Legal Theory Blog

Curtis on Plurality Precedent

Channing J. Curtis (University of Mississippi, School of Law) has posted Clarifying Plurality Precedent: Historical Applications and Theories of Holdings on SSRN.  Here is the abstract:

Plurality decisions complicate the law of judicial precedent, leaving practitioners, courts, and academics alike at a loss for sound methodology to determine a binding rule of law. Scholars have thus commented that the Marks rule should be abandoned, while others seek to clarify its application. But in all this discussion and debate over plurality precedent and the Marks rule, a few points are overlooked. First, scholars readily dismiss affirmances by an evenly divided court in any analysis of plurality precedent. However, the reasons why affirmances by an evenly divided court are universally thought to be of no precedential authority, may lend a hand in deciding whether the Marks rule is wrong. Second, scholars often briefly mention the historical treatment of plurality decisions prior to Marks, but there has been virtually no analysis of the opinions dealing with the question of plurality opinions prior to the Supreme Court’s decision in Marks. State, federal and scholarly treatment of plurality decisions may lend a hand in assessing whether the Marks rule is grounded in sound legal theory. Finally, scholars often fail to ground any discussion of the Marks rule in the much deeper theoretical framework of holdings. This Article fills these gaps in the literature on plurality precedent.

Recommended.

Zaman on Freedom of Religion for Non-Muslims in Pakistan

Tasmiah Zaman (The Honourable Society of Lincoln’s Inn, United Kingdom) has posted Freedom of Religion for Non-Muslims in Islam: A Pakistani Affair (Law and Humanities Quarterly Reviews, Vol.5 No.2 (2022)) on SSRN.  Here is the abstract:

Pakistan has long claimed itself to be Shariah compliant, as particularly enshrined in the preamble of its Constitution to be an Islamist State. However, the religious minority, which makes up about 2-4% of the total population, especially the Hindus, have always been the target of persecution, denied religious freedom and even forced to convert to Islam. It is an irony that a state making such a constitutional claim of abiding by the Quran and Sunnah has turned a deaf ear to the freedom of religion and the rights that Islam guarantees to the non-Muslims of a Muslim state. The Quran and the teachings of the Prophet are not only clear on this subject but also vigilant in upholding the rights of non-Muslims. Although religious minorities in Pakistan comprise of not only Hindus but Christians, Sikhs, Ahmadiyyas and other ethnic minorities, this paper intends to focus solely on the plight of the Hindus in Pakistan, in light of the freedom of religion guaranteed by Islam. The study shall focus on the persecution of the Hindu minorities by way of forced conversions, refusal of the right of practicing their own religion and the recent halt of the construction of a temple in Islamabad. The research further engages in the historical perspective of freedom of religion in Pakistan and its relationship with the Islamic ideology it possesses, as opposed to the true teachings of the Quran and Sunnah which is evidential of the harmonious relationship among people of all religions, cultures and ideology.

Legal Theory Lexicon: Virtue Ethics

Introduction

The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.

What is virtue ethics?  Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjectival form of arete.

In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.

It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:

• Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
• Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
• Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.

Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) and the central idea of moral theory and deontology focuses on actions and moral rules, virtue ethics focuses on character and human excellence.

Modern Moral Philosophy

 Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.

The Virtues

What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.

The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.

The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science, and theory. The intellectual virtues are initially developed by teaching and mature through experience.

A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.

Virtue Ethics and Human Good

What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons.

And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"

Particularism and Phronesis

Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.

Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.

Virtue Politics and Virtue Jurisprudence

 What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.

What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.

In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.

One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:

What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.

Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.

Conclusion

 While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.

If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 031: Virtue Jurisprudence
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography

• Anscombe, G.E.M., Modern Moral Philosophy, 33 Philosophy 1-19 (1958), reprinted in G.E. M. Anscome, Ethics, Religion and Politics: Collected Philosophical Papers (1991).
• Crisp, Roger (ed.), How Should One Live?: Essays on the Virtues (Oxford: Clarendon Press 1996).
• Crisp, Roger and Michael Slote (eds.), Virtue Ethics (Oxford Readings in Philosophy) (Oxford: Oxford University Press 1997).
• Foot, Philippa, Virtues and Vices (Oxford: Blackwell 1978).
• Paula Gottleib, The Virtue of Aristotle's Ethics (Cambridge University Press 2009).
• Hursthouse, Rosalind, On Virtue Ethics (Oxford: Oxford University Press 1999). The single best one-volume statement of virtue ethics.
• Solum, Lawrence B., Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003).
• Solum, Lawrence B., Natural Justice, 51 American Journal of Jurisprudence 65-105 (2006).
• Statman, D. (ed.), Virtue Ethics: A Critical Reader (Edinburgh: Edinburgh University Press 1997).

Links to Online Resources

• Virtue Ethics in the Stanford Encyclopedia of Philosophy by Rosalind Hursthouse. I highly recommend this as a starting point for further reading on virtue ethics.
• Internet Encyclopedia of Philosophy Entry on Virtue Theory
• Wikipedia Entry on Virtue Ethics
• Wikipedia Entry on Virtue Jurisprudence

(This entry was last revised on March 19, 2023.)

Legal Theory Bookworm: "Constitutional Public Reason" by Sadurski

The Legal Theory Bookworm recommends Constitutional Public Reason by Wojciech Sadurski.  Here is a description:

Public reason, which urges that only laws based on principles reasonably agreeable to all those bound by them are legitimate, has rarely been applied to constitutional law, and never in a comparative way. This book aspires to fill that gap, by studying the use of public reason in different constitutional systems. In doing so, it studies public reason both as a normative idea - as a principle postulated for democratic constitutionalism, and as a descriptive account - as helping to understand many important doctrines in constitutional adjudication of some leading constitutional courts around the world, and also in the supranational sphere.

Constitutional Public Reason questions the performance of leading 'exemplars of public reasons', including the top courts of the United States, India, Canada, Australia, Germany, and South Africa, as well as the European Court of Human Rights. It also attempts to show how this performance can be improved in fields such as freedom of expression, non-establishment of religion, and anti-discrimination law. Ultimately, it finds that the best resonance between the ideal of public reason and constitutional interpretation is found in doctrines that locate the illegitimacy of laws in the wrongful motives (or purposes) pursued by legislators. Scrutinising motives is often as important as scrutinising consequences.

Download of the Week: "Constitutional Rights, Remedies, and Transsubstantivity" by Crocker

The Download of the Week is Constitutional Rights, Remedies, and Transsubstantivity by Katherine Mims Crocker.  Here is the abstract:

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California indeed enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and inconsistency, in judicial decisionmaking—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for discrete constitutional wrongs. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial nontranssubstantivity can be transparent, translucent, or opaque based on the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently non-transsubstantive, for instance, because they apply differently to discrete referents on their faces. And indeterminate remedial standards (like the political-question doctrine for justiciability and the plan-of-the-Convention doctrine for state sovereign immunity) are opaquely nontranssubstantive because discerning their inconsistent character requires inductive analysis of actual applications.

