurgents and criminals alike in Iraq prior to coalition troop withdrawal. Use of search and detention, called "warrant-based targeting" since 2008, is also an emergent trend in combined and interagency operations, not only in present-day Afghanistan, but also in the international arena as a military adaptation to the prosecution-support function.

Despite popular misconceptions of an inherently bellicose connotation to the words target or targeting, the Department of Defense (DOD) defines target as: "An entity or object considered for possible engagement or other action," and "[i]n intelligence usage, a country, area, installation, agency, or person against which intelligence operations are directed," and defines targeting as: "The process of selecting and prioritizing targets and matching the appropriate response to them, considering operational requirements and capabilities." Warrant-based targeting, then, considers persons for possible intelligence and law enforcement engagement as targets for possible arrest and prosecution, rather than persons to be fired upon or engaged with the use of force.

Compelled by strategic necessity, the U.S. military has quietly adapted its procedures to search at the point of capture, and to detain using conventional and Special Operations Forces (SOF) organizational structures in the field, in order to maximize the prospects for host-nation prosecutions — all contrary to conventional wisdom about the incompatibility of such efforts with the military’s mission of "template-able aim points for easy targeting and destruction." Warrant-based targeting follows a guiding principle of military forces working alongside domestic and international security forces. Together, those forces assess threats, build credible bases for judicially-issued criminal arrest warrants, seek those warrants, apprehend suspects pursuant to those warrants while collecting evidence for prosecution, then hand off apprehended individuals along with evidence collected to competent civilian judicial and correctional authorities. As contrasted with proceedings pursuant to military tribunals, such an undertaking necessarily involves the effective use of information to seek a civilian judicial warrant for arrest, and works best in systems where transparent judicial processes militate against secrecy and promote public accountability.

This article examines warrant-based targeting and key lessons learned with respect to such operations, and proposes future locales where it might be effectively employed. Part II is an initial review of historical, warrant-based targeting examples that follows commentary on legal and operational matters making warrant-based targeting both necessary and proper in Iraq from 2009 onward. Part III discusses specific tactics, techniques, and procedures (TTP) involved in warrant-based targeting in Iraq, now carried over to operations in Afghanistan. From a broader perspective, and in order to apply warrant-based targeting beyond Iraq and Afghanistan, Part IV’s key lessons regard military cooperation with domestic law enforcement and judicial authorities. These lessons include: the necessity for proper collection and processing of forensic evidence; the inherent dilemma of military forces performing law enforcement roles; and the necessity to overcome a mindset that the military reaches "mission accomplished" status merely when it obtains the requisite warrant, collects evidence, and then carries out an arrest. Part V establishes what, in a world of ever-changing circumstances, the rule of law has come to mean and why warrant-based targeting matters to advancing the rule of law. Concluding comments in Part VI consider why this methodology is a meaningful, albeit complicated, alternative to the expediency of targeted killing.

Yordy on Same-Sex Marriage & Establishment

Eric D. Yordy (The W. A. Franke College of Business) has posted Caught in the Clause: An Analysis of Same-Sex Marriage Through the Lens of the Establishment Clause (22 Tul. J.L. & Sexuality 55, 2013) on SSRN. Here is the abstract:

This article addresses the conflict between marriage as a religious concept and marriage as a legal concept. It analyzes the "establishment" of religion when government defines marriage.

Hatzis on Greece & the Rule of Law

Aristides N. Hatzis (University of Athens - Department of Philosophy & History of Science) has posted Rule of Law, Individual Rights and the Free Market in the Liberal Tradition: The Case of Greece (Bridging the Gap: Arab-European Dialogue on the Basics of Liberalism, Ronald Meinardus, ed. Cairo: Friedrich Naumann Foundation for Liberty, 2013) on SSRN. Here is the abstract:

The western liberal tradition is closely connected with the idea of rights and the rule of law. Rule of law is the idea of a civil society governed by a Constitution which sets limits to government power and protects individual rights against any authority, even against the political will of a majority. The development of the western democratic theory from Ancient Athens to the British parliamentary system, the American Constitution and the French Revolution is mostly a development of two different and often contrasting principles: the democratic principle of people’s sovereignty and the liberal principle of the protection of individual rights. The balance between these two principles defines the quality of constitutional democracy. Greece was one of the first liberal democracies of the modern era. Nevertheless, contemporary Greece lags behind modern liberal democracies in many respects. The experience of Greece could be most useful for the new Arab democracies and Egypt in particular.

Parsont on Crowdfunding Exemptions from Investment Regulation

Jason W. Parsont (Columbia Law School) has posted Two Crowdfunding Exemptions on SSRN. Here is the abstract:

Crowdfunding is commonly defined as raising small amounts of money from a large number of people over the internet. Often, the returns on this method of financing – popularized by websites like Kickstarter – are limited to only rewards (like a free t-shirt) rather than stock in a company. In April 2012, a major title of the JOBS Act sought to change this status quo by directing the Securities and Exchange Commission to legalize securities-based crowdfunding through the Kickstarter model in order to aid the capital-raising efforts of fledging startups and small businesses. But this detailed exemption, open to all investors, was not the only crowdfunding exemption in the bill. A last minute compromise, which has been largely overlooked, added a second crowdfunding exemption limited to accredited investors only. This form of crowdfunding – accredited crowdfunding – is merely a Rule 506 private placement sold through an internet-based crowdfunding site, like AngelList, CircleUp, or FundersClub.

