Legal Theory Blog

Noorda on Special Legal Safeguards for Imprisonment

Hadassa Noorda (University of Amsterdam; New York University School of Law) has posted Imprisonment (Forthcoming, Criminal Law and Philosophy (2022)) on SSRN.  Here is the abstract:

Criminal law theorists have for the most part neglected the question of why imprisonment requires special legal safeguards for those targeted. The few scholars who have addressed this question have focused on how prison facilities restrict freedom of movement, control over one’s daily life, and access to particular human functioning, but they have ignored state measures that do not include confining individuals behind bars. I defend an alternative account: I argue that the use of prison facilities is part of a raft of state measures, which includes measures that have a relatively minor impact on individuals and others that are more severe. What matters, in deciding what legal safeguards individuals should have against what kinds of state imposition, is how severely a measure impacts on the normal life of those subjected to it. This impact-based approach enables us to decouple the concept of imprisonment from walls, locks, and political and social barriers, thereby highlighting atypical forms of imprisonment, such as open prisons, as well as potential forms of imprisonment to be employed outside of prison, including house arrest. For instance, a person confined to a prison facility can, to a certain extent, be free to take part in society, or a person subject to other state measures can reside at home but be constrained from carrying out a major part of her activities. The account I defend enables us to identify imprisoned individuals as well as those subjected to measures similar to imprisonment, which has potential consequences for their legal rights.

Very interesting and recommended.

Hesselink on European Private Law & Citizen Assemblies

Martijn W. Hesselink (European University Institute) has posted Private Law Subjects in Citizens’ Assemblies: On the Dialectics of Private and Public Autonomy in the EU on SSRN.  Here is the abstract:

This paper argues that European private law should ‘catch the deliberative wave’. In particular, it proposes the introduction of deliberative citizens’ assemblies and citizens’ panels in the context of EU private law making, especially its reform. The argument is grounded in the dialectic relationship between the private autonomy of persons as legal subjects (individual self-determination), and their public autonomy as citizens (collective self-determination). However, the paper also cautions for possible exclusionary effects of mini-publics constituted through sortition, which could end up undermining both individual and collective self-determination.

Rabkin on the Original Meaning of the Indian Commerce Clause

Jeremy Rabkin (George Mason University School of Law) has posted Commerce with the Indian Tribes: Original Meanings, Current Implications (Indiana Law Review, Forthcoming 2023) on SSRN.  Here is the abstract:

The Supreme Court’s 2022 ruling in Oklahoma v. Castro-Huerta defies much current precedent and practice, as four dissenters protested. But neither side grappled with the Constitution’s original meaning. Both text and early practice confirm that the federal power to regulate “commerce with the Indian tribes” was a different, more constrained power than the power to regulate “commerce among the states.” But as Nineteenth Century courts recognized, federal Indian law could also draw on powers inherent in national sovereignty – a wider but not unbounded source of authority and one which necessarily excluded interference from states. Even if tribal reservations are now seen as no more independent than states, they have good claims to protection under constitutional safeguards for the free flow of commerce – rather than being treated as colonial dependents of state governments. In contrast to the conformist and assimilationist policies imposed by federal authority in the decades after the Civil War, today’s America should be more receptive to the Constitution’s original view on Indian tribes – as separate nations within the larger American nation.

Highly recommended.

Grimmelmann & Mulligan on Data Property

James Grimmelmann (Cornell Law School; Cornell Tech) & Christina Mulligan (Brooklyn Law School) have posted Data Property (American University Law Review, Forthcoming) on SSRN.  Here is the abstract:

In this, the Information Age, people and businesses depend on data. From your family photos to Google’s search index, data has become one of society’s most important resources. But there is a gaping hole in the law’s treatment of data. If someone destroys your car, that is the tort of conversion and the law gives a remedy. But if someone deletes your data, it is far from clear that they have done you a legally actionable wrong. If you are lucky, and the data was stored on your own computer, you may be able to sue them for trespass to a tangible chattel. But property law does not recognize the intangible data itself as a thing that can be impaired or converted, even though it is the data that you care about, and not the medium on which it is stored. It's time to fix that.

