Legal Theory Blog

Toh on Relativism & Jus Gentium

Kevin Toh (San Francisco State University) has posted Legal Relativism and Jus Gentium (APA Newsletter on Philosophy and Law, Forthcoming) on SSRN. Here is the abstract:

In "Partly Laws Common to All Mankind": Foreign Law in American Courts," Jeremy Waldron advocates what could be called "the doctrine of jus gentium," according to which, roughly, courts sitting in one country must give some weight in their legal deliberations to some principles that have been accepted or adopted by the legal systems of many other countries. Waldron's arguments for this doctrine raise questions and worries about exactly what the content of the doctrine is, and what justification could be offered for it. Several different versions of the doctrine come into the picture as Waldron argues for jus gentium, and while some versions are plausible, some others are not. Unfortunately, the most plausible of the versions seems to be excluded by Waldron's commitment to a Dworkinian conception of the nature of law. This paper ends up recommending that Waldron drop his commitment to that conception of the nature of law in favor of the plausible version of the doctrine of jus gentium.

This paper is a contribution to a symposium on Jeremy Waldron's work organized by the American Philosophical Association. A revised version will be published in a forthcoming issue of the APA Newsletter on Philosophy and Law, with Waldron's reply.

Highly recommended.

(Update: The title of the post has been corrected!)

Smith on the School-to-Prison Pipeline

Chauncee D. Smith (Fordham University School of Law) has posted Deconstructing the Pipeline: Evaluating School-to-Prison Pipeline Equal Protection Cases Through a Structural Racism Framework on SSRN. Here is the abstract:

This article posits that a wide range of U.S. education and criminal justice policies and practices -- such as zero tolerance regimes, academic sorting, and school district financing methods -- collectively result in students of color being disparately pushed out of school and into prison. Vast empirical and qualitative research indicates that this dynamic process, known as the "school-to-prison pipeline", wreaks havoc upon today's minority population. Both anti-pipeline legal scholarship and equal protection case law tend to examine school-to-prison pipeline problems through an isolated, or perhaps overly-restricted, lens which inhibits the development of a jurisprudence that allows the pipeline's systemic invidiousness to meaningfully redressed. This article attempts to advance normative viewpoints and legal doctrine by deconstructing the pipeline through a structural racism framework.

Berg on Schwartzman on Whether Religion Is Special

Thomas C. Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law) has posted Secular Purpose, Accommodations, and Why Religion is Special (Enough) (80 U. Chicago L. Rev. Dialogue 24 (2013)) on SSRN. Here is the abstract:

This article is a response to Micah Schwartzman's What If Religion Is Not Special? (U. Chi. L. Rev. (2012)) Schwartzman argues that existing approaches to the First Amendment's Religion Clauses are either (1) internally inconsistent because they because they treat religion as special for some purposes but not others or (2) unfair to both religion and nonreligion because they wrongly treat religion as different from deep or comprehensive nonreligious moral theories. He ultimately concludes that no existing theory is satisfactory and suggests expanding the clauses' reach to encompass comprehensive nonreligious moral views as well--which means that such views, like religious views, should be exempted from burdensome laws and should also be restricted in serving as the basis for legislation. Schwartzman argues that we are driven inexorably to this sort of general Rawlsian limitation on comprehensive theories as grounds for laws.

I argue that despite the virtues of his analysis, Schwartzman overstates two of his main conclusions. First, contrary to his charges of inconsistency, a theory may coherently treat religion as special for some purposes and not others. In particular, it is perfectly consistent to support religious accommodations while concluding that any constitutional restrictions on religion as a grounding for secular laws should be minimal, perhaps nonexistent. Second, the charge that it is unfairn to treat religion and nonreligion differently is also overstated. Religion has distinguishing features that justify treating it distinctively. We can extend such treatment to systems that share the same features but have not traditionally been called religious, but the extension should be limited—more limited than Professor Schwartzman proposes.

Andrews on General Jurisdiction Over Persons

Carol Andrews (University of Alabama - School of Law) has posted Another Look at General Personal Jurisdiction (Wake Forest Law Review, Vol. 47, 2012) on SSRN. Here is the abstract:

This article takes a fresh look at general jurisdiction. The doctrine has been the source of considerable confusion and relative silence by the Supreme Court. In the 1980s, academic debate flourished as to the proper parameters of general jurisdiction, including Professor Lea Brilmayer’s seminal article entitled, A General Look at General Jurisdiction. In 2011, the Court broke its silence and decided two cases on personal jurisdiction, Goodyear and McIntyre. This article uses the two cases as a springboard for a comprehensive examination of general jurisdiction.

The article proposes a policy critique derived from the two factors critical to general jurisdiction: the relatedness of the claim to the defendant’s forum contacts, and the extent of contacts needed for jurisdiction over unrelated claims. The Court in International Shoe pronounced these two factors to be fundamental to minimum contacts analysis, and an examination of how they impact the fairness of jurisdiction reveals the policies underlying general jurisdiction as a whole. The two factors, relatedness and extent of contacts, impact the fairness of jurisdiction in four ways: they help to ensure reciprocity of benefits and burdens, protect predictability, limit state sovereignty, and promote convenience. In turn, these fairness concerns, when read in light of the Court’s precedent, help define the two critical factors themselves.

This article concludes that the proper test for relatedness asks whether there is meaningful causal link between the plaintiff’s claim and the defendant’s forum contacts. The proper test for the extent of contacts asks whether the defendant is “at home” in the forum state. The article concludes its “look” at general jurisdiction by evaluating and applying these tests in a variety of factual settings.

Plaxton on the Bad Man & Criminal Law Theory

Michael Plaxton (University of Saskatchewan - College of Law) has posted The Challenge of the Bad Man (McGill Law Journal, Vol. 58, No. 2, 451) on SSRN. Here is the abstract:

H.L.A. Hart’s insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the “puzzled man”, and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes’ “bad man”. This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick’s recent discussion of fair labeling, and Meir Dan-Cohen’s classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.