This article is the first to examine the impact that accredited crowdfunding will have on retail crowdfunding. It claims that accredited crowdfunding is likely to dominate and, depending on SEC action, could render retail crowdfunding superfluous. This would undermine the latter’s lofty goal of democratizing angel investing. The thesis is that issuers will only use retail crowdfunding if it is the best option under the relevant circumstances. But a careful comparison shows that issuers, as of now, will generally prefer accredited crowdfunding in most cases. Moreover, the SEC has limited ability to alter the calculus through its rulemaking power. After assessing the SEC’s options, the article claims that the SEC should act to encourage retail crowdfunding in only two specialized circumstances: as a follow-on to a Rule 506 offering and when issuers need or want to raise capital from over 2,000 individual investors, each investing, on average, less than $500. Applying a fundamental theory of the securities laws, the article makes specific recommendations for rules to achieve this goal.

Strang on "The Challenge of Originalism," edited by Huscroft & Miller

Lee J. Strang (University of Toledo College of Law) has posted The Challenge of, and Challenges to, Originalism (reviewing The Challenge of Originalism: Essays in Constitutional Theory, (Grant Huscroft & Bradley W. Miller, eds.). Cambridge, Cambridge University Press. 2011. PP. IX, 305) on SSRN. Here is the bstract:

The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics.

The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism’s relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them.

The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates.

In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism’s sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism’s continuing and broad-based allure — the reason it presents a challenge — the Constitution’s writtenness.

Highly recommended.

Miller & Perry on an Economic Analysis of Defamation

Alan D. Miller and Ronen Perry (University of Haifa - Faculty of Law and University of Haifa - Faculty of Law) have posted A Group's a Group, No Matter How Small: An Economic Analysis of Defamation (Washington and Lee Law Review, Vol. 70, 2013) on SSRN. Here is the abstract:

Consider the following case (Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1101 (Fla. 2008)): A Jews-for-Jesus bulletin publishes a report, falsely implying that a Jewish woman became "a believer in the tenets, the actions, and the philosophy of Jews for Jesus." Does this publication constitute defamation? What makes a statement defamatory? Should defamatoriness be determined in accordance with the views of the general non-Jewish community, with those of the Jewish minority, or with a normative ethical commitment? Our Article aims to provide the answers.

Part I demonstrates that the definition of defamatoriness in common law jurisdictions is essentially empirical, and distinguishes between the two leading tests — the English test and the American test. Section A shows that English courts have embraced the general community test, whereby a statement is defamatory if considered so by the public at large. The traditional English test, which relies on empirical observations, at least de jure, consists of a normative constraint. A statement is defamatory if considered so by the general community, taking into account only the views of "right thinking" people. Section B shows that American courts have generally endorsed the sectorial test, whereby a statement is defamatory if considered so by a substantial and respectable minority. This test integrates two constraints. On the quantitative level, although a statement can be defamatory if it prejudices a person in the eyes of a minority, that minority must be substantial. A single individual or a very small group of persons with peculiar views will not suffice. On the qualitative level, a statement may be defamatory if considered so by a mere minority, provided that it is a "respectable" one. The court will reject the sectorial standard if it does not comply with the normative threshold. A third possible empirical test, whereby the defamatory potential of a statement may be tested within a small group (the small group test), has not been adopted in any jurisdiction, and will not be presented in Part I. However, Part II demonstrates that it is economically preferable to both the English and the American tests.

Part II conducts two separate economic analyses of the alternative empirical tests for defamation. In the first analysis, we use a theorem from the economic field of social choice to study the relationship between the view of the community and the views of the individuals who comprise the community. We show that if the former is derived from the latter, and the derivation satisfies several normatively desirable properties, then the derivation must be done according to the unanimity rule: A statement may be considered defamatory only when all individuals in the relevant community consider it so. Because this rule is implausible except in the case of the small group test, it suggests that both the English general community test and the American sectorial test lack a solid theoretical foundation. In the second analysis, we study the costs and benefits associated with the various tests. We show that the important costs involved are the chilling effect and the problem of strategic action, and that the American sectorial test may have constituted a reasonable tradeoff between these concerns. We then argue that the fault requirement introduced in Gertz v. Robert Welch, Inc. should apply to both the falsity and the defamatory nature of the statement. Under this interpretation, the fault requirement ameliorates the chilling effect. As a result, the American sectorial test is no longer optimal, and it would be preferable from the standpoint of economic efficiency to adopt the small group test in its place.

Corbin & Smith on the Contraception Mandate

Caroline Mala Corbin and Steven Douglas Smith (University of Miami School of Law and University of San Diego School of Law) have posted Debate: The Contraception Mandate and Religious Freedom (University of Pennsylvania Law Review Online, Vol. 161, No. 261, 2013) on SSRN. Here is the abstract:

In this online exchange, Steven D. Smith and Caroline Mala Corbin debate the wisdom of religious exemptions from the contraception mandate.

Professor Smith argues that as applied to objecting religious employers, the mandate violates the Religious Freedom Restoration Act, and that contrary arguments are better understood as taking a position against rather than under RFRA. In his conclusion, Prof. Smith argues that free exercise extends to religious associations and institutions, not just to religious individuals.

Professor Corbin disagrees on both points. First, one need not oppose RFRA to conclude that it does not require exemptions from the contraception mandate. Not every asserted burden amounts to the type of substantial burden that RFRA was designed to accommodate. Second, granting extensive religious liberty rights to employers, whether corporations or their owners, overlooks the rights of their less privileged and less powerful employees.