This Article proposes, explains, and defends a system of property rights in data. On our theory, a person has possession of data when they control at least one copy of the data. A person who interferes with that possession can be liable, just as they can be liable for interference with possession of real property and tangible personal property. This treatment of data as an intangible thing that is instantiated in tangible copies coheres with the law’s treatment of information protected by intellectual property law. But importantly, it does not constitute an expansive new intellectual property right of the sort that scholars have warned against. Instead, a regime of data property fits comfortably into existing personal-property law, restoring a balanced and even treatment of the different kinds of things that matter for people’s lives and livelihoods.

Important, deeply interesting, and highly recommended.  Download it while it's hot!

Harrison on Federal Equity Power

John C. Harrison (University of Virginia School of Law) has posted Federal Judicial Power and Federal Equity Without Federal Equity Powers (97 Notre Dame L. Rev. 1911 (2022)) on SSRN.  Here is the abstract:

This Article discusses the ways in which the federal courts do and do not have equity powers. Article III courts have the judicial power, which enables them to apply the law, primary and remedial. Applicable remedial law often includes the law of equitable remedies, so the federal courts have the power and obligation to give remedies pursuant to equitable principles. The law of equitable remedies, written and unwritten, is external to the courts, not created by them, the same way written law is external to the courts. Because the unwritten law of equitable remedies is found largely in judicial practice, courts contribute to the development of that law by adding to the body of practice. That practice is a body of sub-constitutional law, subject to change by Congress when it exercises one of its enumerated powers. The Constitution neither adopts the law of equitable remedies nor authorizes the federal courts to make the principles of equity in the way a legislature creates statutory law. For that reason, the Constitution in important respects does not confer equitable powers on the courts. These conclusions have significant implications. First, because the Constitution does not adopt principles of equity, Framing-era equity practice is not binding law today. That practice, however, provides important information about Framing-era understandings of judicial power and cases and controversies. Second, when Congress changes the law of equitable remedies, it is not invading the judicial power and so is not subject to separation-of-powers limitations. When Congress has power to adopt the law of remedies but not the primary legal rule at issue, however, Congress must respect the distinction between primary and remedial law. Congress may not use its power over remedies to change primary rules it cannot change directly. Third, the absence of legislative-type power in the federal courts entails limits on their ability to innovate with respect to equitable remedies. In order to gain insight into the acceptable degree of judicial innovation, in contrast with innovation that only a legislature may adopt, the Article discusses several important Supreme Court cases that developed the law of equitable remedies in public law litigation.

Highly recommended.  Download it while it's hot!

Kirchner on Arctic Law

Stefan Kirchner (University of Lapland, Arctic Centre) has posted Present and Future Arctic Law on SSRN.  Here is the abstract:

Climate change has put the Arctic into the global spotlight. Unlike in the case of Antarctica, there is no single comprehensive international legal regime for the Arctic. As the world’s interest in the Arctic grows, the eight Arctic nations continue to engage in cooperation across political divides and attempt to remain at the forefront of shaping the international legal norms which govern the Arctic. This text looks at the emerging future of Arctic law, its globalization and normalization and the Arctic nations’ struggle for relevance. The readers are introduced to different facets of Arctic law and the author seeks to answer the questions which drive the development of Arctic law today: how will the international law of the Arctic look like in the future, and who will create it?

Schoenmaker, Schramade, & Winter on Models of Corporate Governance

Dirk Schoenmaker (Rotterdam School of Management, Erasmus University; Erasmus Research Institute of Management (ERIM); Centre for Economic Policy Research (CEPR)), Willem Schramade (RSM Erasmus University; Sustainable Finance Factory), & Jaap W. Winter (Vrije Universiteit Amsterdam; University of Amsterdam; Insead) have posted Corporate Governance Beyond the Shareholder and Stakeholder Model on SSRN.  Here is the abstract:

There is a heated debate on shareholder versus stakeholder governance. The stakeholder view recognises that companies have broader responsibilities to society than just making profit. But the lack of an integrated measure makes it difficult to hold management accountable against multiple goals. Moreover, the traditional stakeholder model tends to focus on stakeholders who are directly involved with the company, such as employees and customers, with only a minor role, if at all, for stakeholders without such a direct relation but who are affected by the company’s conduct, for example through ecological damage and climate change, including future stakeholders. This paper develops an integrated model of corporate governance including current and future stakeholders. It also presents an integrated measure for corporate value. The board can use this integrated value measure to balance the interests of the various stakeholders in a structured way. The new measure can also be used to hold the board accountable for their decisions. Finally, the paper examines the mechanisms to include the interests of the various stakeholders in the board.

