Legal Theory Blog

Leblond on Federalism and Digital Trade in Canada

Patrick Leblond (University of Ottawa; Center for Interuniversity Research and Analysis on Organization (CIRANO)) has posted Federalism and Digital Trade (Research Handbook on Digital Trade, edited by David Collins and Michael Geist, Edward Elgar, 2023) on SSRN.  Here is the abstract:

Policy actions at the subnational level can affect digital trade. For instance, privacy or data protection laws adopted by Canadian provinces or states in the United States could limit digital trade in some cases. Another possibility is the imposition of data localization requirements in public procurement undertaken by subnational governments. Hence, federalism and multilevel governance matters for digital trade. Yet, this is an area of research that has been neglected so far by scholars of digital trade. This chapter is a first attempt to understand how federalism affects international digital trade. It does so by examining the relationship between federalism and digital trade in Canada and the United States, focusing on policies adopted by subnational governments that affect digital trade. It then analyses how digital trade provisions in the United States-Mexico-Canada Agreement (USMCA) – as it applies to both Canada and the US – impose constraints on subnational governments’ ability to adopt policy measures that could impede cross-border digital trade.

Citron on Privacy

Danielle Keats Citron (University of Virginia School of Law) has posted A More Perfect Privacy (Boston University Law Review, Forthcoming) on SSRN.  Here is the abstract:

Fifty years ago, federal and state lawmakers called for the regulation of a criminal justice “databank” connecting federal, state, and local agencies. There was bipartisan concern that the system imperiled constitutional commitments and people’s crucial life opportunities, including jobs, education, housing, and licenses. Bipartisan congressional concerns of the 1970s should be cause for re-invigoration, not resignation. Recounting the insights of members of the 93rd and 94th Congresses should embolden us. Their concerns clarify the headwinds that reformers face. Then, as now, powerful interests want us to think that privacy and public safety are incompatible. They want us to view diminished expectations of privacy as acceptable, even valuable. Revisiting this history should remind the public that totalizing surveillance is neither acceptable nor desirable. Privacy can and should be ours.

Highly recommended.

Psygkas on Administratie Democracy and Federalism

Athanasios Psygkas (Western University - Faculty of Law; Yale University - Law School) has posted Administrative Democracy and Federalism (Public Administration and Expertise in Democratic Governments: Comparative Public Law in the Twenty-First Century (Routledge, Forthcoming)) on SSRN.  Here is the abstract:

This chapter connects two themes in Susan Rose-Ackerman’s seminal contributions to comparative public law and political economy: public participation in administrative policy-making (“administrative democracy”) and federalism. It puts forward an ideal type of federal-state interaction that can lead to the development of effective administrative democracy. This scheme consists of feedback loops, whereby the center may adopt a particular accountability mechanism, potentially in the form of a minimum standard, that it can impose on the periphery or indirectly influence the periphery to adopt. The component entities of the federal system “download” this minimum standard and are free to move beyond it and to experiment with procedural modes that operationalize it and may enhance democratic accountability in the periphery. The emphasis in this scheme is on procedural innovation instead of substantive policy innovation. Some of these good practices might be subsequently “uploaded” onto the center and be generalized or spread across state borders. The chapter explores how this hypothesis plays out in three examples of federal or decentralized systems – the United States, the European Union, and Canada – which illustrate different aspects of these feedback loops and the interactions between federalism and administrative democracy.

Mühlhoff & Ruschemeier on Democratizing AI

Rainer Mühlhoff (University of Osnabrück) & Hannah Ruschemeier (University of Hagen - Department of Law) have posted Democratising AI via Purpose Limitation for Models (AI for People Conference Proceedings - forthcoming) on SSRN.  Here is the abstract:

This paper proposes the concept of purpose limitation for models as an approach to democratising AI via effective regulation. We aim to define the purposes of machine learning models built for predictive analytics and generative AI in democratic processes. Unregulated (secondary) use of specific models creates immense individual and societal risks, including discrimination against individuals or groups, infringement of fundamental rights, or distortion of democracy through misinformation. We argue that possession of trained models, which in many cases consist of anonymous data (even if the training data contains personal data), is at the core of an increasing asymmetry of informational power between data companies and society. Combining ethical and legal aspects in our interdisciplinary approach, we identify the trained model as the object of regulatory intervention instead of the training data. This altered focus adds to existing data protection laws and the proposed Artificial Intelligence Act, which are inefficient in preventing the misuse of trained models due to their focus on the procedural aspects of personal data or training data. By enabling the concept of risk prevention law and the principle of proportionality, we argue that the potential use of trained models in ways that are damaging to society by powerful actors warrants preventive regulatory interventions. Thus, we seek to balance the asymmetry of power by enabling democratic control of where and how predictive and generative AI capabilities may be used by identifying beneficial purposes.

Celislami, Kastoryano, & Mastrobuoni on Strategic Opacity and Police Killings

Elda Celislami (University of Reading), Stephen Kastoryano (University of Reading), & Giovanni Mastrobuoni (University of Turin - Collegio Carlo Alberto; Centre for Economic Policy Research (CEPR); IZA) have posted Strategic Bureaucratic Opacity: Evidence from Death Investigation Laws and Police Killings on SSRN.  Here is the abstract:

Police accountability is essential to uphold the social contract. Monitoring the monitors is, however, not without difficulty. This paper reveals how police departments exploit specific laws surrounding death investigations to facilitate the underreporting of police killings. Our results show that US counties in which law enforcement can certify the cause of death, including counties which appoint the sheriff as the lead death investigator, display 46% more underreported police killings than their comparable adjacent counties. Drawing on a novel adapted-LATE potential outcomes framework, we demonstrate that underreported police killings are most often reclassified as 'circumstances undetermined' homicides. We also show that law enforcement agencies in counties with permissive death certification laws withhold more homicide reports from the public. The main underreporting results are primarily driven by underreporting of White and Hispanic deaths in our analysis sample, with the effect on Hispanic people particularly pronounced along the US-Mexico border. We do not find that excess underreported killings are associated with more violence directed towards police. We do, however, note a nationwide positive correlation between the permissiveness of gun-laws and underreported police killings. In addition, we find more underreporting in counties which have both high per-capita Google searches for Black Lives Matter and which allow law enforcement to certify the cause of death. Our results do not indicate that other differences in death investigation systems - coroner vs. medical examiner, appointed vs. elected, or physician vs. non-physician - affect the underreporting of police killings.