After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional-remedies law—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent nontranssubstantivity more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque nontranssubstantivity into diverse doctrinal areas before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering transsubstantivity as an important—but not absolute—aspect of constitutional-remedies law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political and thereby reinforcing its legitimacy at this time of skepticism.

Highly recommended!  Download it while it's hot!

Bookmann on Constitutional Environmental Democracy

Sam Bookmann (Harvard University, Law School) has posted Demystifying Environmental Constitutionalism (Forthcoming, Environmental Law, Vol. 54, No. 1, 2024) on SSRN.  Here is the abstract:

In an age of pervasive environmental crisis, a vast majority of the world’s constitutions now include environmental provisions. But how does environmental constitutionalism improve environmental governance? Constitutionalization tells us little about how the environment should be managed. Instead, environmental constitutionalism is capable of many different meanings and legal forms. This article draws out three different paradigms: liberal-conservative, technocratic, and transformational. Each paradigm corresponds to a different set of legal institutions, constitutional provisions, and approaches to interpretation, making drastically different demands of constitutional drafters and judges. Environmental constitutionalism calls for urgent and high-level action, without revealing a clear agenda for environmental governance. Before answering its call, we should demystify its meaning.

And environmental constitutionalism remains potentially dangerous for another reason: it almost universally involves a turn to rights and courts. Like all forms of constitutional entrenchment, such a turn comes at the expense of democratic participation. But it is precisely this high energy democracy that is necessary to truly transform the institutions which have brought us to environmental crisis. This article argues for the reconstruction of environmental constitutionalism as constitutional environmental democracy. Drawing on traditions of popular and political constitutionalism, constitutional environmental democracy emphasizes the role of participatory institutions outside the judicial branch. This article sketches out a future research agenda centered on legislative mandates, deliberative assemblies, and constitutional experimentalism. In the Anthropocene, constitutions matter: but they matter beyond the world of rights and courts.

Highly recommended.

Crocker on Constitutional RIghts and Transsubstantivity

Katherine Mims Crocker (William & Mary Law School) has posted Constitutional Rights, Remedies, and Transsubstantivity (110 Virginia Law Review (2024 Forthcoming)) on SSRN.  Here is the abstract:

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California indeed enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and inconsistency, in judicial decisionmaking—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for discrete constitutional wrongs. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial nontranssubstantivity can be transparent, translucent, or opaque based on the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently non-transsubstantive, for instance, because they apply differently to discrete referents on their faces. And indeterminate remedial standards (like the political-question doctrine for justiciability and the plan-of-the-Convention doctrine for state sovereign immunity) are opaquely nontranssubstantive because discerning their inconsistent character requires inductive analysis of actual applications.

After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional-remedies law—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent nontranssubstantivity more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque nontranssubstantivity into diverse doctrinal areas before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering transsubstantivity as an important—but not absolute—aspect of constitutional-remedies law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political and thereby reinforcing its legitimacy at this time of skepticism.

Highly recommended!  Download it while it's hot!

Silbey on "Privacy at the Margins" by Skinner

Jessica M. Silbey (Boston University - School of Law) has posted Four Privacy Stories and Two Hard Cases (Constitutional Commentary, Vol. 37, No. 2, 2022 (221-258)) on SSRN.  Here is the abstract:

In the context of reviewing Scott Skinner's book "Privacy at the Margins" (Cambridge University Press, 2021), this article discusses four "privacy stories" (justifications for and explanation of the application of privacy law) that need substantiation and reinterpretation for the 21st century and for what I call "fourth generation" privacy law and scholarship. The article then considers these stories (and Skinner's analysis of them) in light of two "hard" cases, one he discusses in his book and one recently decided by the Massachusetts Supreme Judicial Court, both concerning privacy in taking and dissemination of photographs.

Highly recommended.

Fissell on Police Made Laws

Brenner Fissell (Villanova University; Villanova University, Law School) has posted Police-Made Law (Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:

This Article presents evidence that police are writing the laws that they enforce. This newly discovered phenomenon compounds the existing understanding of police “making” law through the exercise of discretion. They make law in a far more direct way, functioning as quasi-legislators at the local level—identifying a social problem, drafting an offense to address it, and directly proposing their offense for enactment. The conduct targeted, and the reasons for doing so, are diverse. For example, in one city a police chief successfully criminalized public intoxication so that intoxicated people would go to jails instead of hospitals; in another, a chief pushed through an anti-vaping ordinance because of news articles he read about the dangers of e-nicotine.

Contextualizing police-made law within policing theory and local government structure makes it less surprising, but we should be critical of it in many types of cases. Democratic political theory sets requirements for when bureaucratic interest groups may legitimately influence legislative deliberation, and police often fail to meet these. Basic expectations of neutrality and expertise, derived from administrative law, are often lacking.

Police-made law changes how we understand the role of police in governance. Rather than being the downstream recipients of extraneously conferred authority, they are active participants in the expansion of their own power. Police are not mere agents of the racialized mass misdemeanor system—they are also its architects.

Highly recommended.  Download it while it's hot!

Benjamin, Quinn, & Kim on Partisan, Racial, and Gender Differences in Treatment of Prior Opinions on the United States Court of Appeal

Stuart Minor Benjamin (Duke University School of Law), Kevin M. Quinn (University of Michigan at Ann Arbor - Department of Political Science), ByungKoo Kim (University of Michigan at Ann Arbor - Department of Political Science, Student) have posted Twenty-First Century Split: Partisan, Racial, and Gender Differences in Circuit Judges Following Earlier Opinions (Brigham Young University Law Review, Vol. 49, 2024) on SSRN.  Here is the abstract:

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate opinions and their party, race, and gender. Are judges of a particular party, race, or gender more likely to positively treat (that is, follow) opinions written by judges who share that attribute than are judges of a different party, race, or gender? What we find is both surprising and nuanced. We have two major findings. First, over the forty-four years of our study, we find growing partisan differences in positive treatments of earlier opinions. The partisan differences are largest for treatments in ideologically salient categories of cases. Interestingly, the partisan differences arise more for treatments of opinions written by Democratic appointees than for opinions written by Republican appointees, which we think is best explained by an accelerating movement among Republican appointees in a conservative direction compared to a steady move among Democratic appointees in a liberal direction. The increase in partisan differences is not a function of presidential cohorts or age cohorts. Second, there are intra-party racial and gender differences in positive treatments of past opinions, and these differences are similar to the partisan differences. Within each party, Black and White judges differ in their treatments of opinions authored by Black copartisans, Hispanic and White judges differ in their treatments of opinions authored by Hispanic copartisans, and female and male judges differ in their treatments of opinions authored by female copartisans. Similar to the partisan divergence noted above, we also find that some of these differences increase in magnitude over time—with particularly notable increases in the Black-White Democratic differences, Hispanic-White Republican differences, and female-male Republican differences. Notably, the racial and gender differences we find in positive Shepard’s treatments are not mirrored in most studies of racial and gender differences in judicial behavior, which focus on merits votes and include a much smaller number of cases.