Recommended.

Legal Theory Lexicon: The Rule of Law

Introduction

This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory.

What is the Rule of Law?

The ideal of the rule of law can be traced back at least as far as Aristotle and is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even some readical critics acknowledge that observance of the ideal could curb abuses of the powerless by the powerful.

What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure.

Dicey's Influential Formulation

Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:

(1) the supremacy of regular law as opposed to arbitrary power; 
(2) equality before the law of all persons and classes, including government officials; and,
(3) the incorporation of constitutional law as a binding part of the ordinary law of the land.

Rawls on the Rule of Law

A contemporary elaboration of the ideal of the rule of law is provided by John Rawls. He defines the rule of law as "the regular, impartial, and in this sense fair" administration of "public rules." In schematic form and with some alterations, Rawls offered the following conception of the rule of law:

1. The Requirement that Compliance Be Possible. The legal system should reflect the precept that ought implies can. 

a. The actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.
b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate.
c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.

2. The Requirement of Regularity. The legal system should reflect the precept that similar cases should be treated similarly. 

a. Judges must justify the distinctions they make between persons by reference to the relevant legal rules and principles.
b. The requirement of consistency should hold for the interpretation of all rules.

3. The Requirement of Publicity. The legal system should reflect the precept that the laws should be public.

a. The laws should be known and expressly promulgated.
b. The meaning of the laws should be clearly defined.

4. The Requirement of Generality. Statutes and other legal rules should be general in statement and should not be aimed at particular individuals. 
5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases. 

a. A legal system ought to make provision for orderly and public trials and hearings. 
b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry. 
c. A legal system ought to provide a process reasonably designed to ascertain the truth.
d. Judges should be independent and impartial, and no person should judge her own case.

Absent from Rawls's formulation is the notion that the rule of law requires that the government and government officials be subject to the law. Thus, a sixth aspect of the rule of law might be added to Rawls' formulation as follows:

6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.

a. Government officials should not be above the law.
b. The legality of government action should be subject to test by independent courts of law.

More can be said about the content of the ideal of the rule of law, but this brief exposition provides sufficient clarity for for this brief introduction.

The Values Served by the Rule of Law

What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.

Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulwark against tyranny, chaos, and injustice. 

The Rule of Law and Bad Law

One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law. 

Conclusion

Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when its introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves. 

Related Lexicon Entries

• Legal Theory Lexicon 023: Procedural Justice

Bibliography

• Albert Dicey, The Law of the Constitution 194 (London: MacMillan, 9th ed., 1950)
• Richard H. Fallon, Jr., The Rule of Law" as a Concept in Constitutional Discourse, 97 Columbia Law Review 1-56 (1997)
• Joseph Raz, The Rule of Law and its Virtue, 93 LQR 195-202 ((1997) & reprinted in The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979)
• Judith N. Shklar (1987), "Political Theory and the Rule of Law", in Hutchinson and Monahan (eds.) The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1.
• Lawrence B. Solum, Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)
• Tamanaha, Brian. On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004).
• Jeremy Waldron (2002), Is the Rule of Law an Essentially Contested Concept (in Florida)?, Law & Philosophy, vol. 21/2, 2002.

(Last revised on June 16, 2013.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Meaning of Property: Freedom, Community, and the Legal Imagination by Jedediah Purdy. Here is a description:

In his latest book, Jedediah Purdy takes up a question of deep and lasting importance: why is property ownership a value to society? His answer returns us to the foundations of American society and enables us to interpret the writings of the patron saint of liberal economics, Adam Smith, in a wholly new light.

Unlike Milton Friedman and other free-market scholars, who consider property a key to efficient markets, Purdy draws upon Smith’s theories to argue that the virtues of wealth are social rather than economic. In Purdy’s view, ownership does much more than shield one from government interference. Property shapes social life in ways that bring us closer to, or take us farther from, the ideal of a community of free and equal members. This view of property is neither libertarian nor communitarian but treats the community as the precondition of individual freedom. This view informed U.S. law in the early days of the republic, Purdy writes, and it is one that we need to restore today.

Touching upon some of the most charged issues in American politics and law, including slavery, inheritance, international development, and climate change, The Meaning of Property offers a compelling new view of property and freedom and enriches our understanding of democratic society.

And from the reviews:

“Jedediah Purdy gives us a sweeping and insightful look at how the founders of our Republic understood property – not as a means of allocating resources more efficiently or promoting economic growth and investment, but as a foundation stone of liberty and democracy. With this fundamental insight, Purdy gives new meaning to a host of issues that have perplexed and divided the nation. A wonderful contribution.” ––Robert B. Reich, University of California at Berkeley

“Purdy is a national treasure. His unique blend of history, philosophy, and common sense teaches us what we need to know about property in the wake of the subprime crisis.”—Joseph William Singer, Bussey Professor of Law, Harvard Law School

"In this sparkling and penetrating intellectual tour de force, Jed Purdy gives fresh meaning and purpose to Adam Smith's insight that a legal institution—property—could be the key element in a vision of social life that integrates the values of prosperity, freedom and virtuous character." —Robert W. Gordon, Chancellor Kent Professor of Law and Legal History, Yale University

"Provides a provocative assessment of some of the present-day controversies involving property."—Choice

Download of the Week

The Download of the Week is Originalism Talk: A Legal History by Mary Ziegler. Here is the abstract:

Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism. 

Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles. 

The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.