Choi & Ferrara on Large Language Models & Fact Checking

Eun Cheol Choi (University of Southern California, Annenberg School for Communication, Students) & Emilio Ferrara (University of Southern California - Information Sciences Institute) has posted Automated Claim Matching with Large Language Models: Empowering Fact-Checkers in the Fight Against Misinformation on SSRN.  Here is the abstract:

In today's digital era, the rapid spread of misinformation poses threats to public well-being and societal trust. As online misinformation proliferates, manual verification by fact checkers becomes increasingly challenging. We introduce FACT-GPT (Fact-checking Augmentation with Claim matching Task-oriented Generative Pre-trained Transformer), a framework designed to automate the claim matching phase of fact-checking using Large Language Models (LLMs). This framework identifies new social media content that either supports or contradicts claims previously debunked by fact-checkers. Our approach employs GPT-4 to generate a labeled dataset consisting of simulated social media posts. This data set serves as a training ground for fine-tuning more specialized LLMs. We evaluated FACT-GPT on an extensive dataset of social media content related to public health. The results indicate that our fine-tuned LLMs rival the performance of larger pre-trained LLMs in claim matching tasks, aligning closely with human annotations. This study achieves three key milestones: it provides an automated framework for enhanced fact-checking; demonstrates the potential of LLMs to complement human expertise; offers public resources, including datasets and models, to further research and applications in the fact-checking domain.

Dench, Pineda-Torres, & Myers on Dobbs and Fertility

Daniel Dench (Georgia Institute of Technology), Mayra Pineda-Torres (Georgia Institute of Technology), & Caitlin Knowles Myers (Middlebury College; IZA Institute of Labor Economics) have posted The Effects of the Dobbs Decision on Fertility on SSRN.  Here is the abstract:

The U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization sparked the most profound transformation of the landscape of abortion access in 50 years. We provide the first estimates of the effects of this decision on fertility using a pre-registered synthetic difference-in-differences design applied to newly released provisional natality data for the first half of 2023. The results indicate that states with abortion bans experienced an average increase in births of 2.3 percent relative to states where abortion was not restricted.

Wright on Private Party Investigations and Corporate Wrongdoing

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Slightly More Than Two Cheers For Sneaky Private Investigations Into Questionable Business Operations on SSRN.  Here is the abstract:

Journalists and interest groups often investigate, more or less clandestinely, the business practices of a particular corporate enterprise. Their aim in doing so is to document and graphically publicize illegal or controversial such practices. How the criminal and civil law should respond to such undercover investigations is the focus of the inquiry below.

Ultimately, three full-throated cheers for such private-party investigations is excessive. The investigations in question may, in some cases, run up against, merely for example, limits set by valuable personal privacy rights. A mere two cheers response, however, is insufficient. The free speech-related and other public interest value of such investigations is collectively too great for only two cheers. Two and a half cheers may then seem an apt accommodation of the conflicting interests at stake. Herein, though, a slight muting of the two and a half cheers is endorsed. This final adjustment is strategically intended to encourage investigators to minimize any unnecessary harms caused by their valuable investigation and reporting in the public interest.

Grewal on the Whether the Mandatory Repatriation Tax is a 16th Amendment "Tax"

Andy Grewal (University of Iowa - College of Law) has posted The Mandatory Repatriation Tax Is Not a Tax on SSRN.  Here is the abstract:

In Moore v. United States, the Supreme Court has agreed to address whether the Sixteenth Amendment allows Congress to tax unrealized sums. The case arises over Section 965(a). Under that section, taxpayers with substantial equity interests in a foreign corporation must immediately include in income their shares of the corporation’s accumulated earnings. The parties and commentators frequently say that Section 965(a) establishes a “Mandatory Repatriation Tax.”

This amicus brief makes a subtle but critical point: Section 965(a) does not establish a tax. It requires only an income inclusion. The Sixteenth Amendment should apply flexibly when Congress adds an income item to the tax base, even if that item allegedly violates the realization requirement.

Mańko on Resisting Illiberal Legality

Rafał Mańko (Central European University, Democracy Institute) has posted Exceptio Popularis: Resisting Illiberal Legality (forthcoming in "Law, Populism and the Political in Central and Eastern Europe", edited by Rafał Mańko et al., Birkbeck Law Press (Routledge), 2024) on SSRN.  Here is the abstract:

On 22 October 2020 the Polish Consitutional Court (PCC), dominated by the conservative appointees of the ruling Law and Justice party, issued a landmark decision outlawing embryopathological abortion. For a judgment of the PCC to enter into force, it must be published in the Journal of Laws, and it is up to the Prime Minister to decide on the date. This power, initially conceived of as a purely technical act, has grown, under the rule of Law and Justice, into a de facto form of super-review of the executive over the PCC, a power used already in 2016. What is more, the decision to suspend the publication of the controversial judgment was even officially justified by the mass protests taking place in the cities and towns across Poland. Thus, the Prime Minister openly confessed that he decided to use his power of delaying the publication in order to give in to popular unrest. In order to explain what happened, the chapter – drawing on Benjamin, Schmitt and Agamben – puts forward the novel concept of exceptio popularis or the minor state of exception, defined as a situation in which the constituted power, under pressure from the people amounting to a tumultus (such as exerted through strikes or other forms of protest) suspends the operation of a certain legal norm which is the object of the people’s unrest. The “minor” state of exception is one in which the dialectics of power and subjection are somewhat reversed: it is the people which demands the suspension or abolition of the rule, and the constituted power gives in (for some time) to that popular demand.

Legal Theory Lexicon: Distributive Justice

Introduction

Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at "risk spreading"? Should the Equal Protection Clause of the United States Constitution be read as guarantee of the equal distribution of rights or resources? In order to answer these and similar questions, we need to have some account of distributive justice? What makes the distribution of liberties, income, and wealth fair? Should the law aim at equality? And if it should, what sort of equality?

This entry in the Legal Theory Lexicon will provide a brief introduction to distributive justice. As always, the Lexicon is aimed at law students (especially first-year law students) with an interest in legal theory.

Context

A prior entry in the Lexicon provided a brief overview of the idea of Justice. (Legal Theory Lexicon 018: Justice) In that entry, we divided the general topic of justice into four parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. Corrective justice is concerned with the righting of wrongs: so, in criminal law, we might be concerned with punishing crimes, and in tort law, we could focus on the rectification of wrongfully inflicted harms. Political justice is concerned with issues such as voting rights, democracy, legitimacy, and authority. Procedural justice addresses questions about the fairness of civil and criminal proceedings. Our topic today is distributive justice. As a rough and ready starting point, let's say that distributive justice addresses questions about the distribution or allocation of liberties, wealth, and income. As we shall see, one of the major debates about distributive justice will call this rough and ready starting point into question, because "liberties, wealth, and income" may be the wrong target for theories of distributive justice. But let's put that concern aside for now.

Rawls's Theory of Distributive Justice: Justice as Fairness

Discussions of distributive justice usually start with the work of John Rawls--the most influential political philosopher of the 20th century. It really isn't possible to do justice to Rawls's theory in a paragraph or two, but I'm going to try.

Let's start with the historical roots of Rawls's theory. Rawls saw his theory as an extension of the social contract tradition--associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Traditional social contract theory posits a state of nature--in which there is no government--and then asks what would be the content of a social contract--an agreement to enter civil society. If we assume that the state of nature and the social contract are hypothetical (not actual), we can then ask the question: is an agreement reached in the state of nature fair? The answer to this question might be, "No, a social contract reached in the state of nature would not be fair, because it would favor those who are advantaged by the conditions of the state of nature, e.g. the strong, the smart, and the powerful." Rawls attempted to correct that problem with classical social contract theory by positing what he called the "original position." In the original position, the parties are to agree on principles of justice to govern the basic structure of society. Unlike the state of nature, however, the original position includes a "veil of ignorance," which prevents the parties from knowing the specific characteristics of those whom they represent.

