Legal Theory Blog

Several Papers by Morawetz

Thomas Morawetz of the University of Connecticut has posted several interesting papers from the 70s, 80s, and 90s:

A Utilitarian Theory of Judicial Decision

Commentary: The Rules of Law and the Point of Law

Persons Without History: Liberal Theory and Human Experience

Law As Experience: Theory and the Internal Aspect of Law

Retributivism and Justice

Efficiency, Morality, and Rights: The Significance of 'Cleaning Up'

I am big fan of Morawetz's work.

Feingold on Counterproductive Civil Rights Litigation

Jonathan Feingold (Boston University School of Law) has posted Civil Rights Catch 22s (Cardozo Law Review, Vol. 43, 2022) on SSRN.  Here is the abstract:

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain under-explored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or over-incarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial biases and regressive theories of inequality. When they do, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to this dynamic as a “civil rights catch 22.” To concretize this phenomenon and its effects, I explore recent right-to-education lawsuits featuring low-income students of color. The cases reveal how doctrine can drive plaintiffs to portray themselves and their communities through a lens of poverty and illiteracy. Even if strategic from a litigation perspective, the proliferation of such narratives can entrench disparities across educational domains.

For decades, critical race theorists have revealed how the law “constructs” race. This article builds on that canon but shifts the lens to litigation itself. For those committed to meaningful racial reform, better understanding this dynamic is essential—particularly given the emancipatory role that civil rights litigation is understood to fulfill.

Li on Judicial Reform in China & Foreign Investment

Yishuang Li (Department of Politics, New York University) has posted Court Structure, Judicial Independence, and the Attraction of Foreign Investment: Evidence from the Judicial Reform in China on SSRN.  Here is the abstract:

Existing research suggests that an independent and efficient judicial system is crucial for attracting foreign investment. However, a remaining puzzle is whether a centralized or decentralized court system contributes to more investment? It is widely taken that a decentralized political system may encourage politicians to improve the rule of law due to inter-jurisdictional competition for foreign investment; nevertheless, the higher vulnerability to local favoritism and political patronage between domestic firms and local governments under such a system should not be neglected. Applying a difference-in-differences design on original data of recent judicial reforms in China, this paper finds that the centralization of power to control local courts from local governments into the hands of higher-level governments increases foreign investment. Furthermore, after the judicial centralization reform, foreign investors spend less on building connections with domestic firms or bribing local officials. These results suggest that the centralization of local courts helps attract foreign investment by limiting the power of local governments to intervene in the judicial system.

Messner on Civil Liability for Industrial Pollution in Europe

David Messner (University of Graz - Faculty of Law) has posted The Foundations of Civil Liability for Industrial Pollution on SSRN.  Here is the abstract:

In European private law, operators of industrial facilities, power plants and other sites using special substances or procedures are made responsible for harm caused by pollution even where it is doubtful that such harmdoing is unreasonable or could have been foreseen. Analysing both fault-based and strict liability, the author discusses legal bases for this liability and its justification in European jurisdictions.

Legal Theory Bookworm Recommendations for 2021

Here are ten of my favorite books that appeared on the Legal Theory Bookworm for 2021:

Black Natural Law by Vincent W. Lloyd

Causation with a Human Face: Normative Theory and Descriptive Psychology by James Woodward

Democratic Law by Seana Shiffrin

Fair Opportunity and Responsibility by David O. Brink

On Intersectionality: Essential Writings by Kimberlé Crenshaw.

Purchasing Submission: Conditions, Power, and Freedom by Philip Hamburger

Punishment Without Trial: Why Plea Bargaining Is a Bad Deal by Carissa Byrne Hessick

The Reconstruction Amendments: The Essential Documents (Volume 1) (and Volume 2), edited by Kurt Lash

Reproducing Racism: How Everyday Choices Lock In White Advantage by Daria Roithmayr

Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health by Michael A. Livermore & Richard L. Revesz

Downloads of the Year 2021

Here are ten of my favorite papers that were posted on Legal Theory Blog in 2021:

 Big Data and Compounding Injustice by Deborah Hellman

The Equal Rights Amendment, Then and Now by Julie C. Suk

The Ghost of John Hart Ely by Ryan Doerfler & Samuel Moyn

Grounding Legal Proof by Michael S. Pardo

In Defense of Theory: Notes on the Production of Legal Scholarship by Samuel Estreicher

'In Whom is the Right of Suffrage?': The Reconstruction Acts as Sources of Constitutional Meaning by Franita Tolson

On Power & the Law: McGirt v. Oklahoma by Maggie Blackhawk

The Puzzles and Possibilities of Article V by David Pozen & Thomas P. Schmidt

Visibility and Indivisibility in Resource Arrangements by Lee Anne Fennell

Weaponizing En Banc by Neal Devins & Alli Orr Larsen

Legal Theory Lexicon: Libertarian Theories of Law

Introduction

The dominant approaches to normative legal theory in the American legal academy converge on fairly robust role for the state and government subject to the constraints imposed by an equally robust set of individual rights. Normative legal theorists of all stripes--conservatives and liberals, welfarists and deontologists—tend to agree that the institution of law is fundamentally legitimate and that the legal regulation has a large role to play. There is, however, a counter-tradition in legal theory that challenges the legitimacy of law and contends that the role of law should be narrowly confined or even eliminated. This entry in the Legal Theory Lexicon will examine libertarian theories of law. As always, the Lexicon is aimed at law students—especially first year law students—with an interest in legal theory.

The libertarian tradition of social, political, and legal thought is rich and varied, no brief summary can do it justice. So the usual caveats apply. This is a brief introduction to libertarian thought with an emphasis on its role in normative legal theory. Debates about the true meaning of the term “libertarian” will largely be ignored, and will disputes over the advantages of “liberalism,” “classical liberalism,” and “libertarianism” as the best label for libertarian ideas. Enough with the caveats, here we go!

Historical Roots of Contemporary Libertarianism

One good way to approach contemporary libertarian legal theory is via its historical roots. A good place to begin is with John Locke’s conception of the social contract.

John Locke and the Social Contract

The idea of a “social contract,” by which individuals in a state of nature contract with each other (or with a sovereign) to enter a “civil society” is one of the most important in all of political philosophy. Hobbes, Rousseau, and Locke all have distinctive theories of the social contract, but Locke’s version has been especially salient—both to libertarian theory and American constitutionalism. For the purposes of this discussion, the crucial point is that a legitimate (or perhaps just) civil society has authority that is limited to those powers that the citizens-to-be would agree to delegate to the government in a social contract. Locke himself argued that the inconveniences of the state of nature would motivate a social contract that delegated to the government the power to protect property—understood in a broad sense that encompasses personal security and liberty—and the power to resolve disputes. But the Lockean social contract would not authorize government to restrict fundamental liberties or to take property from one citizen and transfer it to another. Of course, there is much more to say about Locke, but we are concerned here only with getting the gist of those Lockean ideas that are historically important to libertarian theory.