Carney on the Second Amendment

William J. Carney (Emory University School of Law) has posted Is the Second Amendment Outdated or Misinterpreted? on SSRN.  Here is the abstract:

[This article addresses the problem of rising homicide rates in the United States. The centerpiece of the legal issue is Justice Scalia’s opinion in District of Columbia v. Heller, which declares that the Second Amendment’s right to bear arms is not limited by the qualifying language that a “well regulated militia ... [is] necessary to the security of a free state.” Instead he declares that it enshrines the right of every citizen to bear arms for personal self-defense.

This article does what Scalia did not do. It examines the history of organized militias, organized and controlled by states and local governments, and considered essential to protect sovereign states from being disarmed by a standing army of the federal government. In essence, it demonstrates that the original understanding of the Second Amendment was to protect states, not individual citizens.

It then proceeds to examine the possible results of a laboratory of the states in dealing with rising crime and homicide rates, examining both local studies and the experience of other nations. Even such drastic remedies as the death penalty are shown to reduce homicides overall.

Peterson on Constitutional History and Force

Farah Peterson (University of Chicago Law School) has posted Our Constitutionalism of Force (Columbia Law Review, Forthcoming) on SSRN.  Here is the abstract:

The Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how much freedom people deserved by how much blood they were willing to shed to obtain it. This constitutionalism of force survived ratification. Its legacy is a constitutional order that legitimizes the violent assertion of rights, especially by groups of armed white men—a legacy that showed itself in the Republican National Committee’s statement that the January 6 Insurrection amounted to “legitimate political discourse.” We must acknowledge this heritage and the pressure it imposes on the rule of law if we are to survive today’s authoritarian challenges to our democracy.

Highly recommended.

Amaya on Cardozo & Legal Uncertainty

Amalia Amaya (Edinburgh Law School) has posted Ambivalence, Judicial Craftmanship, and the Evolution of the Law: Variations on a Theme of Benjamin Cardozo (The Yale Journal of Law and Humanities (Forthcoming)) on SSRN.  Here is the abstract:

In The Nature of the Judicial Process, Cardozo identifies the embracement of uncertainty as a mark of judicial expertise. Such uncertainty, he claims, provides an occasion for the exercise of creative energy and the judicial development of the law. This paper critically examines and extends, in light of contemporary work on the philosophy and psychology of ambivalence, Cardozo’s views about the relevance of uncertainty in judicial decision making and its import for the evolution of the law. First, I will provide an account of the benefits of ambivalence in judicial decision-making, with a special focus on the links that there are between ambivalence and judicial creativity. Second, I will argue that there is a certain tension between Cardozo’s views on the important role that ambivalence plays in judicial decision-making and his view of law’s evolution as a streamlined, self-correcting, process. Two problems, i.e., the problem of hidden alternatives and the problem of unconceived alternatives, and the ever-present possibility of error, vividly bring to light the extent to which law’s progress may be hampered. Third, I will argue that for judges to recognize and resolve ambivalence in ways that positively contribute to the development of the law, there is a need to develop a judicial temperament that is neither skeptic nor dogmatic, vindicate imagination as a critical capacity for excellence in judging, and foster a judicial style (and, more broadly, a legal culture) that, in Cardozo’s spirit, frees itself from the quest for certainty.

Highly recommended.