These results defy easy explanation. They do not support the proposition that party, race, and gender have always played a pervasive role for judges. Instead, our results provide evidence of increasing partisan, racial, and gender polarization among judges in recent years. For reasons we explain in the body of this Article, the partisan, racial, and gender differences we find appear to be a function of political ideology. Further, because the racial and gender differences are within parties, our results indicate that not only partisan differences but also intra-party racial and gender ideological differences have risen in recent years (particularly for Republican judges).

Our data thus reveal polarization among circuit judges and, as a result, in their shaping of the law. Many groups in the United States have become more ideologically polarized in recent years. Our data indicate that judges are one of them.

Highly recommended.  Download it while it's hot!

van den Berge on van der Walt on Liberal Democratic Law

Lukas van den Berge (Utrecht University - Faculty of Law; Utrecht University) has posted The Fragility of Liberal Democratic Law: Reflections on the Work of Johan van der Walt (Netherands Journal of Legal Philosophy, Vol. 52, No. 1, 2023, pp. 3-15) on SSRN. Here is the abstract:

With populism and political illiberalism on the rise, established principles of liberal democracy and the rule of law have shown to be fragile. Consequently, many scholars of legal philosophy and political theory have set out to investigate how these principles could be defended against outward threats. In his recent work, legal philosopher Johan van der Walt takes another approach, aimed at rethinking the core principles of liberal democracy and the rule of law themselves. The Netherlands Journal of Legal Philosophy has now published a special issue in which Van der Walt explains how his newly developed ‘concept of liberal democratic law’ relates to the ideas of Rawls and Habermas. His article is followed by responses from Hans Lindahl (Tilburg), Chiara Raucea (Tilburg), Irena Rosenthal (Nijmegen), Stefan Rummens (Leuven), Ronald Tinnevelt (Nijmegen), Manon Westphal (Münster) and Nikolas Vagdoutis (Luxembourg). The present paper introduces the reader to the special issue and provides some reflections on Van der Walt’s recent work on liberal democracy and the rule of law.

Recommended.

Dhapwal on Personhood in India and the UK

Anubha Singh Dhapwal (National Law Institute University (NLIU), Bhopa) has posted Personhood: India and UK Comparison on SSRN.  Here is the abstract:

Very often “personhood” and “humanhood” are used interchangeably. Black’s law dictionary defines personhood as “a person is any being whom the law regards as capable of rights and duties”. Theoretically, only human beings can hold legal rights and therefore, nonhuman animals are not regarded as legal persons as they don’t hold legal rights. If we take into consideration various theories of rights, we will notice that historically, the acknowledgment of rights has been associated with the levying of societal obligations and duties.

Following the theory, courts of various jurisdictions believe that nonhumans cannot fulfill the criteria of “social obligations” in exchange for rights, therefore, it’d be inappropriate to confer legal rights upon such nonhumans. Although animals haven’t been conferred with the status of legal personhood, various countries have now implemented animal welfare statutes that vest legal rights on such non-humans. There is no clear-cut distinction between legal personhood and non-humans as there are instances wherein entities have been considered as a legal person for one purpose but were not regarded as legal persons in a general sense.

Therefore, personhood is a multifaceted disjunctive property that includes various incidents of personhood. These incidents of personhood can be divided into 2 categories – active and passive. The former is primarily applicable to adult humans with a sound mind as it deals with the right to enter into a contractual relationship and is applicable to those whose behavior is regulated through statutes and upon deviation from the regulated behavior, they can be held accountable for their actions. Active legal personhood is also known as legal competence whereas passive legal personhood is known as legal capacity, which denotes a person’s capacity to hold rights and bear duties.

In this project, the author will discuss various entities that have been vested with the status of legal personhood and whether such vesting of legal rights is justified under the public policy and various theories concerning rights. The legal rights which are vested in these nonhuman persons consist of 3 elements: legal standing, right to enter into a contractual relational and enforce the same, and right to own property.

Katz, Bommarito, Gao, & Arredondo on Chat GPT-4 and the Bar Exam

Daniel Martin Katz (Illinois Tech - Chicago Kent College of Law; Bucerius Center for Legal Technology & Data Science; Stanford CodeX - The Center for Legal Informatics; 273 Ventures), Michael James Bommarito (273 Ventures; Licensio, LLC; Stanford Center for Legal Informatics; Michigan State College of Law; Bommarito Consulting, LLC), Shang Gao (Casetext), & Pablo Arredondo (Casetext; Stanford CodeX) have posted GPT-4 Passes the Bar Exam on SSRN.  Here is the abstract:

In this paper, we experimentally evaluate the zero-shot performance of a preliminary version of GPT-4 against prior generations of GPT on the entire Uniform Bar Examination (UBE), including not only the multiple-choice Multistate Bar Examination (MBE), but also the open-ended Multistate Essay Exam (MEE) and Multistate Performance Test (MPT) components. On the MBE, GPT-4 significantly outperforms both human test-takers and prior models, demonstrating a 26% increase over ChatGPT and beating humans in five of seven subject areas. On the MEE and MPT, which have not previously been evaluated by scholars, GPT-4 scores an average of 4.2/6.0 as compared to much lower scores for ChatGPT. Graded across the UBE components, in the manner in which a human tast-taker would be, GPT-4 scores approximately 297 points, significantly in excess of the passing threshold for all UBE jurisdictions. These findings document not just the rapid and remarkable advance of large language model performance generally, but also the potential for such models to support the delivery of legal services in society.

Highly recommended.

Somin on Expanding the Anticanon

Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) has posted The Case for Expanding the Anticanon of Constitutional Law (Wisconsin Law Review, Forthcoming (Symposium on "Controlling the Supreme Court: Now and Far Into the Future")) on SSRN.  Here is the abstract:

The “anti-canon” of constitutional law is an underappreciated constraint on judicial discretion. Some past decisions are so reviled that no judge can issue analogous rulings today, without suffering massive damage to his or her reputation. This article argues for expanding the anti-canon, and proposes three worthy new candidates: The Chinese Exclusion Case, Euclid v. Ambler Realty, and Berman v. Parker. The three rulings all share in spades the main characteristics of other anti-canonical decisions: terrible legal reasoning, enormously harmful real-world effects, and facilitating racial and ethnic discrimination and oppression. Part I outlines the nature of the anti-canon and how cases can “qualify” for it. Part II makes the case for adding new cases to the list. Finally, Part III explains why The Chinese Exclusion Case, Berman, and Euclid would be worthy additions to the Supreme Court’s Hall of Shame.

Recommended.

Chen & Estreicher on a Defence of the Major Questions Doctrine

Brian Chen (New York University School of Law) & Samuel Estreicher (New York University Law School) have posted The New Nondelegation Regime (University of Pennsylvania Journal of Constitutional Law, Vol. 26, 2023) on SSRN.  Here is the abstract:

The “major questions” doctrine has sparked extensive criticism from across the political and ideological spectrum. Some view it as naked purposivism; others denounce it as a baseless blow against the regulatory state. This Article casts new light on the debate. We argue that the major questions doctrine enforces otherwise underenforced constitutional norms without the disruption that comes with a reinvigorated nondelegation doctrine. The major questions doctrine further clarifies the scope and basis of Chevron deference. If the line between “major” and “nonmajor” questions is drawn in a principled manner (which it can be), the doctrine serves as an important and sensible way for federal courts to check agencies which assert unprecedented and immense authority under broadly worded statutory language. Therefore, the major questions doctrine steers courts away from a robust nondelegation doctrine. Prospects of sound, much-needed regulations would fare far worse under that alternative regime.