Kant and Spheres of Autonomy

Kant also made an important contribution to libertarian theory via his idea of autonomy. There is no good way to summarize Kant’s theory of autonomy in a sentence or two, but the gist of his notion is the humans, as rational beings, have an interest in being autonomous in the sense of “self governing.” The role of law is to protect individual “spheres of autonomy” or “zones of liberty” in which individuals can act without interference from others. Suppose then, that our theory of proper legislation was that the laws should create maximum equal liberties for each, consistent with the same liberty for all. These two Kantian ideas—autonomy and maximum equal liberty—have played an important role in libertarian thinking about law.

John Stuart Mill and the Harm Principle

John Stuart Mill was a liberal utilitarian, and so, in a sense, it is odd that he is also the author of one of the most important works in the libertarian tradition, On Liberty, a rich, complex, and easily misunderstood work. I am afraid I may be contributing to the misunderstanding by emphasizing just one idea from On Liberty--the so-called “harm principle.” Here is how Mill states the principle:

. . . the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right...The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

The harm principle is almost as controversial as it famous. In particular, there is a persistent worry about the problem of the baseline against which “harm” as opposed to “lack of advantage” might be measured.  Many libertarian theorists have recognized this problem and replace "harm" with "rights violation" as the relevant principle that defines the limits of governmental (or social) coercion.

Locke, Kant, and Mill are not the only historical influences.  Another figure worth mentioning Herbert Spencer, whose "Social Statics " famously drew Justice Holmes's fire in the famous lochner dissent.  Libertarian thought is also related to anarchism, with roots in the thought of William Godwin, Pierre-Joseph Prodhoun, and others.

Theoretical Foundations of Libertarianism

This very brief introduction to the historical roots of libertarianism in Locke, Kant, and Mill prepares the way for a discussion of the theoretical roots of libertarian legal theory. Libertarianism operates at the level of political theory: it is a view about questions like “What is the proper role of government?” and “When is coercive legislation legitimate?” Theories at this level of abstraction need foundations of some sort, either deep foundations in comprehensive moral theories like utilitarianism or shallow foundations that explain why deeper foundations are unnecessary. Let’s take a look at both sorts of foundations for libertarian legal theories.

Consequentialist Foundations

The consequentialist case for libertarianism is contingent—it depends on empirical and theoretical questions about the effects that various legal regimes have. Consequentialist libertarians believe that minimum government interference with individual liberty and free markets produces better consequences that extensive government regulation or redistribution of income. Historically, both John Stuart Mill and Adam Smith are associated with both libertarianism and consequentialism.

There are many different flavors of consequentialism, but in the legal academy, the most prominent strands of consequentialist thinking are associated with law and economics and assume a preference-satisfaction (or “welfarist”) notion of utility. Even among theorists who accept welfarism, there are major disagreements about how much and when government should regulate. But the general idea behind the consequentialist case for libertarianism is that markets are more efficient than regulation. This conclusion follows from fairly straightforward ideas in neoclassical microeconomics. Markets facilitate Pareto-efficient (welfare enhancing) transactions; regulations thwart such transactions.

Markets may lead to substantial disparities in wealth and income, but from the consequentialist perspective, such inequalities may not justify legislation that redistributes wealth and income. First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor. Of course, there is a well-known utilitarian argument for the redistribution of wealth and income based on the idea of diminishing marginal utility, but this argument might be outweighed by the massive utility losses caused by redistributive programs—providing a utilitarian argument against government-mandated redistribution of wealth and income. Second, even consequentialists who believe in some form of egalitarianism might believe that the worst off members of society will be better served by a libertarian regime than by a social-welfare state. We are already on a tangent, so I’m going to leave the topic of redistribution—noting that this is an issue upon which consequentialists themselves many differ in a variety of ways.

In contemporary legal theory, Richard Epstein is the “libertarian” thinker who is most strongly associated with consequentialist foundations. Because he is a consequentialist, Epstein may not be a pure libertarian, but on a variety of issues (e.g. antidiscrimination laws), Epstein takes strongly libertarian positions.

Deontological Foundations

Although some libertarians are consequentialists, many others look to deontological moral theory for the foundations of their libertarianism. There are many different strategies for arguing for libertarianism based on deontological premises. One method starts with the idea of self-ownership or autonomy. Each of us has a moral right to control our own bodies, free of wrongful interference by others. This might imply that each individual has a right against theft, battery, false-imprisonment, enslavement, and so forth. Of course, these rights might justify a certain kind of government—one that protects us against invasions of our rights. But when government goes beyond the protection of these rights, then government itself operates through force or threats of force. For example, the redistribution of income might be accomplished by taxing income to finance a welfare system. Taxes are not voluntary; tax payments are “coerced” via threats of violence and imprisonment. Without consent, it might be argued, these threats are wrongful actions.

In my mind, the deontological approach to the foundations of libertarian political theory is most strongly associated with the late Robert Nozick and his magnificent book, Anarchy, State, and Utopia (see reference below).

Pluralist Foundations

There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of libertarianism, because we reject the foundations.  One alternative would be to try to argue for libertarianism on the basis of all of the different moral theories, but that would obviously be a very time-consuming and difficult task.  Another approach would be to articulate shallow foundations for libertarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian.

One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- has good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.

Libertarian Agendas for Legal Reform (or Revolution!)

Even though this is “Legal Theory Blog,” we should say something about the practical agendas of various libertarian legal theories. Let’s begin with modest libertarianism and proceed to its most radical (anarchist) forms.

Modest Libertarian Reforms: Deregulation, Privatization, and Legalization

At the very least, libertarians favor less government—as measured against the baseline of the current legal order in the United States. So, libertarians are likely to be in favor of more reliance on markets and less reliance on government. Hence, libertarians are likely to support programs of deregulation and privatization. Deregulation might include measures like abolition of consumer product safety regulations and the elimination of rent control laws. Privatization might include the federal government selling off the national park system or the Tennessee Valley Authority.

A libertarian reform agenda might also include the legalization of various forms of conduct that are currently prohibited. Examples of this kind of reform might include the legalization of recreational drugs, the end of prohibitions on various consensual sexual activities, and the elimination of restrictions on gambling and prostitution.

Comprehensive Libertarian Reform: The Night-Watchman State

A more ambitious libertarian agenda might be the establishment of what has been called the night-watchman state. The idea is that government would limit its role to the protection of individual liberty. Government would continue to provide police protection, national defense, and a court system for the vindication of private rights (property, tort, and contract rights, for example), but nothing else. In other words, the function of law would be limited to those activities that are necessary for the protection of private property and liberty.