David on Nahman on Legal Theology

Joseph E. David (University of Oxford - Faculty of Oriental Studies) has posted Dwelling within the Law: Nahmanides’ Legal Theology (Oxford Journal of Law and Religion, (2013), pp. 1–21) on SSRN. Here is the abstract:

The great medieval Jewish jurist and thinker R. Moses b. Nahman (1194-1270) developed an exceptional legal-theology unprecedented in traditional rabbinic thought. In jurisprudential terms, he reduces the Jewish traditional perception of the Halakhah (i.e. the Talmudic law) and introduces the view of the divine law as a territorial law. My article suggests reading anew his sayings about the God-law-land matrix against the background of his contemporary European Christendom. Our analysis raises new perspectives on his attentiveness to the conceptual vocabulary of the Crusades’ propaganda and the European legal reality.

Anwar, Bayer, & Hjalmarsson on Juror Age & Trial Outcomes

Shamena Anwar (Carnegie Mellon University - H. John Heinz III School of Public Policy and Management), Patrick J. Bayer (Duke University - Department of Economics; National Bureau of Economic Research (NBER)), & Randi Hjalmarsson (Queen Mary, University of London) have posted The Role of Age in Jury Selection and Trial Outcomes on SSRN. Here is the abstract:

This paper uses data from 700 felony trials in Sarasota and Lake Counties in Florida from 2000-2010 to examine the role of age in jury selection and trial outcomes. The results imply that prosecutors are more likely to use their peremptory challenges to exclude younger members of the jury pool, while defense attorneys exclude older potential jurors. To examine the causal impact of age on trial outcomes, the paper employs a research design that isolates the effect of the random variation in the age composition of the pool of eligible jurors called for jury duty. Consistent with the jury selection patterns, the empirical evidence implies that older jurors are significantly more likely to convict. Results are robust to the inclusion of broad set of controls including county, time, and judge fixed effects. These findings imply that many cases are decided differently for reasons that are completely independent of the true nature of the evidence in the case – i.e., that there is substantial randomness in the application of criminal justice.

Reynolds & Denning on Magarian on the Second Amendment

Glenn Harlan Reynolds and Brannon P. Denning (University of Tennessee College of Law and Samford University - Cumberland School of Law) have posted How to Stop Worrying and Learn to Love the Second Amendment: a Reply to Professor Magarian (Texas Law Review, Vol. 91, No. 89, 2013) on SSRN. Here is the abstract:

In response to Gregory Magarian's Speaking Truth to Firepower: How the First Amendment Destabilizes the Second, 91 TEXAS L. REV. 49, 53–72 (2012), we argue first that the strict dichotomy he posits between an individual right to keep and bear arms aimed at deterring (and furnishing the means for ultimately opposing) governmental tyranny and a right securing the means for private self-defense is a false one. Further, we argue that, to the extent there is any tension between the First and Second Amendments, Heller and McDonald eased that tension by locating individual self-defense at the core of the right. Such “modernization” of the right is preferable to Magarian’s (implicit) conclusion that the Second Amendment should have no (or little) judicially enforceable content at all.

Part II briefly summarizes Professor Magarian’s argument. In Part III, we then take issue with his conclusion that the only interpretation consistent with the Amendment’s text and history is that it was intended “to prevent a tyrannical government from disarming the people as a way to forestall popular insurrection” and that any other reading elides the Amendment’s “preamble.” In Part IV, we argue that Heller and McDonald’s placement of individual self-defense at the core of the right to keep and bear arms can be read as a product of judicial review’s “modernizing mission” — to borrow (and expand somewhat) a theory offered by David Strauss. The Court’s efforts, we argue, dissolve any ostensible tension between the rights guaranteed by the First and Second Amendments and should ease Professor Magarian’s anxieties about the suitability of an individual right to private arms ownership in a liberal democracy.

Schraub on the Constitution, Justice, & Theology

David H. Schraub has posted Our Divine Constitution (44 Loyola University Chicago Law Journal 1201 (2013)) on SSRN. Here is the abstract:

The presumption that God is omnibenevolent — inherently just, wise, kind, and merciful — is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoken of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself.

In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we think it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.

Westen on Transferred Intent

Peter K. Westen (University of Michigan Law School) has posted The Significance of Transferred Intent (Criminal Law and Philosophy, vol. 7, pp. 321-50 (2013)) on SSRN. Here is the abstract:

The doctrine of transferred intent (or “transferred malice” in England) typically provides that if A attempts to harm B but, because of bad aim, misses and accidentally causes the harm to befall C, A’s harmful intent vis-à-vis B is transferred to C, thus rendering A guilty of intentionally harming C. Commentators acknowledge the doctrine to be a legal fiction, but they differ regarding whether the fiction produces just results, some believing it does, others believing that A is guilty at most of attempting to harm B rather than intentionally harming C. Commentators who agree that the fiction produces just results nevertheless differ regarding whether to retain the fiction or whether to replace it by ruling that A’s intent to harm “a” person is the only intent that signifies for crimes of intentional harm, regardless of whom A eventually harms. Doug Husak sought to achieve reflective equilibrium between intuition and theory regarding bad-aim cases by proposing in 1996 that A be punished for attempting to harm B (rather than for harming C) but be sentenced as if he had harmed B. I once believed that Husak was correct. But I now have doubts, in part because Husak, along with others, cannot explain why the strength of people’s intuitions regarding A’s responsibility in bad-aim cases depends upon (1) C’s being a reasonably foreseeable victim, and (2) C’s being harmed by the same kind of threat that A originally unleashed against B. I argue that one cannot achieve reflective equilibrium in bad-aim cases without inquiring into why resulting harm matters in criminal law, and that when one does, one discovers that just as people’s intuitions regarding whether intentional harms are “proximate” depend upon how resulting harms occur, so, too, people’s intuitions regarding whether an actor is guilty of “intentional” harm depend upon how resulting harms come about.

Highly recommended.

McBride on Probability in Court

Ennis McBride (Institute for the Interdisciplinary Study of the Law) has posted The Practical Application of Probability in Court: Advancing Science or Timeless Art? on SSRN. Here is the abstract:

The application of probability to issues of proof and evidence is now a well-developed academic field, forming as it does a central part of the ‘science of evidence’. But how far has that science developed in the practical setting of the court room? Starting from its roots and reviewing its progress to the present day, it is argued that while the science which supports statistical evidence has become ever more sophisticated, almost nothing has changed in English courts so far as what happens during the process of a trial. In this respect, the formal court dress worn by English advocates, largely unchanged since 1685, is emblematic of the lack of progress of probability theory since its inception.