Rawls argues that the parties to the original position would choose two principles of distributive justice:

1. The Equal Liberty Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

2. The Difference Principle: Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society.

The first principle has priority over the second in cases of conflict.

In this very short introduction, we won't try to recreate the reasoning that would lead the parties to the original position to adopt the two principles. The basic idea of Rawls's argument is that the parties behind the veil of ignorance would have to take into account the possibility that they represent the least fortunate members of society. To protect the interest of those who are worst off, they would first make sure that everyone's basic rights--liberty of conscience, freedom of speech, due process--were protected: that is the role of the equal liberty principle. Then, the parties in the original position would attempt to make sure that wealth and income (and other basic goods) were were distributed so as to make the worst-off members of society as well off as they could be made: that is the role of the difference principle.

Rival Approaches to Distributive Justice

What are the alternatives to justice as fairness? Let's take a quick look at four rivals to Justice as Fairness: (1) utilitarianism, (2) egalitarianism (or "strict equality"), (3) desert, and (4) libertarianism.

Utilitarianism--Classical utilitarianism suggests that we should maximize the sum total of utility--Jeremy Bentham's slogan was "the greatest good for the greatest number." For classical utilitarians, the distribution of goods and resources doesn't matter in and of itself. What matters is how much good can be produced, not how it is distributed. This does not mean, however, that utilitarians do not care about the distribution of wealth and income. For example, a utilitarian might argue that wealth and income have "diminishing marginal utility." That is, the first $1000 of income is very important--it allows you to buy essentials like food and shelter. But the difference between $100,000 and $101,000 may be very minor--it allows you to buy a nicer car. Therefore, the utilitarian might argue that egalitarian distributions of resources will tend to increase total welfare--unless there is some countervailing reason such as increased incentives to produce useful goods and services that might result from unequal distributions of wealth and income.

Utilitarians are frequently criticized on the ground that they lack a principled objection to gross inequalities. Suppose, for example, that the total welfare of society could be improved by enslaving a small group. If this were the case, then utilitarians would be committed to the consequence that such slavery is "just" or "good," but this seems counter intuitive. Utilitarians can reply to this point in many ways, but one argument is that, in fact, slavery does not increase total utility, but actually is quite harmful. Critics are likely to say that this may usually be the case, but that utilitarianism falters on the exceptional cases where gross inequalities lead to net welfare gains. Of course, the argument can be extended by both sides, but you get the general idea.

Utilitarians are likely to object to Rawls's second principle--the difference principle--on the ground that it requires that we pay a huge penalty in total welfare to produce a small benefit for those who are least advantaged. For example, suppose that the average income could be increased by $10,000 per year if the income of the worst-off group were decreased by $10 per year. Utilitarians argue that it is wrong to deprive a large group of a very substantial amount of income in order to preserve a small amount of income for a small group. Once again, the arguments will go back and forth, but you can see how the issue is framed.

Egalitarianism--Another rival of justice as fairness is "strict egalitarianism." The difference principle permits inequalities of wealth and income if those inequalities benefit the worst-off group in society. For example, it it could be shown that private ownership of capital was required to produced economic growth that benefits even the poorest members of society, the difference principle might allow Bill Gates to accumulate billions of dollars while the poorest members of society subsisted on a tiny fraction of that. Strict egalitarians maintain that distributive justice requires that each person recieve the same share--even if the consequence is that everyone (including the worst-off) gets less than they could if inequalities were permitted.

It is very important to understand that egalitarianism comes in many forms--because egalitarians have different answers to the "Equality of what?" question--which we will cover below.

Desert--Yet another view of distributive justice would link distributive shares with desert or deservingness. In a very broad sense, one might say that all theories of distributive justice are desert-based. Egalitarian theories simply say that everyone deserves the same share. Fair enough! But I want to focus on a special kind of desert-based theory--one that focuses on merit or effort or some other quality as the basis for desert. For example, one might believe that wealth and income ought to be distributed in proportion to social contribution. If I work hard and create valuable goods or services, then I deserve a greater share of wealth and income, as compared with someone who makes a lessor contribution.

This kind of desert-based theory is quite different from justice as fairness, utilitarianism, or egalitarianism. This difference could be expressed in one of two ways. We might say that these other theories have a different conception of desert: for example, egalitarians may believe that each person is equally deserve of resources. Or we might say that the other theories deny the relevance of deserve; for example, egalitarians may believe that contribution-based desert is morally irrelevant.

Libertarianism--Libertarianism represents another approach to distributive justice. On the one hand, libertarians are likely to endorse some version of what Rawls called the equal liberty principle. That is, libertarians are likely to believe that each individual should have an equal right to basic liberties (or autonomy). On the other hand, most libertarians reject that the idea that there should be any principles that govern the distribution of resources. For libertarians, the distribution of wealth and income flows from the free choices made by individuals. That might result in relatively equal distribution of wealth and income, or it might result in massive inequalities. For the libertarian what matters is whether the transactions or transfers are themselves just. If I freely choose to sell you Whiteacre, and I gamble away the proceeds while you grow rich, then the resulting inequality is just because it result from voluntary transactions.

In a sense, then, libertarians reject the idea of "distributive justice" as applied to the distribution of wealth and income. At the same time, however, libertarians tend to be strict egalitarians when it comes to the distribution of basic liberty rights, because most libertarians believe that the basic liberties (freedom of conscience, self-ownership) cannot themselves be alienated.  So libertarianism can be described as a form of egalitarianism--where the it is liberty that must be equally distributed.

Social Justice

Another set of rivals to Rawls's theory can be grouped together under the heading "Social Justice."  One of the main criticisms of Rawls's A Theory of Justice was its neglect of topics like race, sex, gender identity, sexual orientation, and disability.  A social justice approach to distributive justice can be defined as a theory that explicitly incorporates the concept of historically disadvantaged groups into the idea of distributive justice.  By itself, such incorporation does not fully define an approach.  Social justice theories must specify some answer to the equality of what question in order to provide concrete guidance.  That question is our next topic.

The Equality-of-What Debate

One of the most interesting debates in contemporary political philosphy has been a debate among egalitarians about the proper subject of equality. Suppose you are an egalitarian. You believe that each person should recieve an equal share of whatever is truly valuable. The question is: what is it that should be divided equally?

One possibility is "wealth and income." That is, we might believe that each person should be entitled to the same annual income. That answer becomes problematic, however, because different persons have different needs. Suppose that strict equality of income would produce a share of $20,000 per person per year. You are young and in good health, and can do quite well on that sum. I am elderly and in poor health; $20,000 per year will not even pay for the medical care necessary to sustain my life.