The difference between the advocacy of modest and comprehensive libertarian reform may be more a matter of tactics than of principle. One might believe that there is no realistic chance of a transition to a night-watchman state. Those who advocate such comprehensive reform may undermine their own political effectiveness by sounding “radical.” So as a matter of practical politics, it may be that libertarians are most effective when they advocate marginal reforms that move the system incremental in libertarian directions.

Libertarian Revolutions: Anarchy and Polycentric Constitutional Orders

Some libertarians advocate an agenda that is even more radical than the night-watchman state. One might question whether there is a need for the nation state at all. One version of this more radical approach is pure anarchism—the view that no government is necessary because individuals can coexist and cooperate without any need for state action. Another variation of this idea is sometimes called a “polycentric constitutional order.” The idea is that individuals could subscribe to "competitive legal systems and law enforcement agencies" that would provide the police and adjudication functions of the night watchman state. Such a society would have entities that functioned like governments in some ways—with the important exception that individuals would enter into voluntary agreements for their services.

The Rivals of Libertarian Legal Theory

Libertarian theory can be criticized in a variety of ways. Sometimes the disagreement is mostly empirical: libertarians believe that life without the state would be better, and anti-libertarians believe it would be worse. But sometimes the critics of libertarianism have a radically different vision of the fundamental purposes of government. One such rival is egalitarianism—the view the distributive justice requires that goods (let’s leave the definition of good at the abstract level) should be divided equally, and that the creation of social equality is the primary aim of government. Some libertarians might accept this goal, but argue that maximum liberty is the best way to achieve it. Other libertarians might argue that liberty is the good that should be equally divided. But many libertarians see equality as the wrong goal for government. That is, sometimes libertarians and egalitarians differ fundamentally over the purpose of government.

Another rival to libertarianism is the view that legislation should aim at the promotion of virtue in the citizenry. If one believes that the aim of government is to make humans into better people, then one is likely to see a variety of restricts of liberty as justified. (Let’s call views that see virtue as the end of government “aretaic political theories.”)

Aretaic political theorists are likely to disagree with libertarians over what might be called “moral legislation.” For instance, one might believe that legal prohibitions on gambling, drugs, and prostitution are justified because they help promote a moral climate where most citizens don’t want to engage in these activities. Many libertarians would say it is simply not the business of government to decide that a taste for gambling is a bad thing; whereas many virtue theorists are likely to say that this is precisely the sort of work that governments should be doing.

Conclusion

Libertarian legal theory is interesting on the merits—as one of the most significant normative theories of law. But there is another important reason for legal theorists to be interested in libertarianism--even if they ultimately reject it. Libertarian legal theories call into question the very purpose of law and government. A really careful evaluation of libertarianism requires that one form views about the function of law and the purposes of government, and to confront a variety of criticisms of conventional views about those topics. For that reason, thinking about libertarian legal theory is an excellent way of thinking about the most fundamental questions in normative legal theory.

Related Lexicon Entries

• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

References

• Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Oxford University Press, 1998).
• Richard A. Epstein, Skepticism and Freedom: A Modern Case for Classical Liberalism (Studies in Law and Economics) (Chicago: University of Chicago Press, 2003).
• Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1977).
• Herbert Spencer, Social Statics (1851).

Internet Resources

• Online Library of Liberty

(This entry was last revised on January 2, 2022.)

Year End Roundups Will Appear on Sunday, January 2

The annual collection of downloads and bookworm selections will appear tomorrow, Sunday, January 2.  I am traveling today!  Happy New Year!

Legal Theory Bookworm: "The Rule of Law in the United States" by Gowder

The Legal Theory Bookworm recommends The Rule of Law in the United States: An Unfinished Project of Black Liberation by Paul Gowder.  Here is a description:

What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions?

This open access book traces the promise and paradox of the American rule of law in three interwoven ways.

It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional framers to see the rule of law ambitions its foundational institutions express?

It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restrictor on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law.

Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals.

The eBook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on www.bloomsburycollections.com. Open access was funded by Northwestern University Pritzker School of Law and the Northwestern Open Access Fund, provided by Northwestern University Libraries.

Here is a link to the open access version: https://rulelaw.us/.  Bravo!

Download of the Week: "Moral Appraisals Guide Intuitive Legal Determinations" by Flanagan, de Almeida, Struchiner, & Hannikainen

The Download of the Week is Moral Appraisals Guide Intuitive Legal Determinations by Brian Flanagan, Guilherme F. C. F. de Almeida, Noel Struchiner, & Ivar Hannikainen.  Here is the abstract:

Socialization demands the capacity to observe a plethora of private, legal, and institutional rules. To accomplish this, individuals must grasp rules’ meaning and infer the class of conduct each proscribes. Yet this basic account neglects important nuance in the way we reason about complex cases in which a rule’s literal or textualist interpretation conflicts with deeper values. In six studies (total N = 2541), we examined legal determinations through the lens of these cases. We found that moral appraisals—of both the rule’s value (Study 1) and the agent’s character (Studies 2-3)—shaped people’s application of rules, driving counter-literal legal determinations. These effects were stronger under time pressure and were weakened by the opportunity to reflect (Study 4). Our final studies explored the role of theory of mind: Textualist judgments arose when agents were described as cognizant of the rule’s text yet ignorant of its deeper purpose (Study 5). Meanwhile, the intuitive tendency toward counter-literal determinations was strongest when the rule’s purpose could be inferred from its text—pointing toward an influence of spontaneous mental state ascriptions (Studies 6a-6b). Together, our results elucidate the cognitive basis of legal reasoning: Intuitive legal determinations build on core competencies in moral cognition, including mental state and character inferences. In turn, cognitive control dampens these effects, promoting a broadly textualist response pattern.

Highly recommended.

Reilly on Auditing Global Supply Chains & Freedom of Association

Amanda Reilly (Victoria University of Wellington - School of Accounting and Commercial Law) has posted We Should Talk: Dialogic Accounting and Freedom of Association (Legalities 1.1 (2021): 13–18).  Here is the abstract:

A range of laws aimed at protecting workers’ rights in global supply chains such as the United Kingdom’s Modern Slavery Act 2015 and the Australian Modern Slavery Act 2008 rely on reporting and auditing mechanisms. These initiatives have been criticised on various grounds with one criticism being that these tools are not suitable for enhancing or protecting process rights such as freedom of association.