Highly recommended.

Green et al on State-Court Departures from US Supreme Court Precedent on State Law Grounds

Christopher R. Green (University of Mississippi - School of Law), Charles Langley (University of Mississippi - School of Law), Elena Mosby Peters (University of Mississippi, School of Law, Students), David Camp Pittman (University of Mississippi - School of Law), & Suzette Nicole Wafford-Turner (University of Mississippi - School of Law) have posted State-Court Departures from the Supreme Court: A Comprehensive Survey (92 Mississippi Law Journal 329 (2023)) on SSRN.  Here is the abstract:

This Article canvasses the 1,013 cases from the U.S. Supreme Court to which Westlaw has assigned “Not Followed on State Law Grounds” tags (so far), about a thirtieth of the 29,956 cases in Harold J. Spaeth’s database on the Court. These cases feature a total of 1,868 such departures. California has the most, 114, followed by Texas with 92, Washington with 89, New York with 73, and Massachusetts and Hawaii with 67 each. All states have some departures; Maine at six has the fewest. The cases triggering the most departure are Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993), on the standards for expert testimony, with 24 departing states, United States v. Leon (1984), establishing a good-faith exception to the exclusionary rule, with 17, California v. Hodari D. (1991), holding that a chase is not a Fourth Amendment “seizure,” with 16, Illinois Brick Co. v. Illinois (1977), denying antitrust standing to indirect purchasers, with 15, and Moran v. Burbine (1986), allowing police not to inform a suspect that a lawyer wanted to talk to him, with 14.

A predecessor article canvassed the Court’s 342 Fourth Amendment cases, finding 306 departures from 125 cases. The Fourth Amendment subset and the full set feature the same overall statistically-significant correlations with characteristics of Supreme Court cases: older cases have fewer departures, those with dissents have more, and those that have been overruled do not significantly correlate with departures. The Fourth Amendment subset features very different statistically-significant correlations, however, with state characteristics. A state’s population was not significantly correlated with Fourth Amendment departures but is the most significant factor for overall departures. State income is significantly related to overall departure but not Fourth Amendment departure, while a state’s partisan tilt is related in both areas. States’ methods of choosing judges, however, are not significantly correlated with either overall or Fourth Amendment departures.

Agnihotri on the Doctrine of Pious Obligation in the Hindu Legal System

Shubhankar Agnihotri has posted A Critical Analysis of Doctrine of Pious Obligation on SSRN.  Here is the abstract:

In the Hindu legal system, literature and society considered repayment of debt a very important Act. It plays an important role at the time of death. In Hindu mythology, it is considered that if a person died without repaying his debt, then he will be born as a servant or slave in the house of his creditor. Hindu scholars and sages say that if a Hindu died without repaying his debt, then it is the duty of his son to repay the debt and discharge his father from the sin of debt. This mythology gave birth to pious obligation. ‘Pious’ means religious or moral and ‘Obligation’ means duty. The doctrine of pious obligation is the special type of liability on the son to pay back his father’s debt. In general terms son, grandson and great-grandson are liable to repay the debt of their father, grandfather, and great-grandfather. So we can say that the sole purpose of this doctrine is to discharge the father from the sin of non-payment of debt. When we talk about the debt the son is liable to pay only the Vyavharika (legally and morally obtained) debts if the debt is an Avyavharika (illegally and immorally) obtained then the son will not be liable to pay back the debt. Son can repay the debt of his father from the ancestral property which he holds. The main motive behind this obligation is that son succeeding certain rights and property and benefits from these rights and property then why should he not be liable for the repayment of the debt? It is the religious obligation of the male descendants to pay back the debt of their ancestors. As well as religious obligation this doctrine has some statutory perspectives also. Sidheshwar Mukherjee Vs. Bhubaneshwar Prasad Narayan1 was the first case related to the doctrine of pious obligation in this case court said that the doctrine of pious obligation has its root in the smritis and it is the duty of a son to repay the Vyavharika debt of his father. In this paper, we will analyze and discuss the doctrine of pious obligation and its applicability. We will understand and compare the doctrine of pious obligation pre and post-2005 (after the Hindu succession Amendment act 2005).

Perez & Wimer on Algorithmic Constitutionalism and AI Governance

Oren Perez (Bar-Ilan University - Faculty of Law) & Nurit Wimer (Bar-Ilan University, Faculty of Law, Students) have posted Algorithmic Constitutionalism on SSRN.  Here is the abstract:

The increasing encroachment of artificial intelligence (AI) on social life raises various risks to society, most prominently in the info-spheres created and controlled by Google, Facebook, Apple, and Amazon. We examine these risks through an in-depth discussion of the Facebook content moderation regime, which is already partially controlled by algorithms. We argue that the idea of ethical engineering, which was developed by the literature as a solution to the challenge of governing AI, is inadequate for various reasons. In this article, we develop a different approach to coping with the risks of AI governance, which we have termed “algorithmic constitutionalism.” Our approach rests on three pillars: (a) layered architecture that consists of two levels of code: (i) operative or object level and (ii) meta level, whose purpose is to shield the core principles of the system from algorithmic-initiated changes; (b) algorithmic meta-reasoning, which allows the system to operate simultaneously at the two levels, so that it can (self) monitor, verify, and potentially correct in real time operations at the object level, if they depart from the principles protected by the meta-code level; and (c) correction by deliberation. We elaborate the idea of algorithmic constitutionalism and demonstrate how it can be applied to the Facebook content moderation regime. As part of this elaboration, we also consider the tension between societal and algorithmic constitutionalism. Paradoxically, the attempt to subject the AI algorithm to external deliberative control also opens the door for the AI agent to intervene in that process, potentially undermining its very purpose. We conclude by exploring the implications of our argument for the new European Digital Services Act, which came into force in October 2022.

Highly recommended.

Petrigh on Judicial Resistance to New York Criminal Justice Reforms

Angelo Petrigh (The Bronx Defenders) has posted Judicial Resistance to New York's 2020 Criminal Legal Reforms (Journal of Criminal Law and Criminology, Vol. 113, No. 1, 2023) on SSRN.  Here is the abstract:

This Article seeks to examine judicial opposition to New York’s 2020 criminal justice reforms in the context of existing scholarship on judicial organizational culture to understand why judicial obstruction occurs and how it can be addressed. New York’s 2020 criminal legal reforms sought to reduce pretrial detention and to provide greater access to discovery for the defense by curtailing judicial discretion to set bail and judicial power to excuse prosecutorial discovery delays. But judges opposed the law both surreptitiously and openly through defiant opinions, administrative adjustments, and routine court actions that undercut the reforms’ intended effects.

