Legal Theory Blog

Barnett, Fried, and Tribe Debate the Constitutionality of the Individual Mandate

The Petrie-Flom Center recently hosted a debate with Randy Barnett, Charles Fried and Larry Tribe on whether the Obama Health Care Reform is Constitutional. Here is a link to the video: http://www.law.harvard.edu/media/2011/03/24_pf.mov.

Surden on Variable Legal Determinacy

Harry Surden (University of Colorado Law School) has posted The Variable Determinacy Thesis (Columbia Science and Technology Law Review, Vol. 12, No. 1, 2010-11) on SSRN. Here is the abstract:

This Article proposes a novel technique for characterizing the relative determinacy of legal decision-making. I begin with the observation that the determinacy of legal outcomes varies from context to context within the law. To augment this intuition, I develop a theoretical model of determinate legal decision-making. This model aims to capture the essential features that are typically associated with the concept of legal determinacy. I then argue that we can use such an idealized model as a standard for expressing the relative determinacy or indeterminacy of decision-making in actual, observed legal contexts. From a legal theory standpoint, this approach – separating determinacy and indeterminacy into their constituent conceptual elements – helps us to more rigorously define these theoretical ideas. Ultimately, from a practical standpoint, I assert that this framework assists in understanding why legal outcomes in certain contexts are determinate enough to be amenable to resolution by computers.

Very interesting.

Fenster on Wikileaks & Transparency

Mark Fenster (University of Florida - Fredric G. Levin College of Law) has posted Disclosure’s Effects: Wikileaks and Transparency on SSRN. Here is the abstract:

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm or stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’s ability to receive and distribute leaked information cheaply, quickly, and seemingly unstoppably enables it to bypass the legal framework that would otherwise allow courts and officials to consider and balance disclosures’ effects. For this reason, WikiLeaks threatens to make transparency’s balance irrelevant. Second, its recent massive disclosures of U.S. military and diplomatic documents allow us to reconsider and test the assumption that disclosure produces effects that can serve as the basis for judicial and administrative prediction, calculation, and balancing. For this reason, WikiLeaks threatens transparency’s balance by disproving its assumption that disclosure necessarily has predictable, identifiable consequences that can be estimated ex ante or even ex post.

This article studies WikiLeaks in order to question and evaluate prevailing laws and theories of transparency that build on the assumption that disclosure’s effects are predictable, calculable, and capable of serving as the basis for adjudicating difficult cases. Tracing WikiLeaks’s development, operations, theories, and effects, it demonstrates the incoherence and conceptual poverty of an effects model for evaluating and understanding transparency.

Highly recommended.

Mason & Knoll on Tax Discrimination

Ruth Mason (University of Connecticut School of Law) & Michael S. Knoll (University of Pennsylvania Law School; University of Pennsylvania - Real Estate Department) have posted What is Tax Discrimination? (Yale Law Journal, Vol. 121) on SSRN. Here is the abstract:

Prohibitions of tax discrimination have long appeared in constitutions, tax treaties, trade treaties and other sources, but despite their ubiquity little agreement exists as to how such provisions should be enforced or defined. This has led prior commentators to conclude that tax discrimination is an incoherent concept. In this Article, we draw on both traditional and modern economic theory to develop coherent guidelines for interpreting tax nondiscrimination to require, in the alternative, locational neutrality, leisure neutrality, or competitive neutrality. Furthermore, we argue that in common markets, like the European Union and the United States, the best interpretation of the nondiscrimination principle is that it requires competitive neutrality, which prevents states from putting residents at a tax-induced competitive advantage or disadvantage relative to nonresidents. We show that, contrary to the prevailing view, maintaining a level playing field between resident and nonresident taxpayers requires neither tax rate harmonization nor equal taxation of residents and nonresidents. Our approach produces simple rules of thumb that provide states and courts with clear direction in writing tax laws and evaluating challenges to those laws.

Highly recommended.