Dialogic accounting theory envisions accounting as an open-ended and ongoing process of dialogue which facilitates democratic participation and learning both in the process of generating the accounts and in the uses that the accounts are put to. This intervention considers what insights may be drawn from dialogic accounting theory to strengthen and improve reporting regulation around freedom of association. It suggests that dialogic accounting theory guides us to think carefully about the design of reporting requirements including a sensitivity to what is reported, how it is reported, how it is reported, who participates in the reporting process and who the reporting is directed to.

It concludes by suggesting that an evolving dialogue between law and accounting about forms of accountability and the ways in which and law and accounting can jointly contribute to improved working lives and empowerment is worth further exploration.

Kaplan on a Descriptive Account of Table Manners & the Normativity of Social Institutions

Jeffrey Kaplan (University of North Carolina (UNC) at Greensboro; University of California, Berkeley) has posted Attitude and Social Rules, or Why It's Okay to Slurp Your Soup (Philosophers' Imprint 2021) on SSRN.  Here is the abstract:

Many of the most important social institutions—e.g., law and language—are thought to be normative in some sense. And philosophers have been puzzled by how this normativity can be explained in terms of the social, descriptive states of affairs that presumably constitute them. This paper attempts to solve this sort of puzzle by considering a simpler and less contentious normative social practice: table manners. Once we are clear on the exact sense in which a practice is normative, we see that some practices can be normative in an interesting and non-trivial sense, but also explicable with merely descriptive resources. In addition to arguing that it is possible to explain normative practices with descriptive resources, this paper presents and defends just such an explanation—an account of the nature of table manners that appeals only to descriptive states of affairs.

Guggenheim on Fulton v. City of Philadelphia

Martin Guggenheim (New York University School of Law) has posted Fulton v. City of Philadelphia: How No One Paid Any Attention to Children's Rights (Family Court Rev. 2021;1–9) on SSRN.  Here is the abstract:

As part of the special issue on foster care and Fulton v. City of Philadelphia (2021), this essay provides a brief history of the role of race and religion in the foster care system. It critiques the case for failing to address the foster care system itself, and argues that Fulton essentially endorses a system that may make it impossible for state officials to ensure that the children will thrive in the homes they are obligated to find for them.

Vogt on Freedom, Crime, & Punishment

David Chelsom Vogt (University of Bergen) has posted The Natural Meaning of Crime and Punishment: Denying and Affirming Freedom (Criminal Law, Philosophy (2021)) on SSRN.  Here is the abstract:

The article discusses the link between freedom, crime and punishment. According to some theorists, crime does not only cause a person to have less freedom; it constitutes, in and of itself, a breach of the freedom of others. Punishment does not only cause people to have more freedom, for instance by preventing crimes; it constitutes, in and of itself, respect for mutual freedom. If the latter claims are true, crime and punishment must have certain meanings that make them denials/affirma- tions of freedom irrespective of their consequences. My aim is to show that such an immanent connection between crime/punishment and freedom exists. I do so by explicating the “natural meaning” of crime and punishment. This way of addressing the topic is inspired by Jean Hampton’s use of H. P. Grice’s concept of natural meaning. Expanding on Hampton’s theory, drawing on both H. L. A. Hart and Kant, I argue that crime has the natural meaning of denying freedom, and punishment has the natural meaning of affirming freedom. The paper presents an ideal theory, not a justification for actual criminal justice practices, which in most countries unfortunately fail to instantiate the value of mutual freedom.

Cordis, Hsu, & Zhang on Freedom of Information & Industrial Pollution

Adriana S. Cordis (Winthrop University - College of Business Administration), Po-Hsuan Hsu (National Tsing Hua University - Department of Quantitative Finance), & Jin Zhang (Monash University) have posted Freedom of Information and Industrial Pollution on SSRN.  Here is the abstract:

The transparency of the information environment in which US firms operate, as measured by the strength of state-level freedom of information (FOI) laws, is negatively associated with industrial pollution. Not only do the emissions of firms decrease as FOI laws become stronger, the overall level of emissions in a state is negatively related to the total number of FOI requests received by the state’s environmental department or agency. Notably, the negative association between the strength of FOI laws and pollution emissions is concentrated in states with lower pollution abatement costs, more efficient governments, more lenient environmental policies, and higher preexisting levels of public corruption. These findings suggest that strengthening public access to information on governmental activities, especially those related to the regulation and monitoring of industrial pollution, mitigates polluting behavior.

Welton on Energy Law, Racism, & Inequality

Shelley Welton (University of South Carolina School of Law) has posted The Bounds of Energy Law (Boston College Law Review, Vol. 62, No. 7, 2021) on SSRN.  Here is the abstract:

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully em-braced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil fuels and electrons. The result, as this Article illustrates, is that we are coming up short in achieving the scale and scope of transformation necessary for planetary stability. The aim of this Article is to push U.S. energy law scholars to expand the bounds of the field in three directions. First, to achieve durable policies that transform the energy system, this Article argues that we must orient more attention to institutions, politics, and power—rather than just substantive solutions—to revive the best of the early-twentieth-century Progressive scholarly tradition. Second, as conversations around the Green New Deal and the relationship of Black Lives Matter to the energy system highlight, there is both a political and moral imperative to shed our disciplinary obsession with economic efficiency and integrate considerations of overlapping societal priorities—most pointedly, racism and inequality—into energy law and policy. Finally, we should expand our idea of what counts as “energy law” beyond the delivery of fossil fuels and electrons, to include a broader and deeper analysis of how energy is embedded and consumed within the economy and society. That means tracing and regulating the flow of energy beyond the point of delivery by examining means of reducing or eliminating fossil fuel consumption across aviation, shipping, automobility, housing, and agriculture. It also means turning our attention to how the law can help build modes of life that better align with a no-carbon future—a new line of inquiry that the Article calls “structural energy conservation.”

Edwards on Shareholder Wealth Maximization as a Schelling Point

Martin Edwards (Belmont University College of Law) has posted Shareholder Wealth Maximization: A Schelling Point (St. John's Law Review , Vol. 94, No. 3, 2021) on SSRN.  Here is the abstract:

Legal scholars have long debated the nature, meaning, efficacy, and even the very existence of the shareholder wealth maximization norm. Those who model the corporation in terms of its economic efficiency tend to defend it, while those skeptical of it have made a formidable case that corporate governance might be better if managers and directors focused more on worker wealth, environmental sustainability, and various other matters of social importance. If nothing else, the shareholder wealth maximization norm has been a persistent feature of corporate law and governance. This Article proposes that one reason for this persistence is that shareholder wealth maximization is a Schelling point. A Schelling point is a contextually intuitive way for bargainers to coordinate simply by both acting consistently how each would expect the other to act.