Thurnher on Autonomous Weapon Systems & the Law of Armed Conflict

Jeffrey S. Thurnher (Naval War College - International Law Department) has posted Examining Autonomous Weapon Systems from a Law of Armed Conflict Perspective (New Technologies and the Law Of Armed Conflict (Hitoshi Nasu & Robert McLaughlin eds.)) on SSRN. Here is the abstract:

This chapter explores the legal implications of autonomous weapon systems and the potential challenges such systems might present to the laws governing weaponry and the conduct of hostilities. Autonomous weapon systems are weapons that are capable of selecting and engaging a target without further human operator involvement. Although such systems have not yet been fully developed, technological advances, particularly in artificial intelligence, make the appearance of such systems a distinct possibility in the years to come. In fact, several experts predict autonomous weapons will become the norm on the battlefield within twenty years. Given such a possibility, it is essential to look closely at both the relevant technology involved in these cutting-edge systems and the applicable law. This chapter commences with an examination of the emerging technology supporting these sophisticated systems, by detailing autonomous features that are currently being designed for weapons and anticipating how technological advances might be incorporated into future weapon systems. A second aim of the chapter is to describe the relevant law of armed conflict principles applicable to new weapon systems, with a particular focus on the unique legal challenges posed by autonomous weapons. The legal analysis will outline both how autonomous weapon systems would need to be designed for them to be deemed lawful per se, and whether the use of autonomous weapons during hostilities might be prohibited in some manner under the law of armed conflict. The third and final focus of this chapter is to address potential lacunae in the law dealing with autonomous weapon systems. In particular, the author will reveal how interpretations of and issues related to subjectivity in targeting decisions and overall accountability may need to be viewed differently in response to autonomy.

Karton on Global Law

Joshua D. H. Karton (Queen's University (Canada) - Faculty of Law) has posted Global Law: The Spontaneous, Gradual Emergence of a New Legal Order (17(2) Tilburg Law Review, pp. 276-284, 2012) on SSRN. Here is the abstract:

This article argues that the debate over whether international law can apply to non-state actors misses the point. The useful distinction is not between rules that regulate the obligations of states and those that regulate the obligations of non-state actors, but rather between rules that regulate the reciprocal obligations of states to each other (international laws) and rules that set global standards that must be obeyed by all entities, state and nonstate alike, regardless of national laws and boundaries. This latter category is the emerging phenomenon of global law. Global laws take varying forms, but they all seek to bind the entire globe to a singular global standard — they do not so much cross national boundaries as ignore them. Global law remains inchoate, but is increasing in both scope and coherence. Those seeking to predict the course that global law will take can look to the current example of international commercial arbitration, which is global law par excellence.

Murchison on Jury Nullification in Canada

Melanie Janelle Murchison (Queen's University Belfast - School of Law) has posted Law, Morality and Social Discourse: Jury Nullification in a Canadian Context on SSRN. Here is the abstract:

In the thirty years since the inception of the Canadian Charter of Rights and Freedoms there have been three cases of attempted jury nullification, resulting in varies degrees of success. This thesis will provide an overview of the process jury nullification as well as a discussion on the current Canadian jurisprudence, including all three cases (R. v. Morgentaler, R. v. Latimer and R. v. Krieger). This analysis will be undertaken using two competing theoretical viewpoints: those of neo-natural law theorist Ronald Dworkin and social theorists Alan Hunt and Michel Foucault. Ultimately this thesis will conclude that while it is beneficial to approach the phenomenon of jury nullification using Dworkin’s theory of “law as integrity”, it alone cannot sufficiently explain the process and it is through using both natural law and social theory that jury nullification can be best understood.

Alexander on Constitutional Theory

Larry Alexander (University of San Diego School of Law) has posted Constitutional Theories: A Taxonomy and (Implicit) Critique on SSRN. Here is the abstract:

I am honored to have been invited to present this Madison lecture, and I want to thank my hosts, Robby George and Brad Wilson, for their hospitality and for the excellence achieved by the Madison program under their stewardship.

My charge was to present something on constitutional theory. Now, as you shall see, I do work in one corner of constitutional theory; and, of course, I believe it is the right corner to work in, and that all constitutional theorists should be working in my corner. The baleful truth, however, is that most constitutional theorists reject that claim, and this despite several articles of mine urging them to do otherwise. So, to date I have failed in my normative aspirations regarding constitutional theory. And this lecture will steer clear of preaching to the unconverted.

What I intend to do instead is to categorize the extant approaches to constitutional theory, including mine. I am going to taxonomize rather than criticize — although, I confess, some criticisms will seep through, albeit mainly implicitly.

Recommended.

Abrams on Plenary Powers Preemption

Kerry Abrams (University of Virginia School of Law) has posted Plenary Power Preemption (Virginia Law Review, Vol. 99, No. 601, 2013) on SSRN. Here is the abstract:

This Essay responds to the Supreme Court’s recent decision in Arizona v. United States, which struck down all but one of the disputed sections of Arizona’s S.B. 1070 immigration law. It advances the theory that although the Arizona Court purported to apply classic conflict and field preemption analyses, it was actually using a different form of preemption, one that gives particular weight to federal interests where questions of national sovereignty are at stake. The Court did so through doctrinal borrowing of the “plenary power doctrine,” which gives the political branches special deference when passing or executing immigration legislation, even where doing so would otherwise violate individual constitutional rights. This Essay labels the form of preemption used in Arizona and other alienage cases “plenary power preemption.” It shows how this doctrine developed over time, as the scope of the legitimate exercise of state police power and federal immigration changed, and federal and state regulation of noncitizens became more complex and enmeshed. It argues that plenary power preemption has two important effects: it allows courts to evade the thorny question of the scope of executive — as opposed to legislative — power over immigration, and it substitutes for the lack of an equal protection doctrine.