Legal Theory Lexicon: Conduct Rules and Decision Rules

Introduction

Substantive rules of law (such as the rules of torts, contract, and property) are usually assumed to be addressed to two audiences. As conduct rules, the substantive law is addressed to everyone (citizens, officials, and noncitizens). Thus, property law tells us who has dominion over which resources. If this land is mine, then the law communicates the message that I can use my land and exclude others from its use. These very same legal rules also serve as decision rules, they tell courts how to resolve disputes. We usually assume that the content of the conduct rules are the decision rules are identical, but this need not be the case.

Acoustic Separation

Professor Meir Dan-Cohen of U.C. Berkeley proposed a very famous thought experiment. He asked us to imagine acoustic separation between ordinary citizens, who would only "hear" the conduct rules, and officials (such as judges), to whom the decision rules would be addressed. You might imagine that courtrooms are isolated by a giant "cone of silence".

Dan-Cohen's thought experiment leads naturally to the following question: should decision rules and conduct rules have the same content or should they differ?  And if they differ, how could the law prevent acoustic leakage, e.g. prevent ordinary citizens from learning about the content of the decision rules?

Example?

Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content.

The Technology of Acoustice Separation

But how can we excuse ignorance of the law without altering the conduct rule?  One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law.

Normative Implications

Even if it is possible to create acoustic separation between conduct rules and decision rules, doing so may be problematic on normative grounds.  For utilitarians or welfarists, the only question is whether acoustic separation will produce good consequences, but for fairness-based (or deontological) approaches, the deception involved in acoustic separation seems problematic.  This intuition is reflected in a variety of legal doctrines (such as the "void for vagueness" doctrine in constitutional law) and in the notion of "publicity" that is usually included in formulations of the ideal of the rule of law.

Using the Distinction 

The distinction between conduct rules and decision rules may not arise frequently--because the conditions for acoustic separation may be rare and because the law usually aims at congruence between the two sorts of rules, but in almost every legal context the distinction could become relevant.  It is almost always worth asking, "Is there any discrepancy between the conduct rules and decision rules in this area of law?"  And if there is such a discrepancy, then further questions are in order: "Is this accidental or does it serve some function?" and "Is this instance of acoustic separation normatively justified?"

References

Meir Dan-Cohen Decision Rules and Conduct rules: On Acoustic Separation in Criminal Law, 97 Harvard Law Review 625 (1984) (available to subscribers on Jstor and anthologized in Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality(Cambridge University Press 2002).

Criminal Law Conversations (Paul H. Robinson, Stephen Garvey, & Kimberley Kessler Ferzan eds., Oxford University Press 2009).  This volume contains several essays that comment on Dan-Cohen's idea.

Paul H. Robinson, Rules of Conduct and Principles of Adjudication, 57 U. Chi. L. Rev. 729 (1990).

(Last modified on May 19, 2013.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Health Care Case: The Supreme Court's Decision and Its Implications , edited by Nathaniel Persily, Gillian E. Metzger, & Trevor W. Morrison. Here is a description:

The Supreme Court's decision in the Health Care Case, NFIB v. Sebelius, gripped the nation's attention during the spring of 2012. No one could have predicted the strange coalition of justices and arguments that would eventually lead the Court to uphold the Affordable Care Act's principal provisions. The constitutional case against the ACA was originally written off as frivolous, but after oral argument at the Court, many predicted that the unthinkable had now become likely. When the Supreme Court delivered its complicated and fractured decision, it offered new interpretations to four different clauses in the Constitution. This volume gathers together reactions to the decision from an ideologically diverse selection of the nation's leading scholars of constitutional, administrative, and health law. They offer novel insights into the meaning of the health care decision for President Obama, the Roberts Court, and the debate over constitutional interpretation.

And from the blurbs:

"Truly one-stop shopping for anyone interested in understanding the meaning and significance of the historic health care cases of 2012. With contributions by some of the most insightful and influential thinkers in the field, this volume clarifies and expands upon what the ACA litigation did and did not signify, what it says about the legacy of the Roberts Court, and where we go from here. An invaluable read."-Dahlia Lithwick, senior editor, Slate

"This is a wonderful collection of essays about "the case of the century" by the nation's leading scholars. Each page yields new and valuable insight."-Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law

"This remarkable book shows beyond doubt that, contrary to Justice Robert Jackson's famous quip, the Supreme Court is neither infallible nor final. The health care case is over, but the argument over what it will mean has just begun. Anyone who seeks an appreciation of the stakes of that debate will find this diverse set of provocative essays indispensable reading."-Michael C. Dorf, Robert S. Stevens Professor, Cornell University Law School

Download of the Week

The Download of the Week is The Pigou-Dalton Principle and the Structure of Distributive Justice by Matthew D. Adler. Here is the abstract:

The Pigou-Dalton (PD) principle recommends a non-leaky, non-rank-switching transfer of goods from someone with more goods to someone with less. This Article defends the PD principle as an aspect of distributive justice — enabling the comparison of two distributions, neither completely equal, as more or less just. It shows how the PD principle flows from a particular view, adumbrated by Thomas Nagel, about the grounding of distributive justice in individuals’ “claims.” And it criticizes two competing frameworks for thinking about justice that less clearly support the principle: the veil-of-ignorance framework, and Larry Temkin’s proposal that fairer distributions are those concerning which individuals have fewer “complaints.” 

The Article also clarifies the relation between the PD principle and prioritarianism. Prioritarians will surely endorse the PD principle (with the “good” individual well-being), but they are also committed to a distinct axiom of separability: the moral value of someone’s well-being change does not depend upon her position relative to others. The PD principle neither implies separability, nor is implied by it. Although prioritarianism is very plausible, the case for the PD principle is yet more compelling than for the combination of that principle with separability. In discussing prioritarianism, we should differentiate between these two, logically independent aspects of the view.

Highly recommended!