A Schelling point emerges as the solution in bargains where there is more than one value-creating outcome. Confronted with these multiple equilibria, the bargainers often choose the one that is the most contextually unique or intuitive, even if that solution is not optimal. Shareholder wealth maximization is the Schelling point for public investment in corporations because it is a simple and intuitive way to construct the bargain between the managers and directors on one side and the shareholders on the other. When the corporate bargain consists of the shareholders exchanging their capital for nothing more than the surplus value of the corporation, the most intuitive solution to the bargain is a tacit agreement to maximize that surplus value. Like any Schelling point, shareholder wealth maximization may not always be optimal, but its reliably useful.

Kovvali on Essential Businesses & Shareholder Value

Aneil Kovvali (University of Chicago Law School) has posted Essential Businesses and Shareholder Value (University of Chicago Legal Forum, Vol. 2021) on SSRN.  Here is the abstract:

The COVID-19 crisis has demonstrated that Americans rely on certain for-profit corporations to supply the essentials of everyday life. Even though the government had assumed extraordinary responsibilities for the wellbeing of its citizens for the duration of the crisis, for-profit companies were deemed so essential to social functioning that workers were sent to keep them running despite the risk of infection with a deadly disease. If our society’s capacity to meet basic needs in a crisis is entirely dependent on the capacity of private corporations, it is necessary to critically evaluate the performance of the directors and officers who lead these companies, and to ask whether their pre-crisis decisions were made within an appropriate framework of incentives. Recent experience suggests good reasons to question whether our existing system of corporate governance has proven equal to the outsized role of key corporations. Various corporations were not prepared to operate safely at appropriate levels during a crisis, creating enormous economic and public health risks. These issues were at least plausibly caused by an over-emphasis on short-term profit maximization within a specific pre-crisis operating environment, and a failure to address the undiversifiable risks associated with a potential disruption. While external regulation and coordination by the government is a critical part of the solution to this problem, new corporate governance tools could play a valuable role in ensuring that directors and officers recognize and carry out a duty to build resilient organizations. This Article discusses one possible tool: a focused liability regime that would hold the directors and officers of corporations running essential businesses liable if they fail to prepare for crises.

Smith on Caregiving & Racial Justice

Charisa Kiyô Smith (CUNY School of Law) has posted From Empathy Gap to Reparations: An Analysis of Caregiving, Criminalization & Family Empowerment (Fordham Law Review, Vol. 90, 2022) on SSRN.  Here is the abstract:

America’s legacy of violent settler colonialism and racial capitalism reveals a misunderstood and neglected civil rights concern: the forced separation of families of color, and unwarranted state intrusion upon caregiving through criminalization and surveillance. The War on Drugs, the Opioid Crisis, and most recently the COVID-19 pandemic, are a few historical examples demonstrating the precariousness of our nation’s collective empathy well towards caregivers and our tattered social safety net. In fact, these instances illuminate what this paper coins an “empathy gap” in perception when the general public, policymakers, and the mainstream media view similarly situated families with different identities. Ironically, the COVID-19 pandemic presents both a tragic crisis and an unparalleled opportunity to reimagine the status quo for communities of color and society at large. Families and children deserve comprehensive transformation, resourced through abolition of carceral protection systems, restorative approaches, and true reparations for slavery.

This paper reconciles fragmented perspectives on family integrity and civil rights, applying empirical research about disparate treatment while engaging the framework of vulnerability theory. Ultimately, a paradigm shift is needed. Public health and socioeconomic wellbeing necessitate protection for marginalized families and innovation beyond the limits of law. Recognition of inherent vulnerability in the human condition is pivotal to achieving family empowerment, economic justice, and racial justice.

Pergami on the EU & Statute of Limitations Reform

Federico Pergami (Bocconi University - Department of Law) has posted Next Generation EU and the reform of statutes of limitation: old and new problems regarding the reasonable length of proceedings (KOINONIA 45, Napoli 2021) on SSRN.  Here is the abstract:

The essay, starting from the recent Cartabia reform on criminal trial, examines the late antique legislation of the Theodosian Code, with specific reference to the constitutions related to the reasonable lenght of proceedings, especially those of second degree, to be concluded within peremptory terms, in order to guarantee the celebration of an aequum iudicium. The importance of the terms for the length of proceedings is also confirmed by Justinian’s reforms.

Lordan on Legal Ontology

Thomas Lordan has posted Legal Ontology: Does 'The Law' Exist? on SSRN.  Here is the abstract:

People in all walks of life, but especially lawyers and judges, often refer to “the law.” But is “the law” something that exists? The paper considers that question, with special attention to the works of Eric Voegelin and Steven D. Smith, who each, in his own way, considered the question. The paper also seeks to illuminate the question by considering the current practice of law, law in the United States Supreme Court, law in prehistory and history, and other thinkers on law.

Kovvali on Essential Businesses and Shareholder Value

Aneil Kovvali (University of Chicago Law School) has posted Essential Businesses and Shareholder Value (University of Chicago Legal Forum, Vol. 2021) on SSRN.  Here is the abstract:

The COVID-19 crisis has demonstrated that Americans rely on certain for-profit corporations to supply the essentials of everyday life. Even though the government had assumed extraordinary responsibilities for the wellbeing of its citizens for the duration of the crisis, for-profit companies were deemed so essential to social functioning that workers were sent to keep them running despite the risk of infection with a deadly disease. If our society’s capacity to meet basic needs in a crisis is entirely dependent on the capacity of private corporations, it is necessary to critically evaluate the performance of the directors and officers who lead these companies, and to ask whether their pre-crisis decisions were made within an appropriate framework of incentives. Recent experience suggests good reasons to question whether our existing system of corporate governance has proven equal to the outsized role of key corporations. Various corporations were not prepared to operate safely at appropriate levels during a crisis, creating enormous economic and public health risks. These issues were at least plausibly caused by an over-emphasis on short-term profit maximization within a specific pre-crisis operating environment, and a failure to address the undiversifiable risks associated with a potential disruption. While external regulation and coordination by the government is a critical part of the solution to this problem, new corporate governance tools could play a valuable role in ensuring that directors and officers recognize and carry out a duty to build resilient organizations. This Article discusses one possible tool: a focused liability regime that would hold the directors and officers of corporations running essential businesses liable if they fail to prepare for crises.