Isiksel on Turkey's Authoritarian Constitutionalism

Turkuler Isiksel (Columbia University) has posted Between Text and Context: Turkey's Tradition of Authoritarian Constitutionalism (Forthcoming in International Journal of Constitutional Law) on SSRN. Here is the abstract:

Constitutionalism is often understood to mean more than mere adherence to the formal terms of a constitution. Beyond this, it is usually associated with structuring the exercise of public power in line with a core set of principled commitments and, in doing so, rendering it legitimate. That said, it is possible to imagine a political system that practices robust constitutional discipline without meeting basic expectations of democracy, fundamental rights, human dignity, justice, or equality. With the example of the 1982 Turkish Constitution in mind, this article develops a theory of “authoritarian constitutionalism” as a system in which the constitution, rather than constraining the exercise of public power, is coopted to sanction oppressive uses of it. This discussion is situated against the backdrop of the enduring problem of “parchment barriers” in constitutional theory: authoritarian constitutionalism is instructive for understanding the extent to which the writ of the constitution shapes the beliefs, actions, and aspirations of the actors who inhabit the regime. When constitutional rule is marshaled to consolidate state power, it is strikingly effective at thwarting attempts at democratic reform. This suggests that constitutions do, in fact, “matter,” though not uniformly as a force for political liberalization.

Bauries on Oldfather, Bockhorst, & Dimmer on Automated Content Analysis

Scott R. Bauries (University of Kentucky College of Law) has posted 'Testing' Fuller's Forms and Limits: A Brief Response to Oldfather, Bockhorst, & Dimmer (65 Fla. L. Rev. Forum 1 (2013)) on SSRN. Here is the abstract:

This is a brief response to Chad M. Oldfather, Joseph P. Bockhorst, and Brian P. Dimmer, "Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship," 64 Fla. L. Rev. 1189 (2012).

Turner, Bessen, Neuhausler, & Williams on Costs & Benefits of U.S. Patents

John L. Turner (University of Georgia - C. Herman and Mary Virginia Terry College of Business - Department of Economics), James E. Bessen (Boston University - School of Law; Research on Innovation), Peter Neuhausler (Fraunhofer Institut für Systemtechnik und Innovationsforschung), & Jonathan W. Williams (University of Georgia - C. Herman and Mary Virginia Terry College of Business - Department of Economics) have posted The Costs and Benefits of United States Patents on SSRN. Here is the abstract:

We use a detailed data set to estimate the costs and benefits of United States patents. To estimate costs, we combine data from Derwent Litalert with a proprietary dataset of non-practicing entity (NPE) lawsuits collected by Patent Freedom, and use an event study approach to estimate losses suffered by alleged infringers during 1984-2009. To estimate benefits, we combine patent data from the USPTO and EPO with financial data from CRSP and COMPUSTAT, and use market-value regressions to estimate the value of patent rents for publicly-traded US firms during 1979-2002. We find that costs exceed benefits overall and that the gap between costs and benefits has grown across time. Surges in the number of NPE lawsuits, lawsuits filed over Computers/Communications patents, and lawsuits brought against non-manufacturing, software and telecommunications firms contribute to the increase in the gap. Growth in costs outstrips growth in lawsuits, in part, because events in these fast-growing categories have higher-than-average per-event dollar costs.

Lehavi on Control over Decision-Making in Private Legal Organizations

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Concepts of Power: Majority Control and Accountability in Private Legal Organizations (Virginia Law & Business Review (Forthcoming)) on SSRN. Here is the abstract:

This Article offers an innovative cross-field analysis of how control over decision-making is established and regulated within private legal organizations, focusing on business corporations, residential community associations, and labor unions. While diverging in their historical origins, stakeholders’ composition, and specific norms of internal governance, these organizations share an underlying set of challenges regarding both the bottom-up formation of credible coordination to solve collective action problems and the top-down ordering of their legal power and authority. This common ground calls for a unified theoretical analysis that does not merely fall back on simplistic attempts to classify these organizations as either purely-private or quasi-public enterprises.

While private legal organizations implicate various axes of stakeholders’ relations, this Article focuses on modes of control and accountability among direct members: shareholders in the business corporation, homeowners in the residential community, and labor union members.

The Article argues that US law works with a different set of assumptions and modes of intervention in regulating majority-minority relations for each such organization. In business corporations, the law recognizes and to some extent legitimizes potential stratification and power imbalance among different classes of shareholders, while imposing special duties on controlling stockholders. As for labor unions, lawmakers are well aware of power-play dynamics and the lack of markets for union control, but work to flatten internal hierarchies so as to formally eradicate class division. In residential communities, enabling legislation views homeowners as inherently equal in organizational power and remains silent on pre-organized block voting.

Beyond examining the integrity of the law’s work across private legal organizations -- i.e., does the current differential legal treatment of these organizations hold true -- the Article sets the ground for studying how a consolidated theoretical framework for these organizations corresponds with broader social and cultural concepts of power, hierarchy, and accountability in the US and across other societies.