Here is another possibility. We might aim for equality of "welfare." Of course, we would need to define welfare, and that's a tough job. Let's assume that welfare is a subjective state, produced by the satisfaction of preferences. Equality of welfare might require substantial disparities in the distribution of resources. Those who are ill or developmentally disable might require a larger share of resources to produce an equal share of welfare. Even that might be problematic. For example, those with really severe needs might require enormous resources--the possibility of very expensive high technology medicine has highlighted this possibility.

There is, however, another problem with equality of welfare. Suppose that you have simple tastes, and I have expensive tastes. You are happy with a modest house, simple food, and vacationing in the countryside. For me to achieve the same welfare level, I need a personal Gourmet chef, the finest wines and caviar, a mansion, and vacations at the Ritz in Paris. It seems quite odd to say that distributive justice requires that I get more resources than you, simply because my tastes are more expensive than yours.

I think you can already see how interesting and exciting the equality-of-what debate can be. Let me just mention some additional moves, and then stop. Another step would be to introduce the idea of equal opportunity. Thus, we might decide that it is not "equality of welfare" but "equality of opportunity for welfare" that should be the criterion for distributive justice. Another important theory, associated with the economist Amartya Sen focuses on the "capacities for valuable functionings" as the subject of equality.

Conclusion

This is another Lexicon entry that is both too long and too short. Too long because it is a bit much to swallow in one quick read, but too short because the topic of distributive justice requires many multiples of the words devoted to it here--for even a short treatment. Nonetheless, I hope I have provided enough of an introduction to get you thinking!

I've included a short bibliography and some links to other resources on the Internet!  

Related Lexicon Entries

• Legal Theory Lexicon 018: Justice
• Legal Theory Lexicon 048: Libertarian Theories of Law
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

Bibliography

• Ackerman, Bruce, Social Justice in the Liberal State (1980)
• G.A. Cohen, Rescuing Justice and Equality (2008)
• John Locke, Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought) (1988)
• Robert Nozick, Anarchy, State, & Utopia (1974)
• John Rawls, Justice as Fairness: A Restatement (2001)
• John Rawls, A Theory of Justice (1971)
• Jean-Jacques Rousseau, 'The Social Contract' and Other Later Political Writings (Cambridge Texts in the History of Political Thought) (1997)

Resources on the Internet

• Fred D'Agostino, Contemporary Approaches to the Social Contract, Stanford Encyclopedia of Philosophy
• Ann Cudd, Contractarianism, Stanford Encyclopedia of Philosophy
• Julian Lamont, Distributive Justice, Stanford Encyclopedia of Philosophy
• Fred D'Agostino, Original Position, Stanford Encyclopedia of Philosophy
• Amartya Sen, Equality of What (PDF)

 

(This entry was last revised on November 26, 2023.)

Legal Theory Bookworm: "Public Nuisance" by Mullenix

The Legal Theory Bookworm recommends Public Nuisance by Linda S. Mullenix.  Here is a description:

In Public Nuisance, Linda Mullenix describes the landscape of 21st century mass tort litigation involving public harms – including lead paint, opioids, firearms, e-cigarettes, climate change, and environmental pollution – and the novel theory of public nuisance that lawyers and local governments have used to receive compensation from those who have created public nuisances. The book surveys conflicting judicial decisions rooted in common law and statutory interpretation and evaluates the competing arguments for and against the expansion of public nuisance law. Mullenix argues that that the development of public nuisance theory is part of the historical arc of mass tort litigation and suggests a middle approach to new public nuisance law, namely that we should embrace the common law and legislated public nuisance statutes.

And from the reviews:

‘Professor Linda Mullenix tells a compelling historical tale of the ‘new’ public nuisance law, tracing its beginnings in asbestos mass tort litigation to its current form in modern multi-district litigations over lead paint, opioids, firearms, and e-cigarettes. In an area rife with ideological disagreement, Mullenix cuts through the controversies and sets forth a well-reasoned ‘middle-ground’ approach, one that deftly combines the adaptive common law approach with statutory enactments grounded in democratic theory.’ Catherine M. Sharkey, Segal Family Professor of Regulatory Law and Policy, New York University School of Law; author of Public Nuisance as Modern Business Tort (70 DePaul Law Review 431 [2021])

‘A timely analysis of arguably the most significant development in tort law in recent years: the expansion of public nuisance doctrine to address a wide variety of mass claims, from opioids to guns to climate change. Texas Law Professor Linda Mullenix, whose scholarship encompasses both traditional doctrinal analysis and reports of developments ‘on the ground,’ turns her attention to the emergence of public nuisance doctrine as a tool for securing remediation and compensation for individuals, governments, and the public for harms stemming (primarily) from corporate actions. Deploying historical legal scholarship and contemporary case studies, Mullenix identifies the challenges the new litigation presents to trial and appellate courts, public attorneys general, and private entrepreneurial lawyers. An excellent resource for practitioners and jurists as well as law faculty teaching advanced courses in civil procedure and complex litigation.’ Deborah R. Hensler, Judge John W. Ford Professor of Dispute Resolution, Stanford Law School

‘This is a perceptive and insightful book about perhaps the most rapidly growing issue of complex litigation facing us today, written by THE national expert in the subject. It should become the Bible for anyone who toils in the exciting but frustrating field of public nuisance litigation.’ Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University Pritzker School of Law; author of Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit

‘Linda Mullenix’s Public Nuisance: The New Mass Tort Frontier is a must-read book for anyone interested in or practicing law in the tort field. The book traces the historical evolution of the concept of public nuisance and focuses on the expansion of public nuisance in a number of leading litigations, including lead paint, opioids, firearms, e-cigarettes, and climate change. It is both a scholarly and practical analysis of the implications of public nuisance claims today and in the future.’ Sheila Birnbaum, Co-leader of the Products Liability and Mass Tort Group, Dechert LLP

‘This is an essential, insightful, and engaging account of the rediscovery and development of public nuisance in American litigation. Don’t miss it!’ Elizabeth Cabraser, Lieff, Cabraser, Heimann & Bernstein, Executive Committee and Plaintiffs’ Lead Negotiator, National Opiate Litigation; Executive Editor, The Law of Class Action: Fifty-State Survey 2023 (American Bar Association Class Action & Derivative Suits Committee)

Download of the Week: "The Specter of Indian Removal" by Allread

The Download of the Week is The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law by W. Tanner Allread.  Here is the abstract:

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.

This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.

This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism arguments.

Highly recommended.

Okafor on NFTs and Trademarks

Rita Okafor (Fordham University) has posted NFTs as a medium for Trademark Infringement on SSRN.  Here is the abstract:

Non-fungible tokens (NFTs), like most new technologies, have taken the world by storm. Over the last two years, several record-breaking transactions have been executed through NFTs. Millions of people worldwide have participated in creating, minting, and trading NFTs on the blockchain. While the rest of the world struggles to understand what these tokens are and why others are paying millions of dollars to own them. A large percentage of the buzz around this technology has been attributed to the fear of missing out (FOMO) because no one wants to be late to the party. Various Intellectual Property legal issues have emerged amid the rush and thrill associated with this technology.

This paper analyzes trademark infringement in the metaverse using NFTs and proffers possible solutions and alternatives to infringement for NFT creators who desire to mint and trade NFTs while enjoying the goodwill and reputation of a trademark owner.