Book Announcement: Braintrust by Churchland

Braintrust
What Neuroscience Tells Us about Morality
Patricia S. Churchland
 

To read the entire book description or the introduction, please visit: http://press.princeton.edu/titles/9399.html

What is morality? Where does it come from? And why do most of us heed its call most of the time? In Braintrust, neurophilosophy pioneer Patricia Churchland argues that morality originates in the biology of the brain. She describes the "neurobiological platform of bonding" that, modified by evolutionary pressures and cultural values, has led to human styles of moral behavior. The result is a provocative genealogy of morals that asks us to reevaluate the priority given to religion, absolute rules, and pure reason in accounting for the basis of morality.

"Churchland guides the reader through lucid, well-articulated explanations of subjects like oxytocin's effect on an individual's hormonal makeup, brain changes over time, and relevant gene research, tying these neuroscientific elements together with more social science oriented areas like cooperation, trust, and rule creation. This influential work is likely to be a valuable resource for anyone seeking to gain a fresh, exciting perspective on an oft-discussed area of philosophy."--Elizabeth Millard,ForeWord Reviews

 

Cloth | $24.95 / £16.95 | ISBN: 978-0-691-13703-2
e-Book | $24.95 | ISBN: 978-1-4008-3808-0

 

Workshop Announcement: Conducting Empirical Legal Scholarship at Northwestern

The upcoming Conducting Empirical Legal Scholarship Workshop presented by Northwestern University School of Law and Washington University School of Law, will take place May 25-27, 2011, at Northwestern University School of Law in Chicago. 

The Conducting Empirical Legal Scholarship workshop is for law school faculty interested in learning about empirical research. Leading empirical scholars, Lee Epstein, and Andrew D. Martin will teach the workshop, which provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. Participants need no background or knowledge of statistics to enroll in the workshop. 

I hope you will forward this information on to any other scholars you think may benefit from the workshop.  For more detailed information including the schedule, please visit http://www.law.northwestern.edu/faculty/empiricalworkshop/.  In addition to paying by check you may also pay by credit card. Graduates students receive 50% off the registration fee.

 

If you have any questions, I can be reached at (312) 503-1570 or michael-cooper@law.northwestern.edu.

 

Luban on Arendt & International Criminal Law

David J. Luban (Georgetown University Law Center) has posted Hannah Arendt as a Theorist of International Criminal Law (International Criminal Law Review, 2011) on SSRN. Here is the abstract:

This paper examines Hannah Arendt's contributions as a theorist of international criminal law. It draws mostly on Eichmann in Jerusalem, particularly its epilogue, but also on Arendt's correspondence, her writings from the 1940s on Jewish politics, and portions of The Human Condition and her essays. The paper focuses on four issues: (1) Arendt's conception of international crimes as universal offenses against humanity, and the implications she draws for theories of criminal jurisdiction; (2) her "performative" theory of group identity as acts of political affiliation and disaffiliation, from which follows a radically different account of the crime of genocide than that of Raphael Lemkin; (3) the "banality of evil," and its relation to legal conceptions of mens rea; and (4) her ultimately inconclusive assessment of law's capacity to confront the radically unprecedented crimes of regimes that are themselves criminal, and which systematically invert the values necessary to distinguish legal rules from exceptions. The essay was written for a symposium on women and international criminal law in honor of Judge Patricia Wald.

Highly recommended.

Stern on the Case Method & Detective Stories

Simon Stern (Faculty of Law, University of Toronto) has posted Detecting Doctrines: The Case Method and the Detective Story (Yale Journal of Law and the Humanities, Vol. 23, No. 2, 2011) on SSRN. Here is the abstract:

Many scholars have compared legal judgments with detective stories, and have suggested that law professors should teach cases in a way that reflects the structure of detective fiction. This essay explores that analogy, arguing that detective fiction’s asserted concern with the logical analysis of clues helps to show why exponents of legal doctrine would look to this genre as a model. Detective stories changed in the late nineteenth century, for the first time organizing their narrative structure around the use of clues, and hence claiming to promote logical reasoning in a way that allowed the reader to compete with the detective in solving the mystery. This explanation echoes the rationales offered by the advocates of the case method when it was first being endorsed around the same time. Law teaching changed similarly, moving from the methods of lecture and memorization to an approach that required students to navigate a narrative medium (the case) and to discover its essential components on their own. These two developments, in literature and law, stem from a common source - the emergence of new scientific methods aimed at tracing visible effects back to their hidden causes, exemplified by Charles Lyell’s work in geology and Charles Darwin’s work in evolution. When the early advocates of the case method talked about legal science, they emphasized scientific values such as coherence, clarity, and consistency, but an equally important aspect of the enterprise received much less rhetorical emphasis - namely, the method itself, which reflected the forms of scientific inquiry exemplified by Lyell and Darwin.

This essay explores those connections by considering various historical and structural analogies between the case method and the detective story. Part I takes up the changes in legal education associated with Christopher Columbus Langdell at Harvard, and discusses the intellectual roots of the case method, the justifications offered in its support, and the narrative tendencies that it relies on and promotes. Part II turns to the origins of the modern detective story near the end of the nineteenth century, and shows how the genre developed from the same scientific background as the case method. This section then examines in greater detail some of the ways in which case-method pedagogy may be said to cultivate the same habits as detective fiction, and concludes with some examples in which courts have expressly invoked the analogy to describe their own procedures or have crafted doctrines with the aid of propositions borrowed from detective stories. Part III considers some examples of detective fiction, pursuing the analogy further by asking why lawyers often figure as detectives in these stories. Finally, in a short conclusion, I discuss the analogy’s implications by considering the emergence, around the turn of the nineteenth century, of a doctrinal approach that discovered underlying rights behind express constitutional guarantees.

Nahmod on Justice Souter & Government Speech

Sheldon H. Nahmod (Chicago-Kent College of Law - Institute for Law and the Humanities) has posted Justice Souter on Government Speech (Brigham Young University Law Review, Vol. 2010, p. 2097, 2010) on SSRN. Here is the abstract:

Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan was handed down in 1991, and the most recent case, Pleasant Grove City v. Summum, was handed down in 2009.

This Article is modest in scope and primarily descriptive. I propose to address each of the nine Supreme Court decisions in which government speech is discussed either by the Court or by Justice Souter, with an emphasis on Justice Souter’s often differing and cautionary observations about the doctrine. I do not engage here at a normative level with the government speech doctrine, even though I am worried about the Court’s increasing use of the doctrine to avoid difficult First Amendment issues.

Spalding on U.S. & Chinese International Business Law

Andrew Brady Spalding (Chicago-Kent College of Law) has posted The Irony of International Business Law: U.S. Progressivism, China’s New Laissez Faire, and Their Impact in the Developing World (UCLA Law Review, Vol. 59, 2011) on SSRN. Here is the abstract:

As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominently in federal law. But the dominant paradigm through which academics and policymakers continue to view that law – the so-called “Washington Consensus” – proves deeply misleading. A more accurate account of the components, origins, and aims of U.S. international business law reveals two striking ironies.

First, in discrete but critical ways, the U.S. no longer represents the comparatively laissez-faire approach to federal business regulation. Rather, owing to its origins in the Progressive Era, U.S. federal law directs corporations toward non-economic social goals, particularly combating corruption (e.g. the Foreign Corrupt Practices Act) and promoting human rights (e.g. the Alien Tort Statute or economic sanctions). By contrast, the alternative legal regime to which the U.S. is frequently compared – China – largely allows companies to pursue profits internationally without regard to their impact on corruption and human rights. Though it remains true that the U.S. regime and its principal alternative are distinguished by the extent to which the state restricts business conduct to achieve social goals, the roles are now reversed.

Second, the rise of an alternative model now substantially thwarts the goals of U.S. progressive regulation. Empirical research in political science and economics demonstrates that because the U.S. regime increases the costs of doing business in emerging markets, U.S. companies tend to invest less. The resulting void in capital is filled by companies from countries – particularly China – that lack prohibitions on bribery and human rights violations. Ironically, enforcement of U.S. progressivism thus creates the very conditions in which corruption and human rights violations occur.