Schrag on MOOCs & Legal Education

Philip G. Schrag (Georgetown University - Law Center) has posted MOOCs and Legal Education: Valuable Innovation or Looming Disaster? on SSRN. Here is the Abstract:

Massive open online courses (MOOCs) have spread across the landscape of higher education like an invasive plant species. Although few people had heard of MOOCs before 2012, these internet-based courses, taught by university professors, are now routinely offered simultaneously to tens of thousands or in some cases, hundreds of thousands of people. Most MOOCs are still provided free of charge, but the two companies and one non-profit entity that promote MOOCs and provide the software have recently created partnerships with institutions of higher education in order to realize substantial revenues by offering MOOCs for academic credit to tuition-paying students at colleges and universities. Despite resistance from professors at some institutions, MOOCs for credit are proliferating rapidly. This development has great significance for the future of legal education, because most law schools are experiencing an economic crisis and are searching for ways to cut costs and lower tuition so that they can fill their classes and remain viable. Already, some law schools are offering academic credit for distance learning, within limits permitted by the Section of Legal Education of the American Bar Association—limits that may soon be relaxed. Within ten years, MOOCs could replace traditional law school classes altogether, except at a few elite law schools that produce lawyers to serve large corporations and wealthy individuals. However, most law schools might survive by embracing rather than resisting internet-based learning. They could cut costs by reducing faculty and staff positions, using MOOCs for the delivery of most of the legal information that students need, hiring part-time lawyers to help students with exercises to supplement the MOOCs, and concentrating the remaining full-time faculty on first-semester offerings, writing seminars, and clinics. Sadly, the result will be a watered-down form of legal education compared to the three years of interactive experiences that law schools have offered students for the last century. But it may be the only way in which most law schools can survive.

Interesting & recommended.

Alexander on Principles

Larry Alexander (University of San Diego School of Law) has posted What are Principles, and Do They Exist? on SSRN> Here is the abstract:

In this paper I distinguish principles from rules and standards and ask if there are norms that fit this description. I conclude that these may be moral principles but that there are no legal principles. Accounts of law such as Dworkin’s and Alexy’s, in which legal principles play a role, are thus vitiated.

Highly recommended.

Hutchison on Progressive Constitutionalism & African-American Progress

Harry G. Hutchison (George Mason University - School of Law) has posted Achieving Our Future in the Age of Obama?: Lochner, Progressive Constitutionalism, and African-American Progress (Journal of Gender, Race & Justice, Forthcoming) on SSRN. Here is the abstract:

It is clear that the New Deal era was the most important and wide-ranging period of constitutional change since the Civil War. Equally clear, the events that catalyzed the New Deal were echoed more recently by the economic and financial collapse of 2008, which sparked President Obama’s current efforts to save American capitalism. In this regard, three things are worth noting: first, President Obama’s recovery plans, taken together will leave the government permanently bigger, more costly, and more intrusive; second, his approach to the current crisis recalls the efforts of his predecessor and model, Franklin D. Roosevelt; and third, such efforts appear to be marred by contradiction. Despite President Obama’s efforts, and in spite of sporadic evidence that the United States is beginning to emerge from one of the most devastating economic slides in its history; American workers, black and white, must tackle anxiety that is elevated by allegations of falling or stagnant wages, increasing employment uncertainty, and growing disparities in nonwhite versus white unemployment rates. Amidst recent evidence that the latter trend has accelerated, the pertinent question that confronts us today is whether the fundamental change offered by the Obama administration will lead to consequences which mirror results that dogged the New Deal.

It is, therefore, an opportune time to consider whether the constitutional law and policy implications that can be drawn from the New Deal offer a secure foundation for questioning various Obama administration initiatives that are tied to progressive teleology. And this issue is particularly important to the lives and future of African Americans, despite the Supreme Court’s acclaimed commitment to the protection of, “discrete and insular minorities." Emphasizing an ethical and consequentialist dimension, and based on a 2012 symposium presentation at the University of Pennsylvania Law School, this article shows that African Americans and other outsiders have much to fear from the replication of FDR’s policies by the Obama administration. Unless the Supreme Court can muster the courage to intervene on behalf of the truly disadvantaged among us, which is highly doubtful, it is probable that history will repeat itself.

Alderman on the First Amendment & Filming Police Activity

Jesse H. Alderman (Boston College - Law School) has posted Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity on SSRN. Here is the abstract:

After a wave of high profile arrests of smartphone-toting citizens whose only crime was recording police officers in the exercise of their public duties, constitutional challenges to state wiretapping laws that prohibit such activity has reached two circuit courts of appeals. In 2011, the U.S. Court of Appeals for the First Circuit issued its opinion in Glik v. Cunniffe, holding that not only did the First Amendment right to record police exist, but, despite a paucity of case law, this right was so "self-evident" to be considered of longstanding vintage. In 2012, the U.S. Court of Appeals for the Seventh Circuit followed suit in Alvarez v. ACLU. Like the First Circuit, the Seventh Circuit located the right to record police within the compass of the First Amendment’s protection of the inextricably related constellation of rights to gather, disseminate, and receive information of public importance. The court enjoined enforcement of Illinois’s notably draconian eavesdropping statute as applied to civilian recordation of police officers in the public exercise of their official duties, over the dissent of conservative Judge Richard A. Posner. This Article examines the several unanswered legal questions that remain in the wake of Glik and Alvarez. Though Glik and Alvarez hold sway only within their respective jurisdictions, it seems likely that the right to record public police activity will be treated as universal. Opinions of the Ninth and Eleventh Circuits contain terse recognition dicta of such a First Amendment liberty, while no courts have rendered an opinion to the contrary. Indeed, the U.S. Supreme Court denied a petition for certiorari from the Cook County State’s Attorney’s office in Alvarez. However, there remain questions regarding the definition of the right and its placement in existing First Amendment jurisprudence. Similarly, it has been left unsettled whether the right is one that will be susceptible to vindication in civil rights actions pursuant to 42 U.S.C. § 1983 ("§ 1983"). Part II of this Article provides summaries of the Glik and Alvarez opinions and recites the key arguments in Judge Posner’s dissent. Part III identifies four unanswered questions that remain unsettled in the wake of the Glik and Alvarez holdings. Part III.A. examines whether future courts analyzing the issue will be persuaded by Judge Posner’s dissent and determines that the dissent — while a thought provoking commentary — is too divorced from cognizable First Amendment jurisprudence to be persuasive. Part III.B. asks which constitutional standard of review future courts will apply when laws that interfere with the right to record public police activity are challenged. After analysis of the Seventh Circuit’s justification for application of "intermediate scrutiny," this Part concludes that more substantial constitutional arguments militate in favor of testing these challenges under "strict scrutiny." Part III.C. acknowledges that both Glik and Alvarez only stand for the proposition that "open" recordation of police is safeguarded by the First Amendment. After a brief summary of states that prohibit at least some forms of surreptitious recording of police, Part II.C. proposes that an open-surreptitious dichotomy in the enforcement of wiretapping laws, as applied to recorders of police, is untenable, and criminalization of surreptitious recording of police officers performing their public duties should fail even under the more deferential intermediate scrutiny calculus. Finally, Part III.D. examines whether the right to record police is "clearly established" under the First Amendment, a finding that, if made by future courts, would vitiate qualified immunity from civil liability for government actors who violate the right.

Lim on the Normativity of Legality

Brendan Lim (Yale Law School) has posted The Normativity of the Principle of Legality (Melbourne University Law Review, Forthcoming) on SSRN. Here is the abstract:

The constitutional justification for the principle of legality has been transformed. Its original basis in a positive claim about authentic legislative intention has been repudiated. The contemporary dominance of statutory law exposes descriptive error in supposing any improbability in legislative intentions to abrogate common law rights. Two rival justifications for the principle have emerged in response. One is a refined positive claim: legislatures do not intend to abrogate ‘fundamental’ rights. Another is a normative claim: courts should attribute an intention not to abrogate rights in order to improve the political process. Distinguishing these justifications answers the vexed question of which rights engage the principle of legality. Fundamentality, in the first claim, takes content from its justificatory function. The normativity of the second claim implies engagement not by ‘fundamental’ rights, but by ‘vulnerable’ rights. ‘Vulnerable’ rights may originate not only in the common law but also in statutes.

Edward on the Moral Case for Europe

David Edward (University of Edinburgh) has posted The Moral Case for Europe on SSRN. Here is the abstract:

This paper addresses two questions, "What is Europe?" and "Can there be a moral case for what is, after all, only a geographical expression?" In the paper, the word 'Europe' is used in a wide sense, not confined to the European Union.

Schroeder on "The Rule of the Clan" by Weiner

Jeanne L. Schroeder (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Family Feud: Mark Weiner, The Rule of the Clan on SSRN. Here is the abstract:

In The Rule of the Clan, legal historian Mark Weiner confronts the paradox that freedom requires law. He takes aim at one common assumption of libertarian political theory: a strong state is a threat to individual freedom. He warns that nostalgia for earlier, simpler societies is a deluded fantasy.

Weiner examination of traditional societies throughout the world and across history show that they share a single broad organizational structure that belies their facial diversity: the clan. Within the clan, man, and even more strikingly, woman, is neither free nor an individual. She is subordinate to her function within the group – in the case of woman, reproduction. In the clan, there are no individual rights protected by law, only the honor of the extended family to be avenged by feud. Adopting the terminology of “founding father of legal history and legal anthropology, Henry Sumner Maine”, Weiner argues that individual rights only come into being with the development of the state when Status relations are superceded by Contract.

Surprisingly, in his defense of the classical liberal ideal of individual rights and equality, Weiner implicitly rejects one of liberalism’s founding propositions: a vision of the free individual in the state of nature. Weiner’s thesis is more consistent with the speculative tradition of Continental theory than with American liberalism.

Rosenfeld on a Post-Secular Constitutional Polity

Michel Rosenfeld (Benjamin N. Cardozo School of Law) has posted Recasting Secularism as One Conception of the Good among Many in a Post-Secular Constitutional Polity (Susanna Mancini and Michel Rosenfeld (eds.), Constitutional Secularism in an Age of Religious Revival, Oxford University Press (Forthcoming)) on SSRN. Here is the abstract:

Modern Enlightenment based constitutionalism accords secularism a privileged position: by remaining secular, the public sphere should warrant neutrality among religions and among the latter and non-religious ideologies in order to provide an optimal setting for the realization of freedom of religion as well as of freedom from religion. In recent decades, however, this institutional secularism has come under intense attack from a number of different quarters intent on dislodging it from its constitutional pedestal. These attacks have targeted secularism’s claim to neutrality from religious as well as non-religious perspectives. So long as secularism is the target and as its constitutionally privileged place is perceived as not fully eliminated, it can easily be portrayed as benefitting from an unfair advantage in the clash of ideologies. But what if secularism lost all priority, preference or advantage in the constitutional firmament? In that case, should secularism stand on an equal footing with religion? Or should it be cast as the irreligious or anti-religious in a struggle against religion? Or else, should secularism reemerge as primus inter pares or, on the contrary, as subordinate among all existing competing conceptions of the good?