Taylor on the Effects of Increasing Access to Justice in Columbia

Whitney K. Taylor (San Francisco State University) has posted The Paradoxical Effects of Increased Access to Justice on SSRN.  Here is the abstract:

This paper tackles an intentionally provocative question: is there such thing as too much access to justice? Conventional wisdom suggests that barriers to access to justice ought to be low. Countless reform efforts put in place throughout the world have sought to increase access to justice and strengthen judicial institutions. What happens when access to these institutions is increased? Who takes advantage of that access? Who is left behind? This paper shows how lowering material barriers to access to justice can have paradoxical effects, (1) handcuffing judges, (2) incentivizing claim-making on some issues while inhibiting claim-making on others, and (3) reinforcing existing inequalities. Turning to in-depth interviews and descriptive statistics, this paper explores the effects of a radical experiment in increasing access to justice in Colombia, the introduction of the acción de tutela.

Roston, Maire, Seiger, & Heller on Financial Institutions and Decarbonization

Marc Roston (Stanford University - Precourt Institute for Energy), Julien Maire (Stanford University - Precourt Institute for Energy), Alicia Seiger (Stanford University - Steyer-Taylor Center for Energy Policy and Finance; Stanford Sustainable Finance Initiative), & Thomas C. Heller (Stanford Law School) have posted Pathways Versus Incentives: Climate Activism to Climate Outcomes on SSRN>  Here is the abstract:

Climate activists have pressured financial institutions to accelerate global decarbonization by aligning portfolios with Paris Agreement transition pathways and targets. We trace the progression from IPCC scenarios to corporate target setting via the Science-Based Targets Initiative (SBTi) and financial institutions’ portfolio alignment methods. We identify four critical weaknesses: flawed GHG Protocol emissions counting rather than accounting, reliance on centrally-planned pathways, implicit divestment-driven approaches, and tension with fiduciary duties. These issues undermine the theory of change behind activist and financial sector efforts. As an alternative, we propose Emissions Liability Management (ELM) which treats emissions as liabilities matched by removal assets, enabling firms to maintain emissions solvency. Rathaer than chasing pathways, ELM provides incentives for emissions reductions and removals consistent with shareholder obligations. By reframing climate action in financial terms, ELM can engage financial markets as agents of change.

Very interesting and recommended.

Koppelman on Interpreting Constitutional Provisions Addressing Specific Historical Evils

Andrew Koppelman (Northwestern University School of Law) has posted Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment (Wayne Law Review, Forthcoming) on SSRN.  Here is the abstract:

Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong.

The description will inevitably be shaped by the values of the interpreter. Every historical episode is susceptible to multiple interpretations, depending on which aspects the interpreter deems salient. One danger, which happened in the past and is happening again, is that an interpreter who is untroubled by some aspects of the historical evil may improperly narrow its scope by deeming those aspects outside the prohibition.

I illustrate this by focusing on two constitutional provisions, the Thirteenth Amendment’s prohibition of slavery and the First Amendment’s prohibition of establishments of religion. Each has been subjected to narrowing constructions, which focus on uncontroversial aspects of the historical wrong and then assert without further argument that they exhaust the provision’s coverage.

The most recent instance of this maneuver is Justice Gorsuch’s reformulation of Establishment Clause law, cited with approval in his opinion for the Court in Kennedy v. Bremerton, which would allow previously impermissible public endorsements of specific religious beliefs. His interpretive strategy is the same one that the Court used to restrict the scope of the Thirteenth Amendment in the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States.

Important work.  Highly recommended.

I would like to note a minor disagreement.  Koppelman writes:

The language of the Fourteenth Amendment’s text, however, standing alone, could support a judicial opinion upholding, say, a statute requiring all and only blacks to be employed as servants or laborers, by applying rationality review. That would obviously be an interpretive travesty.

I found this passage puzzling for two reasons.  First, the Privileges or Immunities Clause as understood by most originalist scholars does prohibit the kind of statute Koppelman imagines, which denies a basic right (to engage in a lawful profession) to citizens.  The passage seems to assume a strange mixture of a modern living constitutionalist approach to the 14th Amendment (rationality review) with an unspecified form of textualism.  Second, so far as I can tell, no one thinks that textualism means consideration of the text standing alone (that is, without consideration of context).

The idea that I think is important is the notion that interpretation should focus on paradigm cases.  Although I am not convinced by Koppelman's argument, this position is interesting both theoretically and for its practical implications.

Roth & Yale-Loehr on Due Process, Noncitizens, and Crimmigration Cases

Josh Roth (Cornell Law School) & Stephen Yale-Loehr (Cornell University - Law School) have posted Dismantling the Due Process Dichotomy in Crimmigration Cases (56 Cornell Int'l L.J. (forthcoming 2024)) on SSRN.  Here is the abstract:

The U.S. Constitution entitles every person to due process. But nearly fifty years ago, the Supreme Court distinguished the due process entitlement of noncitizens from that of citizens. This Article takes a novel approach to due process for noncitizens in certain so-called “crimmigration” cases by further distinguishing the citizen-noncitizen dichotomy. The Article argues that, as applied to lawful permanent residents, certain provisions of the Immigration and Nationality Act are unconstitutional. The article proceeds in three parts.

Part I summarizes the existing caselaw regarding due process for noncitizens. Part II explores two aspects of crimmigration law: immigration fraud and terrorism. This Part conducts a comparative analysis of the various statutes that penalize fraud and terrorism in the immigration and criminal codes. Part III employs the Mathews v. Eldridge balancing test and argues that in immigration fraud and terrorism cases, lawful permanent residents are entitled to additional procedural safeguards to remedy identified due process violations. This Part then formulates distinct procedural safeguards for lawful permanent residents in crimmigration cases involving fraud and terrorism.

Recommended.

Ablamskyi et al on the International Criminal Court and War Crimes in Ukraine

Serhii Ablamskyi (Kharkiv National University of Internal Affairs), Denakpon L. R. Tchobo (Case Western Reserve University School of Law), Vitalii Romaniuk (Kharkiv National University of Internal Affairs), Goran Šimić (University "VITEZ"), & Nadiya Ilchyshyn (Eighth Administrative Court of Appeal (Ukraine)) have posted Assessing the Responsibilities of the International Criminal Court in the Investigation of War Crimes in Ukraine (Novum Jus, 17(2), 353–374, 2023) on SSRN.  Here is the abstract:

Ukrainian law enforcement agencies are working in cooperation with the International Criminal Court - ICC and countries that jointly support the ICC to collect evidence of Russia’s atrocity crimes in order to hold the alleged perpetrators accountable. The collection of evidence in the situation of Ukraine ever turned into an unprecedented investigation of the likely international crimes committed by Russian armed forces in Ukraine. This study aims to determine the fundamental role and significance of the ICC in a collective investigation of the situation in Ukraine. Knowing that the definition of the term “war crimes” does not exist in the current legislation of Ukraine, this study attempts a correlative analysis of the term “war crimes” in the context of international law and finds that Ukrainian law enforcement agencies and institutions are capable of documenting war crimes committed in Ukraine by the Russian Federation. This suggests that the ICC, in comparison to its previous international investigations, definitively has a wide range of support resources to hold accountable “those most responsible“ for alleged war crimes and crimes against humanity, as emphasized in its prosecutorial policy documents.