Foohey & Sternberg on Credit Scoring

Pamela Foohey (Yeshiva University - Benjamin N. Cardozo School of Law) & Sara Sternberg Greene (Duke University School of Law) have posted Credit Scoring Duality (Law and Contemporary Problems, Vol. 58, Forthcoming 2022) on SSRN.  Here is the abstract:

Credit scoring is central to people’s financial growth and prosperity or financial decline and stagnation. People with a good credit score and accompanying credit report can buy opportunities to advance economically. The benefits they reap from their attractiveness to lenders and employers helps feed their future success. In contrast, people with a fair or poor credit score become stuck in cycle of high interest rates and costly loan terms, large required down payments, and denied applications for rentals, cell phone plans, and employment. Employers, service providers, lenders, and alternative financial service providers have begun to use alternative credit scoring models, which rely on data not typically tracked by the three major credit bureaus, such as income, rental history, and subscription services. Although touted as beneficial, the use of this alternative data does not necessarily make people more attractive because they perform below-average on many of the inputs. For instance, they earn lower salaries and have imperfect rental histories. Ultimately, most of the people with fair and poor scores, however calculated, find it nearly impossible to erase the blemishes that feed those scores. This essay, written as part of Two Americas symposium, details how the increasing reliance on credit scores has made this type of scoring integral to people’s access to the gates of economic citizenship. The increasing reliance on credit scoring has helped perpetuate and fuel household economic inequality. The essay concludes with a proposal for how to support people who lack the credit history or family assistance often needed to succeed in a financial world that depends on scoring.

Witte on "The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies," edited by Witte, et al.

John Witte (Emory University School of Law) has posted 'Introduction,' to John Witte, Jr., et al., eds., The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (“Introduction,” to John Witte, Jr., et al., eds., The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (Leipzig: Evangelische Verlagsanstalt GmbH, 2021), 15-30) on SSRN.  Here is the abstract:

This is an introduction to an interdisciplinary and international study of whether, how, and where laws (variously defined) teach values and shape moral character in late modern liberal societies. All sixteen authors of these studies recognize the essential value of state law in fostering peace, security, health, education, charity, trade, democracy, constitutionalism, justice, and human rights, among many other moral goods. But they also recognize the grave betrayals of and by law in supporting fascism, slavery, apartheid, genocide, persecution, violence, racism, and other forms of immorality and injustice. The authors thus call for state laws that set a basic civil morality of duty for society but also guarantee robust freedoms that protect private individuals and private groups to cultivate a higher morality of aspiration.

Highly recommended.

Skolnik on Precedent, Principles, & Presumptions

Terry Skolnik (University of Ottawa, Faculty of Law, Civil Law Section) has posted Precedent, Principles, and Presumptions ((2021) 54:3 UBC Law Review 935) on SSRN.  Here is the abstract:

Judges frequently resort to three adjudicative tools to decide cases: precedent, principles, and presumptions. First, courts consider precedent and draw analogies between past decisions and the case before them. Second, judges evaluate legal principles. They employ multi-factor balancing tests and frameworks to reconcile competing principles. Third, judges create presumptions that ease evidentiary burdens and provide default ways to resolve disputes. Although each of these three adjudicative tools appear distinct, they are not mutually exclusive. They overlap and interact with one another in an ongoing organic process that shapes the law’s evolution.

This article offers a novel account of the relationship among precedent, principles, and presumptions. It argues that these three adjudicative tools intersect with each other in important ways and demonstrates how they can correct one another’s respective deficiencies. It also shows that one particular adjudicative tool – presumptions – fulfils functions that theorists traditionally overlook.

Presumptions correct legal frameworks and multi-factor balancing tests that misfire, support principled asymmetries, promote access to justice, and shape choice architecture in adjudication. Drawing on the past several decades of Supreme Court of Canada jurisprudence in the area of public law, this article discusses why the Court is increasingly creating presumptions in the realms of criminal law, administrative law, and constitutional law.

Highly recommended.

Kyritsis on "Legal Directives and Practical Reasons" by Gur

Dimitrios Kyritsis (University of Essex) has posted Disposition Goes a Long Way: Review of N Gur, Legal Directives and Practical Reasons (OUP 2018) on SSRN.  Here is the abstract:

My chief aim in this comment is to interrogate a structural feature of Noam Gur's Legal Directives and Practical Reasons, namely the way it conceives of -and is affected by- the connection between the question about law’s practical difference, which Gur takes himself to be answering, and the inquiry into what makes something part of the law, which he treats as distinct and largely brackets in his analysis. It is fair to say that in recent years it is the latter inquiry that has received the most scholarly attention, and in this respect Gur offers a welcome and refreshing reframing of old problems. But, as I shall argue, keeping both inquiries in sight yields important philosophical benefits. Conversely, trying to explain law’s practical difference without coming clean on what one thinks about what makes something part of the law carries theoretical hazards, to which Gur’s theory is not immune.

Meskic on Lex Mercatoria & International Arbitration

Zlatan Meskic (Prince Sultan University) & Almir Gagula (University of Zenica) have posted Lex Mercatoria and Its Limits in International Arbitration (Nederlands Internationaal Privaatrecht 2020) on SSRN.  Here is the abstract:

This contribution aims to provide guidance on the usual steps an arbitrator undertakes when using lex mercatoria in international arbitration. The first step is the identification of rules that represent lex mercatoria and deserve such a qualification. It involves a discussion on the private international law analysis, especially absent a choice of law by the parties and its relationship to (potentially) applicable national law. The statistics presented in this paper show that parties in an overwhelming majority of cases choose national law as the applicable law and that lex mercatoria needs to co-exist with national law. Here, the joint use of national law and lex mercatoria is discussed in the context of the example of construction arbitration as the most common area of international arbitration practice. The growing popularity of certain legal solutions of lex mercatoria in procedural or substantive matters followed by a codification trend contribute to an effect of a rebuttable presumption in the fields of its application. This triggers the question as to how the right to be heard can be preserved, especially when the initiative for the use of lex mercatoria does not come from the parties, but from the arbitral panel. The lack of a strict judicial review of the applicable law used in arbitration gives the arbitrators the power to find the right balance between the guidance offered by lex mercatoria and parties’ expectations.

Smith on Non-Carceral Responses to Rape Culture

Charisa Kiyô Smith (CUNY School of Law) has posted At the Crossroads of Rape Culture: Non-Carceral Responses for #MeToo Era Youth (Ohio State Journal on Dispute Resolution, Forthcoming Spring 2022) on SSRN.  Here is the abstract:

Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness about sexual and gender-based violence (SGBV), the experiences of individuals under age 18 remain largely ignored, mishandled, and misunderstood. Remedies for SGBV among minors are likewise under-examined and ineffective, despite a crisis that cannot be understated. Failure to aptly address incidents of SGBV perpetuates cycles of oppression and presumes that the “rape culture” and “toxic masculinity” underlying frequent incidents of harm are inevitable. This author’s recent work critiqued the current criminal law paradigm for responding to SGBV among youth, created an interdisciplinary typology of instances of SGBV, and proposed a tiered response system defaulting to public health education and harm-reduction, which reserves justice system intrusion and state surveillance of youth as a last resort for the most severe situations. The present Article contends that noncarceral approaches, including alternative dispute resolution (ADR) interventions like restorative justice, incorporate notions of both individual and collective harm and remedy and enable impactful, real-time incident response in comparison with traumatizing criminal and juvenile system sanctions. Likewise, noncarceral frameworks like transformative justice incorporate far more than incident response and provide long-term solutions. Contrastingly, prevailing response systems—including adversarial legal proceedings, institutionally enforced statutory remedies, punitive informal interventions, and outright neglect of response—rely on the retributive paradigm and are failing youth. Much SGBV involves individuals perpetuating harms that they themselves and/or their families and communities of origin experienced, while youth culture is also largely reflective of society as a whole. Predominant modes of redress for SGBV among youth should thus serve the combined purposes of fostering behavior modification in individual wrongdoers, delivering survivor justice, addressing root causes of SGBV throughout society, and healing intergenerational wounds for long-term transformation in the digital age.