Schmitz on Gender in Consumer Contracts

Amy Schmitz (University of Colorado Law School) has posted Sex Matters: Considering Gender in Consumer Contracts (Cardozo Journal of Law & Gender, Vol. 19, pp. 437-509, 2013) on SSRN. Here is the abstract:

We hear about the so-called “War on Women” and persisting salary gaps between men and women in the popular media, but contracts scholars and policymakers rarely discuss gender. Instead, dominant voices in the contracts field often reflect classical and economics-driven theories built on assumptions of gender neutral and economically rational actors. Furthermore, many mistakenly assume that market competition and antidiscrimination legislation address any improper biases in contracting. This Article therefore aims to shed light on gender’s importance by distilling data from my own e-survey of Colorado consumers along with others’ research regarding gender differences in contract outcomes, interests and behaviors. In light of this research, the Article calls for open discussion of gender in contract and consumer law. It also suggests ideas for considering research findings and the importance of context in designing financial literacy and contract education programs that acknowledge gender while honoring individuality and avoiding stereotype reinforcement.

Eleftheriadis on Democracy & the Eurozone

Pavlos Eleftheriadis (University of Oxford - Faculty of Law) has posted Democracy in the Eurozone (WG Ringe and P Huber (eds), Legal Challenges Arising out of the Global Financial Crisis: Bail-outs, the Euro, and Regulation (Oxford: Hart Publishing) (2013, Forthcoming)) on SSRN. Here is the abstract:

In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a ‘genuine monetary union’ promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union - and the Eurozone within it - can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.

Mak on Moderately Pluralist Contract Theory

Chantal Mak (University of Amsterdam - Centre for the Study of European Contract Law (CSECL)) has posted The One and the Many: Translating Insights from Constitutional Pluralism to European Contract Law Theory (European Review of Private Law, Forthcoming) on SSRN. Here is the abstract:

While freedom of contract has generally been recognised as a leading principle of European contract law, national contract laws as well as EU measures show remarkable differences with respect to the limits they impose on contractual freedom in light of the public interest or common good. Whereas some private legal scholars aspire to relate all rules of private law to a single value (monist theories), others consider it impossible to find such a common denominator (radical pluralist theories). In this paper, it is submitted that a moderate pluralist theory offers the most convincing narrative to explain current developments in this field, since it defines a meta-level on which diverging ideas of contract law can be reconciled by the definition of coordinating principles. These meta-principles indicate which conception of the common good prevails in a specific case and on which level (European or national) final decision-making authority is allocated in that case. Through an analysis of examples from case law (the story of the CJEU’s Viking and Laval judgments, and the Court’s recent decision in the Aziz case) it is argued that a moderate pluralist theory also provides the most convincing normative model for the further development of European contract law.

Christie on Natural Law, Natural Rights, & Judicial Decision Making

George C. Christie (Duke University - School of Law) has posted Judicial Decision Making in a World of Natural Law and Natural Rights (Villanova Law Review, Vol. 57, No. 5, 2012) on SSRN. Here is the abstract:

This article was my contribution to a symposium celebrating the achievements of John Finnis held at the Villanova University School of Law. Finnis’ greatest work is his Natural Law and Natural Rights. I agree with Finnis’ rejection of an approach to natural law which focuses on the notion of natural rights. Finnis’ approach instead focuses on a natural law that is based on the idea that there are certain basic human goods such as the search for knowledge, the maintenance of life, the sharing of fellowship with other human beings, the capacity to enjoy aesthetic experiences, and the exercise of practical reason, to which he adds the almost universal human striving for religious meaning. I accept that human law reflects the broadly accepted human goods and goals that underline our social morality. I explain, however, that, no matter how much we might wish it were otherwise, there will of necessity be some separation between law and morality. In order that law might be predictable and capable of being applied in a coherent and objective manner, a legal system will inevitably have certain arbitrary features about it that can never be completely eliminated and which a rational person would not wish to completely eliminate. That is why a legal system can at most only succeed in achieving a high degree of formal justice. It can never deliver perfect justice.

Saunders on Federalism in Australia

Cheryl Saunders (Melbourne Law School) has posted Can Federalism Have Jurisprudential Weight (in T. Courchene, J. Allan, C. Leuprecht and N. Verrelli (eds), The Federal Idea: Essays in Honour of Ronald L. Watts, McGill-Queen's University Press (2011)) on SSRN. Here is the abstract:

This chapter addresses a paradox in the design and operation of federations. On the one hand, almost all federations empower the judiciary to resolve disputes over power between the spheres of government through the interpretation and application of a written Constitution. On the other hand, there is an apparent tendency in many federations for judicial review to favour central power over time. The chapter explores the extent to which the explanation for this tendency lies in the paucity of doctrines developed by courts in federations for the purpose of the interpretation of the constitutional division of powers, using the Australian federation as a case study. In relation to Australia it makes the well-known point that the federal context of the Constitution is specifically disapproved as a jurisprudential consideration in interpreting and applying the division of powers and explains how this and related doctrines have contributed to the effective expansion of Commonwealth power. The chapter argues that this approach to questions about the federal division of power is now inconsistent with other interpretative approaches, both to statute and to other parts of the Constitution. Quite apart from its impact on federalism, the interpretative approach to the division of powers in Australia also has an impact on the coherence of Commonwealth legislation, with implications for the rule of law. The chapter concludes with some suggestions about ways in which even minor shifts in judicial approach might produce a more credible jurisprudence. While much of the analysis inevitably focuses on Australian conditions, the chapter suggests that the effectiveness of judicial review to resolve disputes over power is an issue that merits attention in the design of new federations. To develop a more general understanding of the problems and possibilities of the jurisprudence of federalism, it calls for other country studies of this kind.

Moliterno on Lawyer Regulation

James E. Moliterno (Washington and Lee University - School of Law) has posted The Trouble with Lawyer Regulation (Emory Law Journal, Vol. 62, p. 101, 2013) on SSRN. Here is the abstract:

The American legal profession has been a backward-looking, change-resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers’ efforts to change their own practices and entrepreneurs’ efforts to enter the legal marketplace to serve the needs of middle- and lower-income clients. When change does come, the legal profession is a late-arriver, usually doing no better than catching up to changes around it that have already become well ensconced. This failure robs the society of what could be a positive role of the legal profession in time of change, and it deprives the profession itself of being as robust and successful as it could be.