Ziller on Role Splitting of EU Member State Executives and Federalism

Jacques Ziller (University of Pavia, Department of Political and Social Sciences; Université Paris 1 Panthéon-Sorbonne; European University Institute - Department of Law (LAW)) has posted Political accountability and Role Splitting of the Executive in the EU Member States (M. MORABITO and G. TUSSEAU (eds.), Regional Accountability and Executive Power in Europe London, Routledge, Forthcoming) on SSRN.  Here is the abstract:

The decision-making procedures of the European Union and many of its institutions, bodies and agencies operate in a mode of functional duplication (according to Georges Scelle's concept) of the holders and agents of the executive power of the Member States, who act as organs of the States and, at the same time, of the Union. The EU functions as a form of executive federalism similar to that of Germany, with all the problems of an interlocking political system (Fritz W. Scharpf's Politkverflechtung). The development of European integration has strengthened the national executive in relation to the parliament and local and regional authorities. But this strengthening has been accompanied by a blurring of lines of accountability which complicates the implementation of executive responsibility.

The paper includes the following sections:
1. Role splitting and European federalism
2. Role splitting putting the executives at the centre of political action
a. Strengthening the position of the executive at the expense of the parliament
i. Role Splitting the Council of the European Union and its preparatory bodies
ii. Role Splitting in the European Council
b. Strengthening central executives in relation to local and regional authorities
3. The reduced legibility of political action of member states’ executives
a. Role splitting and joint decision trap b. Sectorisation of policy making
i. Sectorisation as a consequence of transfer of competences
ii. Variety of policy coordination systems across the EU member states
c. The reduced autonomy of the executive.

The executive federalism based on role splitting that characterises the EU institutions and decision-making procedures and the resulting joint decision trap mechanism have a twofold impact: the institutions of the Union, especially the Commission, are perceived by citizens as a cumbersome machine that is remote from their concerns; the institutions of the member states, in particular the parliaments, but also the executives, are perceived as being weak in protecting citizens, and also far removed from their concerns. This is a phenomenon that needs to be understood and its reasons explained. Furthermore, the ultimate benefits of common decision making at European level need to be explained clearly and as simply as possible.

Legal Theory Lexicon: Adjudicative Facts versus Legislative Facts

Introduction

Facts are important to the outcome of legal disputes.  One of the things that law students may notice is that there are different kinds of factual disputes that arise in legal proceedings.  Some factual disputes are about events, occurrences, and transactions that are relevant to the particular dispute--the civil action or the criminal prosecution.  Other facts are more general and bear on questions about what the law is or should be--and not what happened in a particular case.  The distinction between these two kinds of facts is sometimes marked by using the labels "adjudicative facts" and "legislative facts."  This entry in the Legal Theory Lexicon provides a brief introduction to that idea.

Origins of the Distinction in Administrative Law

The use of the terms "adjudicative facts" and "legislative facts" is strongly associated with a 1942 article by Kenneth Culp Davis, the author of a famous treatise on administrative law.  Here is Culp's discussion of the distinction:

Through adjudication administrative agencies create law and determine policy, as well as make findings which concern only the parties to the specific case. Creation of law and determination of policy usually do not rest upon uninformed a priori judgments having only an ethical or a logical basis. Frequently agencies' choices of law or policy must depend on fact-finding. But the fact-finding process for such purposes is different from the process of finding facts which concern only the parties to a particular case and calls for different rules of evidence.

When an agency finds facts concerning immediate parties — what the parties did, what the circumstances were, what the background conditions were — the agency is performing an adjudicative function, and the facts may conveniently be called adjudicative facts. When an agency wrestles with a question of law or policy, it is acting legislatively, just as judges have created the common law through judicial legislation, and the facts which inform its legislative judgment may conveniently be denominated legislative facts. The distinction is important; the traditional rules of evidence are designed for adjudicative facts, and unnecessary confusion results from attempting to apply the traditional rules to legislative facts.

Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 402–03 (1942).

Davis makes the important point that adjudicative factfinding is governed by the rules of evidence--a formal system that governs the admissibility of evidence and by associated procedures for the questioning of witnesses and and the presentation of documentary and physical evidence.  But these rules are not observed in factfinding processes associated with lawmaking.  Congressional hearings and factfinding by administrative agencies are not governed by the rules of evidence.  Scientific evidence is introduced at trial via expert witnesses, but legislative and administrative factfinding can proceed in much less formal ways.