Scholars such as Malcolm Feeley, Brian Ostrom, and Roger Hanson have written about how the informal organizational culture of a court system can be an impediment to reforms. Their analysis applies to New York’s 2020 reforms and provides insight into why this specific resistance occurred and how it can be addressed. The judiciary was included in planning and discussing the 2020 reforms and the reforms sought to remove judicial discretion in the matters of bail and discovery. Yet when it came time to implement the change, judges used other powers to avoid releasing individuals and to avoid sanctioning prosecutors.

This is at least partially due to New York’s judicial appointment scheme which makes the judiciary sensitive to structural narratives concerning public safety and court leniency. Although these reforms were democratic and popular, judges were not sufficiently incentivized to properly implement the changes. If reforms are to succeed, the popular and political will to pass the reforms must extend beyond the passage of the law and must also create mechanisms to scrutinize, guide, and support the judiciary’s implementation of the law.

Stepnitz on Asylum Narratives

Abigail Stepnitz (Drake University) has posted Storied Pasts: Evolving Norms in US Affirmative Asylum Narratives 1989-2018 (Law and Inequality: A Journal of Theory and Practice, Vol. 41, No. 2, 2023) on SSRN.  Here is the abstract:

This article develops a framework for understanding the emergence and evolution of structural and substantive norms in asylum narratives over time. First I offer an historical framework which shows how these norms evolve as a result of combined legal, political, cultural and institutional changes. Institutional norms are infused with politics, undergo processes of bureaucratization, and change in response to imperatives and opportunities presented by social and cultural shifts in the way asylum is framed. Second, drawing on a sample of 120 affirmative asylum claims filed between 1989 and 2018, I offer an empirical analysis which reveals the rise of a contemporary system in which competing demands on asylum stories severely limit how those seeking protection can communicate about their experiences. The result is a legal and institutional environment in which asylum seekers must respond to demands for increasing conformity to institutional expectations about how experiences are narrated by adhering to a progressively more formalized, legally and institutionally-legible structure for narrating experiences of persecution or fear.

Koppelman on DeGirolami on Traditionalism

Andrew Koppelman (Northwestern University School of Law) has posted The Use and Abuse of Tradition: A comment on DeGirolami’s Traditionalism Rising (Journal of Contemporary Legal issues, 2023 Forthcoming) on SSRN.  Here is the abstract:

Marc DeGirolami’s essay, Traditionalism Rising, argues that the Supreme Court is now deploying what he calls “traditionalist methodology” to decide cases, and that when it cites tradition it is following a “larger, longstanding interpretive method” for deciding cases.

The paper is a valuable contribution that documents an important trend. The Court is in fact invoking tradition with remarkable frequency. But it is a mistake to call what the Court is doing a single “methodology.” Tradition is relevant in different ways in different contexts. It is confusing to conflate them.

In many of the cases that DeGirolami cites, “tradition” is so malleable that it has no independent capacity to influence the outcome of cases. There is a method, but it consists in the deployment of traditionalist rhetoric to clear away obstacles to the destination that the Court desires to reach. Among those obstacles are state interests of the highest order – for instance, the safety and security of citizens, which are jeopardized by the destruction of longstanding limits on firearms.

The method is also a tool for nullifying annoying constitutional provisions. Some of those provisions, notably the Establishment Clause and the Reconstruction amendments, directly attack tradition. They are specifically designed to reject longstanding evils – pertinently for the Court’s recent work, the practice of compelling women to bear children.

Highly recommended.

Oh Antitrust Risk and M&A Disclosure

Jun Oh (Cornell University) has posted Antitrust Risk and Voluntary M&A Disclosure on SSRN.  Here is the abstract:

This study examines whether antitrust risk affects firms’ disclosure of mergers and acquisitions (M&As). Due to regulatory exemptions, deals that fall below a size threshold escape formal antitrust scrutiny at the time of the merger. These “non-reported” deals can have important implications for the firm’s pricing power of its products in segmented and localized markets. I hypothesize that firms face a trade-off between the benefits of disclosing these deals to capital markets (i.e., capitalize the product market benefits into stock prices in a timely manner) and the potential antitrust scrutiny the voluntary disclosure can invite, which increases the probability of agencies challenging the merger. Exploiting two quasi-exogenous variations in antitrust enforcement that affect the level of antitrust risk, I find evidence of acquirers strategically managing their disclosure of horizontal and intrastate deals according to the level of antitrust risk. My findings shed light on a new determinant of voluntary disclosure: the risk of costly antitrust enforcement.

Goold & Kelly on Pure Psychiatric Injury in Negligence

Imogen Goold (University of Oxford - Faculty of Law) & Catherine Kelly (University of Bristol) have posted Who’s Afraid of Imaginary Claims? Common Misunderstandings of the Origin of the Action for Pure Psychiatric Injury in Negligence 1888-1943 (Law Quarterly Review. 2022 ; Vol. 138. pp. 58-78) on SSRN.  Here is the abstract:

Discusses, with reference to case law, common misconceptions surrounding the origins and development of the negligence action for pure psychiatric injury between 1888 and 1943, and argues that fear of imaginary or fraudulent claims was not a characteristic of early rulings.

Harris on Judges as Agents of the Law

Daniel Harris (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Judges as Agents of the Law (Mitchell Hamline Law Journal of Public Policy And Practice,Vol.41, Article 1, 2020) on SSRN.  Here is the abstract:

A spate of recent scholarship uses fiduciary metaphors to model the roles of various public officials. One such article in the California Law Review posits that judges are fiduciaries of the people and therefore have the power (akin to that of corporate directors) to do whatever is in the best interests of the people, even if that means disregarding precedents or statutes. By contrast, a more traditional model sees judges as agents or servants of the law and therefore bound to follow the law rather than use it to advance their preferred policies.

This essay examines both approaches with particular emphasis on their use in ordinary business litigation. The essay concludes that telling judges to act as fiduciaries of the people encourages courted social change. Telling judges they are agents of the law is more consistent with the judicial oath, the rule of law, and the role of courts in the American democratic system.

Hendricks on Dobbs and Parental Rights

Jennifer S. Hendricks (University of Colorado Law School) has posted Domestic Supply (A Feminist Proposal) on SSRN.  Here is the abstract:

The Supreme Court’s decision in Dobbs was a disaster for women’s right to abortion, but maybe it’s time to start looking for the silver lining. Dobbs bemoaned the fact that people with the ability to become pregnant have control over “the domestic supply of infants” and suggested that people who can’t become pregnant have the right to a share of that reproductive capacity. This insight resonates with feminist arguments in family law, where control over the “domestic supply” can be understood to refer to women’s unfair advantage over their male sex partners when it comes to establishing parental rights. Dobbs opens the door to giving men more rights to children and more rights during pregnancy itself.