Helie on Multiculturalism, Liberalism, Veils, & Harm to Women

Anissa Helie (CUNY, John Jay College of Criminal Justice) & Marie Ashe (Suffolk University Law School) have posted Multiculturalist Liberalism and Harms to Women: Looking Through the Issue of 'The Veil' (19 U.C. Davis Journal of International Law & Policy 1 (2012), pp. 1-65) on SSRN. Here is the abstract:

In response to recent mandates, prohibitions, or “choices” relating to veil-wearing by Muslim girls and women, this essay raises and responds to the question: “How should civil government treat culture- or religion-based claims of rights that clash with the norm of women’s equality?” – that question being a broadened reformulation of Susan Okin’s 1999 inquiry, “Is Multiculturalism Bad for Women?” The essay identifies social and political developments, as well as legal and theoretical developments – relating to women, religions, and governments – that have occurred in the 21st century and that demand that reformulation. Reviewing theories on the veiling controversies, and characterizing some as reflecting only partial visions, the essay embraces and argues for a re-shaped liberalism that is committedly and simultaneously feminist and anti-racist and secular.

Bowers on Effective Assistance of Plea-Bargaining Counsel

Josh Bowers (University of Virginia School of Law) has posted Lafler, Frye, and the Subtle Art of Winning by Losing (Federal Sentencing Reporter, Vol. 25, No. 2, pp. 126-130, 2012) on SSRN. Here is the abstract:

In its recent decisions, Lafler v. Cooper and Missouri v. Frye, the Court recognized defendants’ rights to effective assistance of plea-bargaining counsel. Counter-intuitively, however, it is the government that may come to benefit most from the Court’s rulings against it, not only because a well-regulated plea-bargaining market facilitates frequent and expeditious plea deals, but also because prosecutors exercise terrific control over that market. Indeed, by making plea offers that are too attractive to reasonably refuse, prosecutors may constitutionally conscript defense counsel to persuade defendants to plead guilty. Moreover, prosecutors shape the practice norms against which the competency of bargaining counsel is now measured.

Frau on Unmanned Military Systems & Human Rights

Robert Frau (European University Viadrina Frankfurt (Oder) - Law Faculty) has posted Unmanned Military Systems and Extraterritorial Application of Human Rights Law (Groningen Journal of International Law, Vol. 1, No. 1, 2013) on SSRN. Here is the abstract:

The article addresses human rights issues that arise from the use of unmanned military systems in armed conflict. It is assessed when and to what extent human rights law applies in times of armed conflict. The major focus is the question of whether or not human rights law applies extraterritorially. It is argued that it applies to a greater extent to the use of unmanned military systems than might be expected under the jurisprudence of the European Court of Human Rights. Hence, a new approach to the concept of ‘jurisdiction’ is submitted. In addition, specific scenarios, in which unmanned military systems are frequently deployed, are measured against the legal framework.

Patrick on the Persistence of the Crime of Blasphemy

Jeremy Patrick (University of Southern Queensland School of Law) has posted The Curious Persistence of Blasphemy: Canada and Beyond on SSRN. Here is the abstract:

The purpose of this dissertation is to examine the history and future of the crime of blasphemy. In the introduction, several key questions are examined: (1) What is blasphemy? (2) Why do people blaspheme? and (3) What are the real or perceived harms of blasphemy? Subsequently, Part I examines the history of blasphemy and blasphemy-like laws in six jurisdictions around the globe: England, Ireland, Australia, Pakistan, the United Nations, and the United States. The jurisdictions chosen illuminate the fact that blasphemy is a complex concept which can be regulated in a wide variety of ways. These six provide an excellent picture of the varied and diverse ways the concept of blasphemy has operated and an understanding as to why it remains relevant today. Part II of this dissertation turns away from a global, comparative examination of blasphemy and instead provides a comprehensive, in-depth study of a single jurisdiction: Canada. This sustained history of blasphemy in Canada, the first ever published, allows for a valuable snapshot of the evolution of the crime into its modern form. Part III synthesizes the research and analysis in Parts I and II to answer the fundamental questions: what is the future of the crime of blasphemy in Canada and beyond?

Tushnet on Copyright & Performance

Rebecca Tushnet (Georgetown University Law Center) has posted Performance Anxiety: Copyright Embodied and Disembodied (Journal of the Copyright Society of the U.S.A., Forthcoming) on SSRN. Here is the abstract:

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance — both as protected work and as right — is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective is how to identify the creative elements that make a work of performance original and protectable, as distinguished from elements that make it a work (a fixed artifact). A major variant of this question involves authorship: who is sufficiently responsible for a work of performance to be deemed its author, and thus its default owner? In a world where works require dozens and even hundreds of people to complete them, this question will often be difficult to answer while both respecting creativity and recognizing economic imperatives. Another set of questions involves whether there are ways to recognize performers’ creative contributions without contributing to copyright’s bloat, and how to assess claims of infringement in a performance context when the alleged copying isn’t exact. This article addresses these puzzles of performance, arguing that manageability rather than creativity is generally the basis for the rights allocations and distinctions copyright law makes. The recent controversy over the film Innocence of Muslims, along with other instances in which subjects of audiovisual works claimed copyright in those works, demonstrate the limited role played by creativity in copyright law.

Highly recommended.

Esbeck on Establishment Clause Standing

Carl H. Esbeck (University of Missouri School of Law) has posted Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause (7 Charleston L. Rev. No. 1, 2013, Forthcoming) on SSRN. Here is the abstract:

For nearly half a century the Supreme Court has relaxed traditional standards of justiciability and permitted taxpayer standing where a claimant has invoked the Establishment Clause in a lawsuit to prohibit government funding of religion. However, the Court has recently cutback such that taxpayer standing is permitted only where taxes are extracted from the claimant and money is appropriated by a legislature to fund a statutory program that directs the use of public aid for religion.