Constitutional Facts

David modeled his notion of legislative facts on the already-existing category of constitutional facts.  Such fact may be developed as part of the record at trial, but as Professor Davis notes in his article, such facts are frequently brought before a court by briefs that cite research that is published in scientific journals or monographs.  Such facts are outside the record and do not fit within the traditional categories of facts of which judges may take "judicial notice.'

Constitutional facts become important when courts apply tests that involve the scrutiny of means ends relationships and assessment of the importance of goals pursued by legislation or executive action.  For example, the strict scrutiny test requires a compelling state interesting and demonstration that the means employed by government action are necessary to achieve such ends.  The importance of ends and the fit between ends and means frequently depend on empirical questions--hence the need for constitutional factfinding.

Deference to Extrajudicial Findings of Legislative Facts

When courts assess legislative facts, they may need to take into account factfinding that has already been done by a legislature, executive official, or a regulatory agency.  This raises questions about "deference."  Should a court defer to factfinding done by the legislative or executive branch?  And what sort of deference is appropriate?  Rational basis review usually involves considerable deference.  At one extreme, the courts may defer to a legislature so long as the legislature could rationally have found facts that supported its decision, even if the legislature did not actually engage in factfinding and even if the great weight of the evidence does not support a legislative fact that is required for legislation to be upheld.  But if the standard of review is strict scrutiny, courts may give legislative factfinding no deference at all, striking down legislation if the court's view of the facts does not support legislative or executive action.

Legislative Facts and the Role of Judges

The importance of legislative facts may be related to conceptions of the proper role of judges.  For example, formalist may believe that constitutional and statutory interpretation should largely be driven by the "meaning" or communicative content of the text.  In the realm of common law, the formalist approach emphasizes adherence to precedent.  On the formalist conception of the judicial role, judges do not make law, minimizing the need for legislative factfinding by judges.  Realist or instrumentalist theories of judging are different: they do not draw a sharp line between law making and law application.  If the role of judges is to make policy, then judges may need to engage in substantial legislative factfinding.  In particular, the application of "balancing tests" may require judges to engage in legislative factfinding in order to determine the weight of the various interests to be balanced.

Conclusion

There is much more to be said about the distinction between adjudicative facts and legislative facts, but I hope that this Lexicon entry provides you with a sense of the conceptual content of the distinction and its implications.

Bibliography

• Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364 (1942).
• Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169 (2001).
• Brianne J. Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding, 61 Duke L.J. 1 (2011).

Related Lexicon Entries

• Legal Theory Lexicon 014: Fact and Value
• Legal Theory Lexicon 024: Balancing Tests
• Legal Theory Lexicon 043: Formalism and Instrumentalism

(First posted on October 16, 2022.)

Legal Theory Bookworm: "The Fight for Privacy" by Citron

The Legal Theory Bookworm recommends The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age by Danielle Keats Citron.  Here is the abstract:

The essential road map for understanding―and defending―your right to privacy in the twenty-first century.

Privacy is disappearing. From our sex lives to our workout routines, the details of our lives once relegated to pen and paper have joined the slipstream of new technology. As a MacArthur fellow and distinguished professor of law at the University of Virginia, acclaimed civil rights advocate Danielle Citron has spent decades working with lawmakers and stakeholders across the globe to protect what she calls intimate privacy―encompassing our bodies, health, gender, and relationships. When intimate privacy becomes data, corporations know exactly when to flash that ad for a new drug or pregnancy test. Social and political forces know how to manipulate what you think and who you trust, leveraging sensitive secrets and deepfake videos to ruin or silence opponents. And as new technologies invite new violations, people have power over one another like never before, from revenge porn to blackmail, attaching life-altering risks to growing up, dating online, or falling in love.

A masterful new look at privacy in the twenty-first century, The Fight for Privacy takes the focus off Silicon Valley moguls to investigate the price we pay as technology migrates deeper into every aspect of our lives: entering our bedrooms and our bathrooms and our midnight texts; our relationships with friends, family, lovers, and kids; and even our relationship with ourselves.