Mitchell on Roe v. Wade

Jonathan F. Mitchell (Mitchell Law PLLC) has posted Why Was Roe v. Wade Wrong? (Forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)) on SSRN. Here is the abstract:

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Guerra-Pujol on the The Original Debate over Citizenship in the Insular Territories

F. E. Guerra-Pujol (Pontifical Catholic University of Puerto Rico; University of Central Florida) has postedThe Pamphlet Wars: The Original Debate over Citizenship in the Insular Territories (Revista de Derecho Puertorriqueño, Vol. 38, No. 1 (enero-abril, 1999), pp. 221-235) on SSRN.  Here is the abstract:

This paper will examine some of the pamphlets on the Spanish-Cuban-American War that were published between 1898 and 1902 and will describe the extraordinary debate between the Expansionists and Anti-Imperialists over citizenship. In summary, the supporters of U.S. involvement in the war were known as the Expansionists, while the war’s opponents called themselves the Anti-Imperialists. Though neither side questioned whether the United States had the power under the Constitution to acquire new territory, the Expansionists and Anti-Imperialists differed sharply over the status of the inhabitants of the conquered territories. What were we, subject peoples or full American citizens?

Recommended.

Tsai on Animus

Robert L. Tsai (Boston University - School of Law) has posted Abandoning Animus (Alabama Law Review, Vol. 74, 2022) on SSRN.  Here is the abstract:

This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the Supreme Court has actually employed the anti-animus idea, it has done so haphazardly and problematically. Thus, the evidence of judicial use of the concept is not encouraging. Third, judges might not need the concept of animus to do the work of equality. Existing animus cases can be easily reimagined to emphasize the key principles and concerns of equality. Fourth, incentivizing litigants to make animus-based arguments may distract from core considerations, including the nature of the social good at stake and the material effects of unequal policies. If some or all of these observations are correct, it may be time to abandon animus.

Highly recommended.

von Rebay & Oberle on the Advisory Jurisdiction of the International Tribunal for the Law of the Sea

Anna von Rebay (Ocean Vision Legal) & Chiara Oberle (Gallifrey Foundation) have posted Booming Advisory Jurisdiction of the International Tribunal for the Law of the Sea? on SSRN.  Here is the abstract:

On December 12th, 2022, the Commission of Small Island States submitted a request for an advisory opinion to the International Tribunal for the Law of the Sea (“Tribunal”). The request was registered as case number 31 in the List of Cases of the Tribunal and is the third advisory opinion ever to be requested from the Tribunal. In its last advisory opinion in 2015, it was especially contentious, whether the full Tribunal even possessed jurisdiction to entertain this request, as none of the jurisdictional provisions in the United Nations Convention for the Law of the Sea (“UNCLOS”) and its annexes expressly stipulate a special advisory competence to this end. While the Tribunal affirmed its jurisdiction, some States argued against this competence, which was supported by a few critical articles in the aftermath.

At this time of the United Nations Ocean Decade, a noticeable upswing of requests for advisory opinions from regional and international judicial bodies is in the air – potentially promising an effective tool to develop and inform the Law of the Sea, if ultimately utilised. Especially in the light of new challenges in environmental law, such as climate change and sea level rise, advisory opinions ought to provide an elegant way for States to seek clarification of legal questions, without needing to threaten one’s political relationships by suing another State. Bearing in mind the special competence of the Tribunal in Law of the Sea matters it surprises, however, that States still aim to address their advisory opinions i.e. regarding sea level rise to the general Court of Justice in The Hague,1 rather than to the specialised Tribunal in Hamburg – despite its previously confirmed advisory jurisdiction. Whether the utilisation of advisory opinions and potential development of the Law of the Sea through the Tribunal will experience a boom, first and foremost depends on elucidating any concerns regarding its jurisdiction. This article thus investigates the debate regarding the Tribunal’s advisory jurisdiction, aiming to facilitate a more progressive approach of invoking the Tribunal’s special competence to contribute to the development of the Law of the Sea matters.

Pearl on Electronic Warrants

Tracy Hresko Pearl (University of Oklahoma College of Law) has posted On Warrants & Waiting: Electronic Warrants and the Fourth Amendment on SSRN.  Here is the abstract:

Police use of electronic warrant (“e-warrant”) technology has increased significantly in recent years. E-warrant technology allows law enforcement to submit, and magistrate judges to review and approve, warrant applications on computers, smartphones, and tablets, often without any direct communication. Police officers report that they favor e-warrants over their traditional counterparts because they save officers a significant amount of time in applying for warrants by eliminating the need to appear in-person before a magistrate. Legal scholars have almost uniformly praised e-warrant technology, as well, arguing that use of these systems will increase the number of warrants issued throughout the United States and decrease police reliance on warrant exceptions, a seemingly ideal outcome given the strong constitutional preference for warrants. However, nearly all of this favorable commentary is premised on the assumptions that (a) convenience is a worthy goal of the criminal justice system, and (b) that more warrants necessarily mean better police work and greater fidelity to the Fourth Amendment, assumptions that quickly wither under careful scrutiny. Indeed, research shows that the inconvenience of the traditional warrant system incentivizes careful police work and disincentivizes the submission of constitutionally dubious warrant applications. E-warrants, however, by prioritizing convenience, upend this system and increase the likelihood that police will submit deficient warrant applications and that magistrates will not carefully review them. Worse, the Fourth Amendment jurisprudence that has arisen around warrants over the last 50 years makes it extremely unlikely that, once issued, these hastily issued e-warrants will be deemed invalid or any resulting evidence suppressed. In short, e-warrants amplify all of the existing problems with the warrant system and exacerbate the imbalance of power between police and citizens. Jurisdictions should sharply curtail police use of e-warrant technology by imposing new restrictions on how and when e-warrant systems can be used, and by imposing real-time conversation and transparency requirements in situations in which e-warrants are deemed preferable over their traditional counterparts.

Forman, Alami, & Fajber on the Human Right to Medicines

Lisa Forman (Dalla Lana School of Public Health, University of Toronto), Basema Alami (University of Toronto - Faculty of Law), Kaitlin Fajber (University of Toronto - Dalla Lana School of Public Health) have posted An Inquiry into State Agreement and Practice on the International Law Status of the Human Right to Medicines ((2022) 24:2 Health Hum. Rights 125) on SSRN.  Here is the abstract:

Global disparities in access to COVID-19 vaccines have brought back into focus questions about whether the right to medicines has assumed any level of binding legality within international law. In this paper, we attempt to answer this question by considering if there is evidence of subsequent state agreement and practice to read the right to medicines into the rights to health and science protected in the International Covenant on Economic, Social and Cultural Rights. We adopt the interpretive framework in the Vienna Convention on the Law of Treaties and the International Law Commission’s 2018 report to analyze the work of the United Nations Committee on Economic, Social, and Cultural Rights relevant to medicines, and its relationship to the content and voting in successive resolutions of the United Nations General Assembly. We find that these resolutions provide some evidence of state agreement that the rights to health and science, as enshrined in the International Covenant on Economic, Social and Cultural Rights, include access to affordable medicines. Yet the legal implications of this right remain highly contested, particularly when it comes to trade-related intellectual property rights. The negotiation of a pandemic treaty offers possibilities for codifying this right beyond these discursive instances, while political opposition remains likely to continue to undercut this emerging legal norm.