The empirical reality is stark. As many as 81% of students between grades 8 and 11 report experiencing school sexual harassment, and girls ages 12-17 have the highest rate of sexual assault victimization among other female populations. These figures are undoubtedly low as much victimization goes unreported—particularly among under protected populations like youths of color, males, and gender non-conforming or LGBTQIA+ youth. Engaging the consciousness of the #MeToo movement—one of newfound courage and tenacity among survivors—means envisioning more agency for young survivors and farther-reaching responses to SGBV. Court systems and public schools have failed to create appropriate, safe, formal modes of redress. The Trump Administration’s May 2020 revisions to Title IX rules increase the likelihood that young survivors will be less informed of their rights, more reluctant to disclose harassment and violence to educational authority figures, and less capable of proving actual abuse. The backdrop of the COVID-19 pandemic unfortunately further assures that institutional attention towards SGBV among youth may be temporarily diverted elsewhere.

Youth stand squarely at the crossroads of rape culture. They are impacted by the survivor-driven rhetoric of the #MeToo movement and statistically most victimized, and yet they are met with flailing response systems and communities that are apologist or ill-equipped at best, and hostile at worst. Scholars and advocates contest the suitability of ADR approaches for SGBV altogether, and lawmakers and communities lack tools to re-imagine solutions. However, when asked, youths themselves often seek real-time responses that exist outside the bounds of what legal systems and formal processes allow, while research confirms that adversarialism and carceral protection retraumatize survivors, shame accused offenders, fragment communities, and propagate over-incarceration. The status quo approach is unacceptable if it communicates to minors (and arguably other survivors) that their experiences of fear and harm are unimportant, that response systems do not require change, or that nothing will improve either way.

This article moves beyond the retributive binaries of victim and offender, harm and remedy, to prioritize survivor empowerment, youth development, reconciliation, prevention, and both individual and societal transformation. After discussing the reasons why noncarceral interventions for SGBV among youth are an essential next step, this article discusses such interventions in theory, history, and current practice, before recommending baseline best practices and replication. Although the fields of criminal justice, children’s rights, and family law consistently wrestle with the continuum of human maturity in setting legal boundaries and rules, young survivors and their peers may be best positioned to articulate their own needs and cultural status, to implement realistic problem-solving, and to foster capacity-building towards a more respectful, evolved, society.

Lawson on Fat Rights

Nicholas D. Lawson (Georgetown University Law Center) has posted Fat Rights, Public Health Oppression and Prejudice, and the 'Obesity Epidemic' on SSRN.  Here is the abstract:

The pervasiveness, frequency, and intensity of fat shaming, bullying, and harassment experienced by fat people is well-documented, and three quarters of the American public support antidiscrimination protections for fat people. Yet fat people remain unprotected from discrimination under federal and state law in all but two jurisdictions. This Essay traces these problems to the agendas of public health leaders, their organizations (the Centers for Disease Control and Prevention and the World Health Organization), and associated industries, who are fighting an “obesity epidemic.” It describes some of the fat-shaming strategies and persistent public-health-crisis framings, sensationalizing their results to attract news attention, boost their visibility, and attract more funding for their research. Their behaviors ensure profits for a $50 billion diet industry and a market for prescription weight loss drugs. A review of empirical evidence reveals, however, that almost all medical and environmental interventions for weight loss have little to no evidence of effectiveness. Environmental interventions are also opposed by the public, fat people, and especially fat rights advocates, who describe them as stigmatizing. The Essay then reveals and unpacks possible prejudices underlying the public health approach and suggests fat rights advocates ally with other groups affected by medical marginalization to end the public health oppression of fat people and put them in charge of the policies and systems purported to benefit them.

Kaye on Hate Speech Regulation

David Kaye (University of California, Irvine School of Law) has posted The Troubled World of Hate Speech Regulation (Journal of Human Rights, 2022, forthcoming) on SSRN.  Here is the abstract:

Three recent books enter the international debate over hate speech and human rights law, from a high-altitude affirmation of the underlying principles of freedom of expression and the contemporary headwinds it faces, to a specific evaluation in democratic transitions, to a legal and empirical assessment of how the speech crime of incitement to genocide has been muddled by international criminal tribunals. The work reviewed highlights the general confusion around the regulation of hate speech not just in the context of how values in speech and non-discrimination relate to one another in democratic societies. The confusion exists in the context of international criminal law as well. The essay also makes the case for growing commonality of norms in the international law governing civil and political rights and the elimination of all forms of racial discrimination.

Jipping & Smith on Stare Decisis in Constitutional Cases

Thomas Jipping (The Heritage Foundation) & Zack Smith (The Heritage Foundation) have posted Stare Decisis 101 on SSRN.  Here is the abstract:

Stare decisis is a Latin phrase meaning "to stand by things decided." In the judicial context, it is also known as the "doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation."

This Legal Memorandum examines stare decisis in the context that receives the most attention: Supreme Court cases that involve interpretations of the Constitution. Rather than address the substantive merit of various decisions, the focus here is on the Supreme Court's applications of principles or factors when deciding whether to overturn a constitutional precedent. To that end, it offers as examples that have been criticized by both liberals and conservatives.

Our analysis will look at the presumption of stare decisis, factors or criteria for rebutting that presumption, and some examples of the Supreme Court putting these principles into practice.