What has gone largely unremarked upon is the Supreme Court’s parallel line of reduced-rigor standing cases where an action is brought because of a claimant’s personal exposure to unwanted religious expression by the government. Typical of such cases are a challenge to prayer at the beginning of a local city council meeting and memorials in a public park depicting the Ten Commandments. In these unwanted-exposure cases the underlying claim on the merits is that the government has taken sides on a religious question. The apparent injury is largely generalized, however, resembling that suffered by nearly everyone who wants to live under a government that does not exceed its constitutional restraints. Nevertheless, the Court has permitted such reduced-rigor standing so long as the claimant is personally exposed to her government’s message and it is one with which she disagrees. The extent to which the observer is “offended” is irrelevant, as is the frequency of the exposure.

If unwanted-exposure standing comes under the same reexamination by the Supreme Court as has taxpayer standing, any resulting cutback would mean that no-establishment principles will go unexamined and thus under-enforced. That prospect ought to be received with some concern because principles of church-state separation protect religion from being exploited. The political branches of government will sometimes use religion in a manner that mixes God and Country, and that cannot but compromise religion and debase its symbols.

Dearinger on Arizona Christian School Tuition Organization v. Winn

Bryan Dearinger (United States Department of Justice) has posted The Future of Taxpayer Standing in Establishment Clause Tax Credit Cases (Oregon Law Review, Forthcoming) on SSRN. Here is the abstract:

It is unusual for scholars and litigators who work in the Establishment Clause area to agree with what the Supreme Court has done to a doctrinal topic, particularly when that topic is standing. But that is what I do in this Article. While not the first piece to substantively address the Supreme Court’s recent decision in Arizona Christian School Tuition Organization v. Winn, it is the first to support that decision and its interpretation of the much-maligned Flast v. Cohen. Winn distinguished Flast and thus rejected taxpayer standing to challenge an Arizona law permitting taxpayers to claim a tax credit for donations made to school tuition organizations that provide scholarships to children attending private religious and non-religious schools. The decision has become fodder for those displeased with the narrow scope of the taxpayer standing exception, those numbering Flast’s days or already mourning its death, and those who believe the Roberts’ Court has invoked standing to avoid deciding Religion Clause cases because a new, more permissive jurisprudence in this area is afoot.

Rejecting each of these assessments, this Article offers a more realistic appraisal of the taxpayer standing doctrine and what Winn portends for Establishment Clause tax credit challenges in the future. It advocates for Flast’s preservation, advancing a normative, conscience-based theory of taxpayer standing that recognizes government-compelled taxing and spending scenarios wherein a taxpayer’s pocketbook harm implicates the conscience injury protected by the Establishment Clause. When the Flast exception is viewed in this light, Winn presents an example of doctrinal stability, not unrest.

Any article endorsing Winn would be incomplete without confronting Justice Kagan’s superbly written dissent, which predicts the complete demise of the taxpayer standing exception. I argue that Justice Kagan exaggerates the reach of Winn by ignoring the nub of the injury in Flast, conflating the legal incidence of tax credits and government expenditures in this area, overstating the potential for underenforcement of the Establishment Clause, and incorrectly assuming that the Flast exception applies to state taxpayers in federal court. More legitimate, however, is Justice Kagan’s larger fear that Winn encourages government(s) to launder direct financial aid to religion by using tax credits in lieu of direct appropriations. I acknowledge this failure and offer three potential solutions in the tax credit arena: abandoning the rule against taxpayer standing, creating taxpayer standing by statute, or allowing such actions to be brought in a non-Article III court. Ultimately, I conclude that the Judiciary remains the best protector of the purpose and consistency of the taxpayer standing doctrine, even if it is not a perfect guardian.

Wesson & du Plessis on the Hart-Dworkin Debate & South African Legal Theory

Murray Wesson and Max du Plessis (University of Western Sydney - School of Law and University of KwaZulu-Natal - Faculty of Law (Westville Campus)) has posted Hart, Dworkin and the Nature of (South African) Legal Theory ((2006) 123 South African Law Journal 700) on SSRN. Here is the abstract:

The publication of HLA Hart's Postscript to The Concept of Law has reinvigorated a debate that dominated much of twentieth century jurisprudence. This article provides an overview and limited appraisal of Hart's Postscript, as well as a consideration of the implications of this debate for South African law. The first part of the article provides a brief account of Hart's positivism and Dworkin's early criticisms. Here we conclude that Hart gains the upper hand through his embrace of 'soft' positivism. Thereafter the article considers Dworkin's later criticisms of Hart's project, as expounded in Law's Empire. Here we suggest that Hart's central suggestion in the Postscript, that his project and Dworkin's can be reconciled, is unconvincing. More specifically, Hart does not adequately recognise the threat that Dworkin's 'semantic sting' argument poses to the 'rule of recognition'. The final part of the article discusses the continuing relevance of Dworkin's notion of constructive interpretation to South African law.

Adler on Measuring Equity

Matthew D. Adler (Duke University - School of Law) has posted Equity by the Numbers: Measuring Poverty, Inequality, and Injustice on SSRN. Here is the abstract:

Can we measure inequity? Can we arrive at a number or numbers capturing the extent to which a given society is equitable or inequitable? Sometimes such questions are answered with a “no”: equity is a qualitative, non-numerical consideration.

This Article offers a different perspective. The difficulty with equity measurement is not the impossibility of quantification, but the overabundance of possible metrics. There currently exist at least four families of equity-measurement frameworks, used by scholars and, to some extent, governments: inequality metrics (such as the Gini coefficient), poverty metrics, social-gradient metrics (such as the concentration index), and equity-regarding social welfare functions. Inequality metrics look at the population-wide distribution of income or some other valuable good. Poverty metrics focus on the extent to which individuals fall below an income threshold, or are deprived in other ways. Social-gradient metrics quantify the correlation between goods (in particular, good health) and social status. Equity-regarding social welfare functions seek to translate each individual’s bundle of attributes into a “utility” number, measuring her well-being; and then rank situations so as to give extra weight to improvements in the utility of those at a low utility level.