Epps & Trammell on Jurisdiction Stripping

Daniel Epps (Washington University in St. Louis - School of Law) & Alan M. Trammell (Washington and Lee University) have posted The False Promise of Jurisdiction Stripping (Columbia Law Review, Forthcoming) on SSRN.  Here is the abstract:

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever the scope of Congress’s Article III power to limit the jurisdiction of the Supreme Court and other federal courts, jurisdiction stripping is unlikely to succeed as a practical strategy. At least beyond the very short term, Congress cannot use it to effectuate policy in the face of judicial opposition. Its consequences are chaotic and unpredictable, courts have tools they can use to push back on jurisdiction strips if they desire, and the active participation of the judiciary is ultimately necessary for Congress to achieve many of its goals. Jurisdiction stripping will often accomplish nothing and sometimes will even exacerbate the very problems it purports to solve.

Jurisdiction stripping can still prove beneficial, but only in subtle and indirect ways. Congress can regulate jurisdiction to manipulate the timing of judicial review—slowing things down or speeding them up—even if it cannot prevent review entirely. Jurisdiction stripping also provides a means for Congress to signal to the public and the judiciary the importance of an issue—and, possibly, to pressure courts to change course. But these effects are contingent, indeterminate, and unreliable. As a tool to influence policy directly, jurisdiction stripping simply is not the power that its proponents hope or its critics fear.

Highly recommended.  Download it while it's hot!

Wurman on the Major Questions Doctrine

Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Importance and Interpretive Questions (Virginia Law Review, forthcoming) on SSRN.  Here is the abstract:

In its past term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach anti-administrativist results. One can explain at least some of the cases, however, in a way that constructs a coherent doctrine in which importance has a significant but narrow role in resolving interpretive questions involving ambiguity or uncertainty. Thus understood, such a doctrine could be defensible, if not as a substantive canon, then as a kind of linguistic canon. Unlike other linguistic canons, such a canon would be about how people and lawmakers use language to accomplish results in a circumscribed range of contexts—namely, the delegation of important authorities, whether to other private actors, to government actors in Constitution, or to government actors in the executive department. But unlike substantive canons, it would not relate to a substantive value encoded in the Constitution or in longstanding tradition. Existing empirical work about how legislators legislate, and insights from the philosophy of language, suggest that such a doctrine may be consistent with textualism, and historical research further reveals that a canon of this type may be a longstanding feature of constitutional, contract, and statutory interpretation in related contexts. More provocatively, these same intuitions about importance may explain some substantive canons that are difficult for textualists to justify.

Highly recommended.

Jacobi & Sag on Supreme Court Oral Argument Interruptions of Female Justices

Tonja Jacobi (Emory University School of Law) & Matthew Sag (Emory University School of Law) has posted Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice (Boston University Law Review, Vol. 103, 2023) on SSRN.  Here is the abstract:

Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices has improved in recent years, and whether the structural change in argument has helped. It shows that interruptions went down during the pandemic but have resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for the first time in years it no longer shows any gender disparity. Thus, the structural change to oral argument has had mixed results.

The problem of gendered interruptions at Supreme Court oral argument has led to calls for the Chief Justice to take a more active role at oral argument. This Article also addresses whether and how Chief Justice Roberts has responded to this call. It shows that the Chief has been intervening more, not in response to the increasing number of interruptions, but in response to the gender disparity growing more severe. Further, he has directed his interventions at supporting those most interrupted, disrupting those making the most interruptions, and, significantly, using his interventions to recognize and combat interruptions of the female Justices. When it comes to interruptions at the Court, the Chief Justice is no longer simply the first among equals but has a new role, as a referee, attempting to address a social and institutional problem.

Auer on a Genealogy of Private Law Methodologies

Marietta Auer (Max Planck Institute for Legal History and Legal Theory) has posted A Genealogy of Private Law Epistemologies (Forthcoming, Thilo Kuntz and Paul B. Miller, eds., Methodology in Private Law Theory (Oxford University Press)) on SSRN.  Here is the abstract:

Which methodology should legal science aspire to if it is to find its own, distinctive character as a science of the law? Is there any genuine legal methodology to cope with the doctrinal riddles of contracts, torts and property? Does the social embeddedness of private law institutions push private law scholarship in the direction of more empirical, especially economic, sociological and historical, research? Or is it, quite to the contrary, more philosophical reasoning on the value foundations of private contracts and property that engenders the essence of private law methodology?

Legal Theory Lexicon: Second Best & Nonideal Theory

Introduction

The post provides a very basic introduction to the idea of "second best." The term "second best" originated in a famous 1956 article by Lipsey and Lancaster (see bibliography below), and it was originally used as a technical economic concept. Despite its technical origins, the idea behind the second best is very general: sometimes the ideal solution to a problem (or "optimal policy option") cannot be achieved. The best should not be the enemy of the good; so, when the first-best policy option is unavailable, then normative legal theorists should consider second-best solutions. In this post, we will take a hard look at the idea of the second best, beginning with a statement of the intuitive idea and then looking at the more formal idea of the second best in its original economic context.

As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

The Intuitive Idea

The intuition behind the idea of the second best is simple. We would like to have the best legal system. But sometimes the best legal policies are not in the cards; that is, the best policy may be impractical. Why? In legal theory, one common reason that we cannot adopt the best policy is politics. Given the political forces that operate, the best campaign finance system may be pie in the sky. So we ask the question, of those systems that might be politically feasible, which is the "second best"?

Although I've introduced the intuitive idea by talking about "political feasibility," the idea of the second best is more general than that. First-best solutions may be unavailable because of a variety of constraints, of which politics is only one. The intuitive idea of the second best is a bit broader and less technical than the way economists define "second best," so let's turn to the technical economic idea of second best now.

The Second Best in Economics

The very general idea of the economic theory of the second best can be expressed as follows:

Assume a system with multiple variables. Take the most desirable state the whole system could assume and the associated values that all of the variables must assume to produce this state: call this condition, the first-best state of the system and call the associated values of the variables, the first-best values. Now assume that one variable will not (or cannot) assume the value necessary for the first-best state of the whole system: call this the constrained variable. Holding the constrained variable constant, consider the most desirable state the whole system could then assume and the associated values that all the nonconstrained variables must assume to produce this state: call this the second-best state of the system. There are systems in which achieving the second-best state will require that at least one variable other than the constrained variable must assume a value other than the first-best value: call these value(s) the second-best value(s).

And here is the way that Lipsey and Lancaster formulated the idea:

[I]f there is introduced into a general equilibrium system a constraint which prevents the attainment of one of the Paretian conditions, the other Paretian conditions, though still attainable, are in general, not desirable.