In this Chapter, I explore the case for “ideological” secularism as one of many conceptions of the good competing against others in a post-secular constitutional polity. Adopting a pluralist perspective, I conclude that under current circumstances ideological secularism is easier to defend than institutional secularism.

Interesting and recommended.

Goldoni on Political Constitutionalism & Reasoning About Rights

Marco Goldoni (University of Glasgow - Faculty of Law & Financial Studies) has posted Constitutional Reasoning According to Political Constitutionalism on SSRN. Here is the abstract:

This article examines and assesses virtues and limits of the contribution of political constitutionalism to the question of reasoning about rights. In the first section, the role of legislatures in deciding about rights is examined and compared to judicial reasoning. The main tenets of the parliamentary style of politics are sketched out. The second section tries to establish that weak judicial review of legislation is compatible with political constitutionalism, but it shows also that some forms of strong judicial review may be necessary in certain cases. In order to prove this latter point, the third section takes the Hirst case as its focus. From an analysis of the parliamentary debate on the issue of prisoners’ right to vote, it is noted that the political process is not always the best institution for adjudicating questions that concern directly the political process itself and that are constitutive of the whole political system. The last section pushes this point a little further by showing that the pre-conditions of the political constitution are rarely taken into account by political constitutionalists. In this respect, constitutional rights that form constitutive aspects of the political process may deserve a stronger protection than other rights and in this respect judicial review might play an important role.

May 31, 2013 Abstract: This article examines and assesses virtues and limits of the contribution of political constitutionalism to the question of reasoning about rights. In the first section, the role of legislatures in deciding about rights is examined and compared to judicial reasoning. The main tenets of the parliamentary style of politics are sketched out. The second section tries to establish that weak judicial review of legislation is compatible with political constitutionalism, but it shows also that some forms of strong judicial review may be necessary in certain cases. In order to prove this latter point, the third section takes the Hirst case as its focus. From an analysis of the parliamentary debate on the issue of prisoners’ right to vote, it is noted that the political process is not always the best institution for adjudicating questions that concern directly the political process itself and that are constitutive of the whole political system. The last section pushes this point a little further by showing that the pre-conditions of the political constitution are rarely taken into account by political constitutionalists. In this respect, constitutional rights that form constitutive aspects of the political process may deserve a stronger protection than other rights and in this respect judicial review might play an important role.

Perry on the Morality of Human Rights

Michael J. Perry (Emory University School of Law) has posted The Morality of Human Rights on SSRN. Here is the abstract:

In the period since the end of the Second World War, there has emerged what never before existed: a truly global morality. That morality — which I call “the morality of human rights” — consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights.

I begin, in the first section of this essay, by explaining what the term “human right” means in the context of the internationalization of human rights. I also explain both the sense in which some human rights are, in some legal systems, “legal” rights and the sense in which all human rights are “moral” rights.

Then, in the longer second section, I turn to the inquiry that is my principal concern in this essay: Why should one take seriously the imperative that serves, in the morality of human rights, as the normative ground of human rights? That is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”?

This essay, the final draft of which will be published in a symposium issue of the San Diego Law Review, was my contribution to the conference on “The Status of International Law and International Human Rights” that was held at the University of San Diego School of Law on May 3-4, 2013, under the auspices of the School’s Institute of Law and Philosophy. Some of the material in this essay is drawn from my new book, Human Rights in the Constitutional Law of the United States (2013). Most of the material here that is not drawn from my book was first presented in a lecture I was honored to deliver at Santa Clara University in March 2013, under the auspices of the Bannon Institute of the Ignatian Center for Jesuit Education.

Nagle on Environmental Harms of Renewable Energy

John Copeland Nagle (Notre Dame Law School) has posted Green Harms of Green Projects (27 Notre Dame Journal of Law, Ethics & Public Policy 59 (2013)) on SSRN. Here is the abstract:

This article describes the recent development of renewable energy to examine environmental law’s three contrasting approaches to the green harms of green projects. Sometimes the law allows the green benefit regardless of the green harm. Sometimes the law prohibits the green harm regardless of the green benefit. And sometimes the law allows a balancing of all of the harms and benefits, green or not. Given these options, I argue that the law should not ignore or understate green harms even if they are caused by green projects. There are some types of green harms that no benefit can justify. But if we decide that the benefits of a green project are so significant that we should tolerate its green harm, then we should also be willing to tolerate environmental harms from other projects that produce different kinds of benefits.

Jaworski on Originalism & Progressivism

Peter Martin Jaworski (Georgetown University) has posted Originalism All the Way Down: Or, the Explosion of Progressivism (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN. Here is the abstract:

At least on its face the very same problems of interpretation apply to the written judgments of the Supreme Court as apply to written constitutions and statutes. Whenever the meaning of a ruling, or some part of it, is not immediately apparent — maybe because the still-standing precedent is decades old and written in a manner that would now be anachronistic, or because the Justice writing the opinion was laconic — should we try to discern what the Justices intended or meant to say? Should the guide, instead, be what a reasonable person would understand by the text at the time of the promulgation of the relevant ruling? If the ruling still stands, but is decades old, shall we breathe life into it by reading it in accordance with contemporary values? Shall we make use of records of oral argument, or what Justices may have said extra-judicially, or will we restrict ourselves to the text of the ruling alone?

In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions — variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation — appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.

I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy — are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent.

In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism — not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation.

Very interesting & highly recommended.