Duroy on Compliance with International law in Intelligence Matters

Sophie Duroy (KFG Berlin Potsdam Research Group 'The International Rule of Law: Rise or Decline?') has posted State Compliance with International law in Intelligence Matters: A Behavioural Approach (Duroy, S. (2021) State Compliance with International law in Intelligence Matters: A Behavioural Approach. Forthcoming in Journal of International Dispute Settlement) on SSRN.  Here is the abstract:

Decision-making in intelligence matters is often assumed to be an extra-legal process. This article however shows that the determining factor in compliance is a legal one: the likelihood of the state being held effectively accountable for a breach of international law. Through a behavioural analysis of state conduct in intelligence matters and the modelling of intelligence decision-making, the article demonstrates that state behaviour in intelligence matters can be explained and predicted. Taking compliance as the standard for assessing the effectiveness of regulation, this finding has strategic implications for the actors of the international legal order attempting to enhance compliance. Specifically, increasing the likelihood of effective accountability increases the probability of compliance and decreases the weight given to extra-legal and domestic considerations in decision-making, regardless of the activity and state considered. Hence, rather than focussing on the regulatory framework itself (international law), regulatory approaches aiming to enhance compliance should focus on improving accountability.

Chahongnao on Large-Scale Land Acquisitions in the Global South

Shimreisa Chahongnao (Jawaharlal Nehru University) has posted Customary Tenure and Large-Scale Land Acquisitions in the Global South: Issues and Redressal Approaches in Governance Policy (Academia Letters, Article 4074 (2021)) on SSRN.  Here is the abstract:

The emerging literature on large-scale land acquisitions (LSLAs) vis-à-vis customary land tenure in the global south focuses on whether they deliver promised benefits. It uncovers how constitutional provisions and statutes to protect the marginalised are realised at the national level. The trend of evaluation this essay picture is the tendency to instrumentalise the customary repertoire under neoliberal globalisation, trade liberalisation and modernisation process. The glorified land dispossession programmes that global capitalist accumulation with neo-colonial underpinnings pursue is akin to the extractive economy that does not shy away from coercive land grabs. The challenges of LSLAs to overcome the programme inefficiency requires bridging the utilitarian foundation of neo-liberalism with restored dignity of customary practices if short-term band-aid solutions are to be avoided.

Trueblood on "Deliberative Peace Referendums" by Levy, O’Flynn, & Kong

Leah Trueblood (Worcester College) Deliberative Peace Referendums (Book Review) (Forthcoming, International Journal of Constitutional Law) on SSRN.  Here is the abstract:

While referendums are often, and rightly, argued to be potentially divisive democratic processes, in Deliberative Peace Referendums, Levy, O’Flynn, and Kong put forward a hopeful, alternative vision of the relationship between referendums and conflict. The authors argue that, provided they are used in the right deliberative way(s), referendums can be tools for achieving conflict settlements and helping those settlements endure. Usefully, the book offers many design solutions to help achieve both ends. These design solutions speak to various types of conflict, including secession, indigenous-settler conflict, and group sovereignty. While much of the picture the authors offer is optimistic, helpful, and persuasive, it is unclear whether, on the authors' view, it is referendums that are doing the work to achieve conflict settlements and help those settlements to endure. Instead, the authors may have offered a compelling picture of deliberative democracy in which referendums play a small and neither necessary nor sufficient part. If the authors think referendums are 'the end of the beginning' of resolving conflicts, their analysis is persuasive. If, however, they think that referendums are the ‘beginning of the end,’ then their argument is less compelling. The epigraph of Amaral’s book Making Peace with Referendums effectively captures the difference between these two approaches. She begins her book by quoting American Diplomat Harold H. Saunders, who says that ‘treaties do not make peace, people do.’ While Deliberative Peace Referendums is an excellent contribution to the literature, it is not always clear on the authors’ view whether referendums make peace or people do.

Kaye on the Spyware State

David Kaye (University of California, Irvine School of Law) has posted The Spyware State and the Prospects for Accountability (Global Governance, Vol. 27, No.4, 2021, Forthcoming) on SSRN.  Here is the abstract:

Public attention has increasingly turned to the global spyware industry, with particular focus on Israel's NSO Group and its signature malware, Pegasus. Through extraordinary reporting by human rights researchers and journalists, we have come to understand how Pegasus is used to target journalists, human rights defenders, politicians, and others exercising their fundamental rights to freedom of expression, privacy, association, and more. This short paper lays out some policy directions mainly at the global level but also the domestic and the corporate, concluding with the question: is spyware, gi

Enman-Beechn on the Penalty Doctrine in Canada

J Enman-Beechn (University of Toronto, Faculty of Law) has posted The Penalty Doctrine in Canada ((2021) 99:3 Canadian Bar Review 504) on SSRN.  Here is the abstract:

The penalty doctrine, which denies enforcement to oppressive remedy clauses, is alive and well in Canada. I demonstrate this with a review of decisions from all common law provinces. I then defend two claims about the doctrine. First, the penalty doctrine fills a role that bargaining unconscionability—the combination of procedural and substantive unfairness—cannot. Because remedy clauses only trigger on the future contingency of breach, applying unconscionability to remedy clauses would require impracticable probabilistic calculations, which I describe. Second, the doctrine should distinguish between what I call “heaps” and “schemes”—that is, between clauses that seek to compensate for loss and clauses designed to uphold a punitive scheme without regard to loss. Heaps and schemes both need a special rule, but raise distinct policy issues.

Flanagan, de Almeida, Struchiner, & Hannikainen on Moral Appraisals & Legal Determinations

Brian Flanagan (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law), Guilherme F. C. F. de Almeida (Yale University), Noel Struchiner (PUC-Rio), & Ivar Hannikainen (University of Sheffield - Department of Philosophy; Department of Philosophy I; Pontifical Catholic University of Rio de Janeiro (PUC-Rio)) Moral Appraisals Guide Intuitive Legal Determinations on SSRN.  Here is the abstract:

Socialization demands the capacity to observe a plethora of private, legal, and institutional rules. To accomplish this, individuals must grasp rules’ meaning and infer the class of conduct each proscribes. Yet this basic account neglects important nuance in the way we reason about complex cases in which a rule’s literal or textualist interpretation conflicts with deeper values. In six studies (total N = 2541), we examined legal determinations through the lens of these cases. We found that moral appraisals—of both the rule’s value (Study 1) and the agent’s character (Studies 2-3)—shaped people’s application of rules, driving counter-literal legal determinations. These effects were stronger under time pressure and were weakened by the opportunity to reflect (Study 4). Our final studies explored the role of theory of mind: Textualist judgments arose when agents were described as cognizant of the rule’s text yet ignorant of its deeper purpose (Study 5). Meanwhile, the intuitive tendency toward counter-literal determinations was strongest when the rule’s purpose could be inferred from its text—pointing toward an influence of spontaneous mental state ascriptions (Studies 6a-6b). Together, our results elucidate the cognitive basis of legal reasoning: Intuitive legal determinations build on core competencies in moral cognition, including mental state and character inferences. In turn, cognitive control dampens these effects, promoting a broadly textualist response pattern.