Giving Thanks

Today is the Thanksgiving holiday in the United States, and it has been my tradition for many years to express my gratitude to the many individuals and communities that have made my work (including Legal Theory Blog) possible.  This year I want to express my deep appreciation for my the love and support that my sister, Alexandra Lawrence Sloan, has provided for decades, through thick and thin, in good times and those that are not so good.  Alex has a beautiful spirit, a generous nature, great wisdom, and keen insight.  Thank you so much, Alex.

Cannon on Space Mining and the Rule of Law

Andrew J. Cannon (University of Adelaide - School of Law; Münster University; Flinders University - School of Law) has posted The Necessary Extension of the Rule of Law to Space Mining ((2023) 32 Journal of Judicial Administration 114) on SSRN.  Here is the abstract:

Humans are extending their activities into outer space, and particularly mining space resources. It is necessary to develop a rule of law to regulate those activities to avoid risks of bad practice and conflict and to provide the legal certainty and a wide sharing of benefits. This article notes that the present treaty regime for outer space is not fit for this purpose and discusses what a rule of law for mining in outer space might look like, drawing on the experience of Australian mining law.

Caldwell, Sood, & Sincich on Vega v. Tekoh and Miranda Warnings

Harry M. Caldwell (Pepperdine University - Rick J. Caruso School of Law), Gautam Sood (Pepperdine University - Rick J. Caruso School of Law), & Marcel Sincich have posted Vega v. Tekoh: A Missed Opportunity to Protect Miranda (Stetson Law Review, Vol. 53, No. 1, 2023) on SSRN.  Here is the abstract:

This Article will critically examine the U.S. Supreme Court’s Vega holding that failed to provide meaningful protection against illegally obtained incriminating statements. First, this Article will examine Vega’s key holding and the factual context that gave rise to this case. Next, this Article will turn to a targeted discussion of 42 U.S.C. § 1983 and Miranda’s historical context. Last, this Article will address the Vega Court’s lackluster cost-benefit analysis.

Roth on Sikh Asylum Claims and the Library of Congress Report

Josh Roth (Cornell Law School) has posted How the Library of Congress Restricted Asylum for Sikhs and How to Fight Back (31 Berkeley Asian Am. L.J. __ (2024)) on SSRN.  Here is the abstract:

Asylum is supposed to be a last resort. In its efforts to enforce it as such, the Department of Justice partnered with the Library of Congress in 2018 to draft a report claiming that Sikh asylees can safely relocate to other regions of India rather than resettle in the United States. Three years later, the Second Circuit affirmed a Sikh asylee’s denial of removal relief based on the Library of Congress report. In doing so, the Second Circuit effectively fortified a non-periodical government report that was problematic at the onset.

Many Sikhs fear for their well-being in India and have sought refuge in the United States. In 2018, the Library of Congress published a report claiming that instead of filing for asylum in the United States, Sikhs can safely relocate in India. This report was ubiquitously used in Sikh removal proceedings and reached the Second Circuit in 2021. In Singh v. Garland, which affirmed a Sikh asylee’s removal order based on the Library of Congress report. This case presents a novel issue of incorporating a non-periodical government-sponsored report into a broadly applicable decision.

Part I of this Article discusses asylum law as applied to Sikhs and the issue of internal relocation. Part II discusses the Library of Congress report and summarizes its key points. Part III analyzes the Second Circuit’s decision in Singh v. Garland and subsequent Sikh asylum cases. Part IV proposes recommendations for overcoming the Library of Congress report and Singh in future removal proceedings.

Squitieri on Justice Barrett's Concurrence in Biden v. Nebraska

Chad Squitieri (The Catholic University of America's Columbus School of Law) has posted Placing Legal Context in Context on SSRN.  Here is the abstract:

In Biden v. Nebraska, Justice Barrett authored a concurrence in which she characterized the major questions doctrine as a linguistic canon that accounts for the “legal context” surrounding delegations of power. Some scholars have critiqued Justice Barrett’s concurrence on the grounds that empirical research suggests that ordinary readers do not account for “majorness” in the way that the major questions doctrine requires. This Essay argues that those critiques miss the mark because they conflate factual context with legal context.

Justice Barrett’s concurrence should be considered within the broader textualist tradition of understanding “ordinary meaning” as a legal concept, and not simply an empirical fact. But to say that Justice Barrett’s concurrence should be understood within that broader textualist tradition is not to say that her concurrence is immune from criticism. To the contrary, this Essay contends that Justice Barrett’s concurrence does not account fully for legal context concerning the President’s lawmaking functions. The upshot is that textualists eager to embrace the major questions doctrine are better off reconceptualizing the doctrine as a substantive canon that polices the precise lines delineating the lawmaking powers vested in the President and Congress.

Recommended.

Gardner on State Constitutions and Judicial Federalism

James A. Gardner (University at Buffalo Law School) has posted New Challenges to Judicial Federalism (Kentucky Law Journal, Forthcoming) on SSRN.  Here is the abstract:

The theory of judicial federalism holds that state constitutions are jurisprudentially independent from the U.S. Constitution, and that state supreme courts consequently may, and often should, interpret state constitutions differently from how the U.S. Supreme Court interprets the federal Constitution. As the U.S. Supreme Court increasingly turns back to the states important decisions of constitutional policy, such as the scope of reproductive rights or the nature and content of limitations on partisan gerrymandering, state constitutional law looms ever larger as a potential ground for resolution of these issues.

However, the conditions for a revival of judicial federalism today are far less propitious than those that prevailed during the theory’s initial efflorescence during the 1970s through the early 1990s. First, federalism is getting swamped by partisan politics. American politics are quickly becoming both nationalized and deeply polarized, and territory increasingly aligns more with partisanship than with distinctively local values and policy preferences. Second, state judiciaries are increasingly becoming politicized. They are now routinely targeted for capture by national partisan organizations. Judicial elections are often funded by immense influxes of out-of-state money from donors whose goals align with national partisan agendas. Both of these developments greatly diminish the likelihood that state constitutional jurisprudence might remain independent not only from its federal counterpart but, more alarmingly for the rule of law, from the campaign platforms of the major national political parties.

Highly recommended.

Finally, these challenges have only been exacerbated by an emerging ethos on the U.S. Supreme Court characterized not only by a seeming responsiveness to rank partisanship, but by an accompanying attitude of judicial impunity. This ethos is manifested in inattention to traditional judicial ethics of impartiality; a casual and highly selective approach to precedent; and managerial practices of insincerity and opacity. To the extent that state judges choose to model their own behavior on that of the Supreme Court, these developments can only reduce the likelihood that jurisprudential independence will be cashed out as impartial, truly independent state constitutional decision making. It is far more likely to encourage state judges to yield to impulses of partisanship and political self-interest.