(If the technical economic term "Paretian" (or "Pareto optimality") is unfamiliar to you, there is an explanation in Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks.)  Lipsey and Lancaster are making a normative (but technical) argument. They assert that if one variable is constrained and cannot assume its first-best value, then "in general" other variables should not assume their first-best values. The "in general" qualification is important. Lipsey and Steiner didn't and couldn't show that it is always (or necessarily) the case that constraint of one variable affects the most desirable value for other variables. Rather, their proof shows that this is possible. In the real world, whether nonconstrained variable should depart from their first-best variables depends entirely on the facts. In fact, if a policymaker lacks certain information about the second-best variables, it may turn out that the real world policy that will produce the best result is to try to move the constrained variable as close as possible to its optimal state, leaving the second-best variables in their first-best states. The possibility was called the "third best" by Ng (see bibliography below).

One or two additional points are necessary to complete the technical story.

First, the definition that I just gave assumes that only one variable is constrained. But there is no reason to limit the theory of the second best in this way, more than one variable may be constrained. In fact, in theory every variable could be constrained: in this limiting case, the second-best state would be the only possible state of the system.

Second, the second best is usually understood as relative to a constrained variable. We could use the phrase "second best" to refer to the second-best state the system could assume if all the variables were unconstrained, but this is not the way that Lipsey and Lancaster used that phrase.

Third, there is an important difference between the way economists understand "second best" and the way the same phrase is understood by noneconomists. What was interesting and powerful about Lipsey and Lancaster's proof is that it produced the counterintuitive result that sometimes when one variable is constrained, the best policy choice will involve moving other variables away from their first-best values.

Although technically, the definition of second best need not be limited to that special situation, that is the interesting result, and the use of the theory of the second best in economics may be limited to the special case. Outside of economics, however, the phrase "second best" tends to be used in a much looser sense. The important thing is not the terminology, but the ideas. To be clear, however, it is useful to explain what you mean by second best!

The Second Best and Nonideal Theory

The idea of the second best that is used by economists is analogous to a distinction made famous by the political philosopher, John Rawls. Rawls distinguished between two ways of approaching political philosophy, ideal and nonideal theory. In ideal theory, we assume compliance with the normative requirements of our theory. Rawls used the phrase "well-ordered society" to refer to the situation that obtains in ideal theory. In a society that is well ordered by Rawls's principles of justice, citizens actually would be guaranteed a fully adequate scheme of basic liberties and the basic structure would actually work to the advantage of the least well off group in society. In nonideal theory, we relax the assumption that the society is well ordered by the principles of justice.

Can you make that very abstract description more concrete?  Yes, here is a really good example. In a society that is well-ordered by Rawls's principles of justice, we might assume that if there are local governmental units, they will comply with the restraints imposed by the freedom of speech. But in the real world, local governments might be more susceptible to political pressure to suppress unpopular speech than would be the central government (i.e. the national government in Washington, D.C., in the case of the United States). So, in the real world of nonideal theory, we might be very considered with constraining the jurisdiction and powers of local governments; whereas, this issue may not even arise in the case of ideal theory.

Pinpointing the Constrained Variable

The notion of the second best and the related idea of nonideal theory get tossed around quite a lot in legal theory, but sometimes these terms are used carelessly or without precision. Whenever you hear or read the term "second best," ask yourself the question, "Which variable is constrained, and why is it constrained?" Because the "second best" is second best relative to a constrained variable, use of the concept of the second best doesn't mean anything unless and until the constrained variable is specified. Moreover, it is sometimes very important to know why the constrained variable is constrained. This is because it is easy to construct an argument for a second-best policy option that uses a double standard with respect to whether variables should be considered to be constrained. Here is a simple example:

Suppose our problem is racial justice with respect to the distribution of income and resources. Someone might make the case for reparations (a one time payment of a compensatory amount to descendents of the former slaves) on the ground that reparations are the second-best solution. The first-best solution would be a just economic order in which market mechanisms operate in a nondiscriminatory fashion to allocate income and wealth according to just criteria. (For this purpose, we don't need to specify what the just criteria are.) But the first-best solution is unavailable, because a just economic order is politically infeasible. Therefore, we ought to support reparations, which is the second-best policy.

So far, so good. But notice that there is a hidden assumption in this argument. The argument assumes that reparations are politically feasible. If this assumption is incorrect (which it may well be as an empirical matter), then it follows that the argument for reparations as the preferred second-best solution is fallacious. Of course, one can deploy double standards with respect to which variables are constrained (or which options are infeasible) so long as the double standard is made clear. But when the double standard is concealed and the argument is made in the context of policy evaluation, then we have a problem.  And even a transparent double standard is problematic: why should feasibility be treated differently for one option than another?

The Feasible Choice Set

Another way of approaching the general problem revealed by the theory of the second best is via the notion of the feasible choice set. Take all of the possible legal policy options with respect to a particular legal problem. Then lay out a set of well-defined criteria for feasibility. Apply the criteria to the set, sorting the options into the feasible choice set and the infeasible choice set. Practical policy discussion will usually be limited to the options within the feasible choice set, but legal theory is not limited to the practical. Frequently we can learn something important by considering options that are outside the feasible choice set. For example, a rule of strict liability might turn out to be the optimal rule of tort law. It could also turn out that strict liability regimes are politically infeasible--perhaps because the fault-based social norms are very strongly held. But that fact should not preclude legal theorists from examining the merits of strict liability regimes. Not only may such an examination be of intrinsic interest, but the insights gleaned from such an examination may well assist in the evaluation of the options that are within the feasible choice set.

The Bottom Line

The notion of the second best, the distinction between ideal and nonideal theory, and the idea of the feasible choice set, are all essential tools for a legal theorist. As a first year student, you are likely to encounter these ideas in classroom discussion or in law review articles assigned as ancillary reading. The trick to mastering these concepts and using them effectively is to identify the constrained variable (or the nonideal conditions). Once you've done that, you can move to the next step, which is the question, "What criteria are used to identify the constrained variables?" And if you can answer that question, you are now in a position to respond in an intelligent and sophisticated way to applications of the theory of the second best!

Bibliography

• R.G. Lipsey & Kelvin Lancaster, The General Theory of the Second Best, 24 REV. ECON. STUD. 11 (1956).  Reprinted in Readings in Social Welfare: Theory and Policy  (Hoboken: Wiley-Blackwell, Robert E. Kuenne ed. 2000).
• Richard G. Lipsey, Reflections on the General Theory of the Second Best at Its Golden Jubilee,  14 International Tax and Public Finance 349 (2007).
• Ng Yew-Kwang, Welfare Economics: Towards a More Complete Analysis  (London: Macmillan, 1983).
• Karla Hoff, Second and Third Best Theories (pdf file).
• Lawrence B. Solum, Constitutional Possibilities (2007).
• Eric Posner & Adrian Vermeule,  Inside or Outside the System? (2013).
• Jacob Levy, There is No Such Thing as Ideal Theory (2014).
• Laura Valentini, Ideal vs. Non‐ideal Theory: A Conceptual Map, Philosophy Compass (2012).

Resources on the Internet

• Steven M. Suranovic, The Theory of the Second Best, International Trade Theory and Policy (2009). 

Related Lexicon Entries

• Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks
• Legal Theory Lexicon 062: Path Dependency
• Legal Theory Lexicon 064: Possibility and Necessity

(This entry was last updated on March 12, 2023.)