So which of these is the most attractive equity metric? How shall we choose among them? This Article tries to make progress on these questions. I show how all four families share a deeper unity: all satisfy the “Pigou-Dalton” principle in some form, favoring a non-leaky transfer of some valuable “currency” from those with more to those with less. The metrics differ in the specific version of the Pigou-Dalton principle that they embody: how they identify the valuable “currency,” and whether they restrict the scope of that principle. Thus, in choosing among equity metrics, we should be guided by the lodestar question: what are the grounds for specifying the Pigou-Dalton principle in this way rather than that? This question, in turn, helps us see how the diversity of current equity metrics flows from intellectual contestation about the nature and measurement of well-being, and about the conditions under which individuals are responsible for being badly off.

Highly recommended.

Depoorter on Losing & Legal Reform

Ben Depoorter (University of California Hastings College of Law) has posted The Upside of Losing (Columbia Law Review, Vol. 113, p. 817, 2013) on SSRN. Here is the abstract:

Conventional understanding in legal reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likely to establish or strengthen unfavorable precedent. Contrary to this accepted wisdom, this Essay analyzes the strategic decisions of litigation entrepreneurs who pursue litigation with the awareness that losing the case can provide substantial benefits. Unfavorable litigation outcomes can be uniquely salient and powerful in highlighting the misfortunes of individuals under prevailing law, while presenting a broader narrative about the current failure of the legal status quo. The resulting public backlash may slow down legislative trends and can even prompt legislative initiatives that reverse the unfavorable judicial decisions or induce broader reform.

This analysis revises some conventional wisdom about litigation. First, while it is traditionally understood that legal reform activists must persuade courts to recognize unattended rights or to confirm new rights and activist positions, the analysis here suggests that social changes can be obtained in litigation without requiring the involvement of courts as policymakers. Moreover, passive courts and judicial deference in fact strengthen the mobilizing effect of litigation by clearly shifting the burden to legislators and their constituents. Second, the dynamics of successful defeat in litigation shed new light on the costs and benefits involved with litigation. In the proposed framework, a plaintiff’s decision to litigate rests not simply on the probability of success but also on a tradeoff between the potential costs of a negative precedent and the political benefits obtained in defeat. Third, the mobilizing potential of adverse court decisions presents a fascinating conflict between the immediate interests of the actual plaintiff and of the litigation entrepreneur or intermediary that supports the litigation with an eye on the underlying long-term goals of a social cause. Finally, the potential benefits of adverse outcomes refute some of the criticisms about the limitations and downsides of pursuing social change through courts.

Wuerth on Kiobel v. Royal Dutch Petroleum

Ingrid B. Wuerth (Vanderbilt University - Law School) has posted The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum Co. (American Journal of International Law, Vol. 107, 2013) on SSRN. Here is the abstract:

Alien Tort Statute litigation has generated a growing number of questions about the the scope of statute, but in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court finally answered one of them: the presumption against extraterritoriality applies to the statute. Going forward, courts may apply a robust version of the presumption, effectively ending ATS litigation as we currently know it. Or, they may not. The Court’s citations to Morrison v. Nat’l Austl. Bank Ltd. suggest the former; some language in the various opinions suggests the latter. This article explores these uncertainties and also discusses additional factors that may be significant for the courts’ application of the presumption in future cases: a potential analogy between the ATS and the Sherman Act, the purpose of the ATS, and the appropriate deference to accord the executive branch in ATS litigation. Finally, it considers the significance of Kiobel to the development and enforcement of international law and argues that the uncertain course charted by the Court in ATS litigation is in many respects unexceptional.

Highly recommended.

Bernstein & Parisi on Customary Law

Lisa Bernstein and Francesco Parisi (University of Chicago Law School and University of Minnesota - Law School) has posted Customary Law: An Introduction on SSRN. Here is the abstract:

We wrote this brief essay as an introduction to the volume “Customary Law” (Elgar, 2013). We briefly review several seminal works on customary law. Although scholars in law, economics, and history have provided a wealth of research on the subject, the issues arising from the intersection of customs and the law are far from settled. The discussion is divided into three parts. Part I examines a variety of perspectives on the history of customary law. Part II considers the role and limits of customary systems in a variety of commercial settings. Along the way it focuses on defining the proper relationship between law and custom from a law and economic perspective. Part III explores the role of custom in international law, from a broad set of analytical viewpoints.

Wasserman on New York Times v. Sullivan & Jurisdiction

Howard M. Wasserman (Florida International University (FIU) - College of Law) has posted A Jurisdictional Perspective on New York Times v. Sullivan (Northwestern University Law Review, Vol. 107, No. 2, 2013) on SSRN. Here is the abstract:

New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.

Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.

van der Burg on "Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller" and "Legitimacy and Legality in International Law: An Interactional Account"

Wibren van der Burg (Erasmus University Rotterdam (EUR) - Erasmus School of Law) has posted The Work of Lon Fuller: A Promising Direction for Jurisprudence in the 21st Century on SSRN. Here is the abstract:

This is a review article of Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller, and Jutta Brunnée & Stephen John Toope, Legitimacy and Legality in International Law: An Interactional Account. It puts both books in perspective, in the context of a modest Fuller revival since 1994.

Rundle successfully tries to reclaim Fuller from the distorted picture that arose in the wake of the Hart-Fuller debate. According to Rundle, Fuller’s most important and still highly relevant message is that we should take the form of law seriously. There is a connection between the form of law and how law approaches human agency. Rundle relies extensively on unpublished materials from the Fuller archives. This was a fortunate choice, because in those materials Fuller was often franker and clearer than in the published materials.

An interesting application of Fuller’s work is found in the field of international law, which has always been the Achilles heel of legal positivism. Jutta Brunnée and Stephen Toope have elaborated and adapted the Fullerian framework so that it provides an adequate theory of international law. In my view, they have provided a highly convincing account of the emergence of international law.

Both books share a certain bias. First, the implicit focus on legislation leads to the neglect of other forms of law, such as contract. Second, Rundle’s focus on the conversations with Hart and others, and Brunnée and Toope’s focus on The Morality of Law, results in the neglect of those publications in which Fuller tried to transcend philosophical debates and present the field of jurisprudence in a relatively impartial way. For example, in Anatomy of the Law, Fuller tries seriously to do justice to the core of truth in both legal positivism and natural law thinking, to made law and to implicit law. I argue that once we accept that law is a gradual and pluralist concept, Fuller’s work may be seen to provide a rich source of inspiration. Perhaps his work is even more relevant and productive for the legal research agenda of the 21st century than it was in the last century.