Lieblich on Whataboutism and International Law

Eliav Lieblich (Tel Aviv University - Buchmann Faculty of Law) has posted Whataboutism in International Law (Harvard International Law Journal, Vol. 65, No. 2, 2024) on SSRN.  Here is the abstract:

Whataboutism, as a response to allegations of wrongdoing, is everywhere in contemporary public discussion, and international law is not an exception. Unsurprisingly, it has been central to Russia’s justification discourse regarding its invasion of Ukraine. Whataboutism evokes conflicting responses. On the one hand, it can be a logical fallacy and is frequently employed as a cheap tactic to derail public debate. On the other, we often feel that there might be something in such arguments, and that they cannot be dismissed offhand.

This article seeks to offer a general theory on the potential normative relevance of whataboutism in international law. Utilizing insights from the theoretical framework of informal logic, it shows that whataboutism should be addressed as a potentially valid argumentative scheme, rather than as a pure fallacy. The article argues that since whataboutism in international law frequently invokes notions of unfairness, the question whether whataboutism is relevant in international legal argumentation requires establishing whether there are indeed obligations of fairness between the alleger and the whataboutist objector.

As the article claims, since obligations of fairness generally require the exercise of public power, the salient question concerning the relevance of whataboutism in international law is whether international actors interact under assumptions of private or public law. The article explores both traditions in international legal theory, offers indications for the existence of such public functions in specific instances, and suggests preliminary implications of a relevant whataboutist claim in international law.

Recommended.

Bhattamishra on Abrogation of Article 370 of the Indian Constitution

Tanya Bhattamishra (University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University) has posted Abrogation of Article 370: Political Attack or Step for Holistic Democracy? (6(5) IJLMH Page 2343-2356 (2023)) on SSRN.  Here is the abstract:

The abrogation of Article 370 of the Indian Constitution in August 2019 marked a significant turning point in the history of the Indian subcontinent. This paper aims to comprehensively analyse the decision to revoke the special status of the state of Jammu and Kashmir and its implications on the region, as well as the wider political and socio- economic landscape of India.

This paper begins by providing a historical context of Article 370 and its evolution, shedding light on the unique provisions that granted the state of Jammu and Kashmir a level of autonomy distinct from other Indian states. Following this, it delves into the complex legal and constitutional dimensions that surrounded the abrogation process. The paper then examines the geopolitical consequences of this monumental decision, with a focus on its impact on India-Pakistan relations and the security dynamics in the region. The paper also explores the implications for the residents of Jammu and Kashmir, including the altered demographics and the socio-economic challenges faced by the region in the post-370 era. Through a multidisciplinary approach that integrates historical, legal, political, and socio- economic perspectives, this paper aims to provide a comprehensive understanding of the abrogation of Article 370 and its far-reaching consequences. It underscores the complex interplay of factors that have shaped the region and the nation, and it invites further discussion on the impact of this historic event on the ongoing challenges and opportunities facing the people of Jammu and Kashmir and the Indian subcontinent as a whole. The paper finally closes by making a harms-benefits analysis of the impact that Article 370 has left on the modern Jammu and Kashmir and Ladakh region.

Allread on State Supremacy Arguments in Federal Indian Law

W. Tanner Allread (Stanford University - Department of History) has posted The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law (123 Colum. L. Rev. 1533 (2023)) on SSRN.  Here is the abstract:

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.

This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.

This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism arguments.

Highly recommended.

Pushaw on Standing and Article III

Robert J. Pushaw (Pepperdine University - Rick J. Caruso School of Law) has posted Clarifying Standing: Reviving the Original Understanding of Article III (George Mason Law Review, Forthcoming) on SSRN.  Here is the abstract:

The Supreme Court’s standing doctrine determines who can sue in federal court. For the past half century, the Court has asserted that Article III, by extending federal “judicial power” to “Cases” and “Controversies,” limits standing to parties who have a “personal stake” in a dispute with an adverse defendant. Specifically, plaintiffs must demonstrate that (1) they have suffered a particularized, concrete “injury in fact” (2) caused by the defendant (3) that is likely to be judicially redressable.

Unfortunately, the injury, causation, and redressability standards are so malleable that they are routinely manipulated depending upon whether a judge wishes to reach the merits, which reflects the judge’s view of the substantive legal issues presented. Consequently, standing cases are hopelessly confused and inconsistent. The Justices have recently lavished attention on the doctrine, but have only made matters worse by producing a welter of inscrutable majority, concurring, and dissenting opinions.

The foundational problem is that the Court’s standing law has no basis in Article III’s language or history or in the Constitution’s structure. That original meaning authorized parties to litigate a federal law “Case” if they satisfied three conditions. First, a plaintiff had to assert a legal right in a form prescribed by law, which since 1789 has included various proceedings that did not involve an adversarial defendant. Second, that claim had to arise fortuitously – i.e., the plaintiff had no control over the liability-triggering act or event and no intent to deliberately manufacture a lawsuit. Third, a “case” had to present a legal question that required interpretation by an independent federal judge who was an expert in federal law. Article III thereby furthered separation of powers because federal courts would accept all jurisdiction over “Cases” that Congress had validly conferred on them.

The Court faithfully implemented this understanding of Article III for more than a century and a half, which led to clear and predictable results. By contrast, the modern switch to the injury-causation-redressability triad has created an analytical muddle and has allowed federal courts to abdicate their duty to exercise their jurisdiction, granted by Congress pursuant to Article III, over “all Cases” involving federal statutory and constitutional claims. Reviving the original meaning of Article III would significantly clarify standing doctrine.

Alarie & Becher on a Decentralized, AI Optimized Legal System (Link Fixed)

Benjamin Alarie (University of Toronto - Faculty of Law; Vector Institute for Artificial Intelligence) & Samuel Becher (Victoria University of Wellington) have posted Decent Law: Beyond Constitutions, Codes and Cases on SSRN.  Here is the abstract:

Emerging technological developments, such as ongoing rapid improvements in artificial intelligence, will significantly transform legal systems. New technologies are already enhancing the predictability of litigation outcomes and beginning to automate adjudication processes. However, such advancements only scratch the surface of the potential disruptions and opportunities to come.

It can hardly be otherwise. Current legal systems were not designed with the accommodation and exploitation of new technologies in mind. It is no surprise then that our legal systems are not well-positioned to maximize the realization of possible social benefits from these new technologies. This paper contends that new technologies will challenge traditional approaches to the practice of law, which is often rigid, opaque, and slow. New technologies will also create massive gains, which may be poorly distributed and result in a stratified society of winners and losers.

Anticipating that future, we critically examine the potential for a decentralized and AI-optimized legal regime dubbed ‘decent law.’ Decent law—characterized by its community-driven, tailored, and personalized nature—has the potential to leverage new technology to improve accessibility, equity, inclusivity, and efficiency in legal institutions. Drawing upon a critical analysis of relevant literature and recent or projected technological developments, we provide a conceptual framework for decent law and explore its benefits. We also acknowledge the potential limitations and difficulties this transformation may confront. We conclude by emphasizing the need for a dynamic framework for legal system transformation that optimally leverages the strengths and mitigates the weaknesses of humans and emerging technologies alike.

Highly recommended.

Lee on Copyright and AI

Edward Lee (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Prompting Progress: Authorship in the Age of AI (Florida Law Review, Vol. 76, 2024 Forthcoming) on SSRN.  Here is the abstract:

This Article examines a question of profound importance today: do the works people create using AI qualify for copyright? The Article explains why the Copyright Office’s new guidance excluding AI-generated works from copyright is wrong. The federal courts should return to the first principles of authorship and reject the imposition of any artificial requirements—such as the Copyright Office’s newfound requirements of sufficient control, avoidance of random elements in the creative process, prediction of the final work ahead of time, or dictation of specific results—that restrict authorship or progress in the United States. Focusing on the first principles of authorship under the Copyright Clause and its overriding objective to “promote progress,” the proper test of authorship examines whether the person contributes, at least, a minimal level of creativity in the origination of the work, which may be satisfied simply by a person’s selection or arrangement of elements in the work. The requisite level is, as the Supreme Court recognized, “extremely low,” or what this Article describes as the bare minimum. Not only is this bare minimum approach more faithful to the Copyright Clause and Supreme Court precedent, but it also preserves Congress’s power to decide how best to promote progress in the twenty-first century. The recommended approach also aligns with the framework emerging in the European Union that divides AI works into two classes: (1) AI-assisted works, which may qualify for copyright, versus (2) autonomously generated AI works, which do not qualify.

Recommended.

Martinez-Villalba on "Natural Law Theory" by Angier

Juan Carlos Riofrio Martinez-Villalba (Strathmore University; Universidad de Los Hemisferios; Pontificia Università della Santa Croce) has posted Tom Angier’s Natural Law vs. the Natural Law Formula on SSRN.  Here is the abstract:

This article presents a comprehensive overview and analysis of Tom Angier’s latest book, “Natural Law Theory”, published in 2021 by Cambridge University Press, and also compares its main conclusions with another study that analyses how natural law scholars have argued over the last century. To achieve this goal, the article initially outlines the core ideas of Angier’s book, which seeks to elucidate and assess the most significant theories of natural law throughout history, with an emphasis on the traditional approach rooted in Aristotle and the Stoics. Angier introduces the innovative “via negativa” method for identifying natural law principles within this framework. Following the exposition of the book’s content, the article draws parallels between Angier’s conclusions and the findings of another research project about the “Natural Law Formula” (or methods) currently used by natural law experts in legal literature. Both Angier and this research observe that contemporary authors face challenges in grounding the principles of natural law in the physical and spiritual human nature. Lastly, the article evaluates the “via positiva” and “via negativa” methodologies, highlighting their potential contradictions and concordances, while suggesting avenues for further refining Angier’s arguments.

Samah & Pathmanathan on Decolonizing Malaysia's Legal System

Daniel Samah (Federal Court of Malaysia) & Tan Sri Datuk Nallini Pathmanathan have posted Between the Thames and Sungai Klang: The Struggle to Decolonize Malaysia’s Legal Paradigm on SSRN.  Here is the abstract:\

This research examines the imperative task of decolonizing Malaysia's legal paradigm, with a focus on lessons derived from India's struggle for independence and subsequent legal reforms. Authored by Abu Daniel bin Abu Samah under the guidance of Tan Sri Datuk Nallini Pathmanathan FCJ, the article elucidates the need for a departure from the entrenched reliance on English case laws towards a more interdependent legal framework. The authors contend that as Asia and Africa witness an influx of capital and businesses, it is time to reevaluate the dominance of English law in commerce.

Drawing parallels with India's constitutional evolution, the study underscores the significance of incorporating pre-colonial cultural values into legal systems. It highlights the pivotal role of India's Constitution in catalyzing "Swaraj" or independence, moving beyond borrowed constitutional ideals and emphasizing the importance of indigenous wisdom. The authors also discuss India's endeavor to reclaim its historical and linguistic identity through the renaming of cities and provinces, urging Malaysia to similarly embrace the task of "Malaysianizing" its legal system.

Furthermore, the research addresses the notion of a "captive legal mind" and the enduring influence of colonial education on legal traditions. The authors advocate for a shift towards local legal paradigms, recognizing the richness of Malaysian and Commonwealth jurisdictions. Additionally, the study introduces the concept of transformative justice, drawing inspiration from Frantz Fanon's call for a rejection of intellectual imperialism. It proposes a framework centered on rehabilitation over retribution, fostering a more accessible and egalitarian approach to justice.

In conclusion, the research posits that the struggle to decolonize Malaysia's legal paradigm is intertwined with the broader pursuit of national identity and cultural resurgence. By examining India's journey towards independence and legal reform, this study offers valuable insights and prospects for reshaping Malaysia's legal landscape, ultimately envisioning a society that upholds the values of justice, inclusivity, and cultural authenticity.

Acker on Laws Targeting Religion As Such

Caleb Acker has posted The Torcaso-Masterpiece Rule "As Such" on SSRN.  Here is abstract:

This paper makes the simple assertion that the Supreme Court’s recurring dicta, “a law targeting religious beliefs as such is never permissible,” has been realized as a holding in two decisions, Torcaso v. Watkins and Masterpiece Cakeshop v. Colorado Civil Rights Commission. In both cases, the Court did not apply strict scrutiny when it struck down the respective government actions. It simply struck them down. That is because targeting religious beliefs as religious beliefs, the most egregious form of government targeting of religion, is automatically unconstitutional. Despite the Court’s blatant twice refusal to use strict scrutiny in cases concerning the targeting of religious belief as such, the application of this rule has garnered little recognition in the legal academy. I argue that (1) this dyad is a legitimate enclave of First Amendment jurisprudence as situated in the Court’s holdings throughout history; (2) the rule holds post-Fulton and may be applied in the future; and (3) the rule should be extended to all government targeting of religious action and conduct, because the Cantwell Court’s distinction between action and belief is utterly wrong.

Kreis Libertarian Constitutionalism & Panic

Anthony Michael Kreis (Georgia State University - College of Law) has posted Patterns of Panic (Saint Louis University Law Journal (forthcoming 2024) (Childress Lecture Symposium)) on SSRN.  Here is the abstract:

Disruptions in the constitutional order can agitate social anxiety, particularly when an out-group on the rise challenges an in-group's political dominance and position in a constitutional regime. This has been acutely true concerning civil rights expansion, where civil rights opponents have turned to libertarian theories of law when their cultural currency is on the ropes. This essay highlights some of the similarities between libertarian ideological impulses at critical junctures of American constitutional development during Reconstruction and in resistance to the rights of gay, lesbian, bisexual, and transgender Americans in the twenty-first century. In these two crucial moments of constitutional development, a similar pattern of panic emerged whereby opponents to a more progressive constitutional order worked to steer civil rights jurisprudence toward a deregulatory, market-centered theory of rights, favoring live-and-let-live approaches to remedying social inequality over a state-backed right to dignity in the public square.