Laufer-Ukeles on Regulating Commercial Surrogacy

Pamela Laufer-Ukeles (University of Dayton - School of Law) has posted Mothering for Money: Regulating Commercial Intimacy (Indiana Law Journal, Vol. 88, No. 4, 2013) on SSRN. Here is the abstract:

The payment for gestation resulting in a child, involving months of physical involvement for the surrogate and the transferring of a being from the womb of one woman to the arms of another is the quintessential exchange in commercial intimacy. It is commercial because it involves payment for services, yet intimate because it involves physical and emotional attachments and interdependencies. In this article, I consider how to capture the many benefits that this commercial exchange that surrogacy engenders, including the documented satisfaction of surrogates and intended parents with the process and low rates of litigation, while simultaneously taking into account the high levels of intimacy and personal, emotional attachments involved, which are also well-documented in empirical sociological accounts. I lean on notions of mixed commoficiation and the descriptive work of Viviana Zelizer, among others, to argue for regulation that protects the intimacy involved in surrogacy.

In the context of commercial surrogacy, among other possible regulatory provisions, I argue that the human dignity and vulnerability of the surrogate require contemplation of the possibility of legally enforceable post-birth contact between the surrogate and the intended family. According to sociological studies, surrogates do seem to detach from the baby they carry, not considering themselves to be mothers in the formal, traditional sense, but instead transfer intimate ties to the intended family and feel strongly that their bodily contribution to the process not be discarded upon birth but valued for the essentially human engagement it involves.

This article also considers the relevance for this discussion of international surrogacy, a growing reality which should not be ignored in any modern conversation about surrogacy. By exploring the nature of international surrogacy through the most common destination of India, I describe how international surrogacy exacerbates many of the potential commodification and exploitation concerns involved in surrogacy and, therefore, should be discouraged. While the intimacy in domestic surrogacy may be captured through relationships and regulations supporting such relations, intimacy is intentionally and practically avoided in international surrogacy in problematic ways. I therefore consider what states should be doing to encourage domestic systems of surrogacy and discourage international surrogacy short of outlawing such procedures or refusing to accept babies born of international surrogacy into their borders which will only hurt the children involved.

Kochan on Aretaic Legislation & Public Choice

Donald J. Kochan (Chapman University School of Law) has posted The Mask of Virtue: Theories of Aretaic Legislation in a Public Choice Perspective (St. Louis University Law Journal, Forthcoming) on SSRN. Here is the abstract:

This Article is a first-of-its-kind application of public choice theory to recently developing theories of virtue jurisprudence. Particularly, this Article focuses on not-yet-developed theories of aretaic (or virtue-centered) legislation. This Article speculates what the contours of such theories might be and analyzes the production of such legislation through a public choice lens. Any virtue jurisprudence theory as applied to legislation would likely demand that the proper ends of legislation be deemed as “the promotion of human flourishing” and the same would constitute the test by which we would determine the legitimacy of any legislation.

As noble as virtuous behavior, virtuous laws, virtuous judging, or virtuous legislation may be, there is no reason to believe that any such theories if employed and adopted as decision rules would be any less susceptible to the debilitating realities of public choice and interest group behavior than other principles or metrics intended to guide lawmaking. We cannot expect interest groups to be virtuous in the ends sought nor lawmaking to be virtuous in the commodities offered and produced. Legislators remain subject to interest group bargaining and will manipulate a virtue-based rule for private gains through masking techniques rather than advance the concept of virtue itself. While some legislation will be drafted to seem virtuous to the public on its outside, its interior will be filled with rent seeking bounties.

Deeply interesting & highly recommended.

Matczak on Legal Rules as Complex Text Acts

Marcin Matczak (Warsaw University - Faculty of Law and Public Administration) has posted Why Legal Rules Are Not Speech Acts and What Follows from That on SSRN. Here is the abstract:

The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed.

My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses).

To redress these flaws, I propose treating legal rules as complex text acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.

Highly recommended.

Arlen & Tontrup on the Endowment Affect

Jennifer Arlen and Stephan W. Tontrup (New York University School of Law and Max Planck Institute for Research on Collective Goods) have posted A Process Account of the Endowment Effect: Voluntary Debiasing Through Agents and Markets on SSRN. Here is the abstract:

We contest the loss aversion theory of the endowment effect, in which the effect depends on the status of endowment alone. Instead, we propose that the nature of the trading process determines whether people resist or accept an exchange by affecting the responsibility people feel for their choice. The more they feel responsible for the decision, the more they expect experiencing regret over a negative outcome. Aversion to regret causes people to resist a rational trade and exhibit the endowment effect. In a series of experiments, we analyze two institutions that alter the trading process and reduce perceived responsibility --agency and markets. We find that both mute the endowment effect; moreover, participants intentionally use them to self-debias. Since many institutions shift responsibility, we conclude that the endowment effect is not present in many domains previously thought to implicate it. Institutional design often need not rely on paternalistic intervention.

Lyke on Diversity as a Commons

Sheldon Bernard Lyke (Northwestern University - School of Law) has posted Diversity as Commons (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:

Educational diversity arose as a shared valuable resource benefitting both universities and students in two landmark affirmative action cases — Regents of the University of California v. Bakke and Grutter v. Bollinger. This Article argues that diversity empirically resembles a commons (i.e., a shared resource). Extending this analysis exposes plaintiffs who file anti-affirmative action lawsuits — individuals like Abigail Fisher in Fisher v. University of Texas — as agents of enclosure who are trying to enclose the educational diversity commons, destroy its management structure, and privatize it for their own benefit (i.e. to gain admission into elite universities). Examining diversity and affirmative action through a common property lens reveals that the defense of race-conscious admissions policies faces a collective action problem. The interests of universities and their minority students largely overlap in their desire to protect diversity. They diverge, however, when universities refuse to employ additional equality rationales that could strengthen the defense of diversity and race-conscious admissions. This refusal facilitates anti-affirmative action efforts.