Drawing on in-depth interviews with victims, activists, and advocates, Citron brings this headline issue home for readers by weaving together visceral stories about the countless ways that corporate and individual violators exploit privacy loopholes. Exploring why the law has struggled to keep up, she reveals how our current system leaves victims―particularly women, LGBTQ+ people, and marginalized groups―shamed and powerless while perpetrators profit, warping cultural norms around the world.

Yet there is a solution to our toxic relationship with technology and privacy: fighting for intimate privacy as a civil right. Collectively, Citron argues, citizens, lawmakers, and corporations have the power to create a new reality where privacy is valued and people are protected as they embrace what technology offers. Introducing readers to the trailblazing work of advocates today, Citron urges readers to join the fight. Your intimate life shouldn’t be traded for profit or wielded against you for power: it belongs to you. With Citron as our guide, we can take back control of our data and build a better future for the next, ever more digital, generation.

And from the reviews:

"Timely and compelling…[The Fight for Privacy] is an informed, bracing call to action in defense of our private selves."
― Kirkus Reviews (starred review)

"Privacy is politics, and if we want it back we must fight for it. In this open-hearted and down-to-earth book, Danielle Keats Citron offers reasons for optimism among the ruins of our once-cherished privacy. Lawmakers and citizens alike, this book is for you."
― Shoshana Zuboff, author, The Age of Surveillance Capitalism and Professor Emeritus, Harvard Business School

"It’s so refreshing to read an argument for privacy that centers women. Devastating and urgent, this book could not be more timely."
― Caroline Criado Perez, author of Invisible Women

"A tour de force. Citron offers trenchant clarity and lucid hope for achieving justice in our digital future."
― Kate Manne, author of Entitled: How Male Privilege Hurts Women

"A crucial book for understanding the crisis of privacy invasion, and the unrelenting damage that comes from intimate, nonconsensual surveillance. If you care about anyone, anywhere, you should read this book."
― Safiya Noble, author of Algorithms of Oppression

"A terrific, though terrifying, exposé. This beautifully written book deserves a wide audience and hopefully will inspire needed meaningful change in the law."
― Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

"Danielle Keats Citron’s expert and engaging treatment of ‘technology-enabled privacy violations’ shows why victims, digital platforms, and legislators alike turn to her for advice and for fights to reclaim privacy morally, legally, and practically."
― Martha Minow, former dean, Harvard Law School

Download of the Week: "Public Law and Economics" by Cooter & Gilbert

The Download of the Week is Public Law and Economics by Robert D. Cooter & Michael D. Gilbert.  Here is the abstract:

This comprehensive textbook published by Oxford University Press applies economic analysis to public law. The economic analysis of law has revolutionized legal scholarship and teaching in the last half-century, but it has focused mostly on private law, business law, and criminal law. This book extends the analysis to fundamental topics in public law, such as the separation of government powers, regulation by agencies, constitutional rights, and elections. Every public law involves six fundamental processes of government: bargaining, voting, entrenching, delegating, adjudicating, and enforcing. The book devotes two chapters to each process, beginning with the economic theory and then applying the theory to a wide range of puzzles and problems in law. Each chapter concentrates on cases and legal doctrine, showing the relevance of economics to the work of lawyers and judges. Featuring lucid, accessible writing and engaging examples, the book addresses enduring topics in public law as well as modern controversies, including gerrymandering, voter identification laws, and qualified immunity for police. The book is available for free download under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence (CC BY-NC-ND 4.0).

Open source!  This is a major achievement.  Highly recommended.  Download it while it's hot!

Margolis on Police Unions and Reform

Carly Margolis has posted Targeting Police Unions, Rethinking Reform (N.Y.U. Review of Law and Social Change) on SSRN.  Here is the abstract:

Police unions are a powerful obstacle to reform and abolition movements alike. This article tracks the (re)emergence of a political strategy targeting police unions as a site of police reform and abolition amid the summer 2020 uprising. It takes Washington, D.C.’s Defund MPD (Metropolitan Police Department) movement as a case study on the successful targeting of police unions. The D.C. Defund movement imposed radical demands, achieved measurable restrictions on police union power, and, in doing so, revealed new possibilities for the role of police union contracts in divestment and community control. The D.C. Defund movement influenced the D.C. Council to pass legislation restricting the bargaining power of the D.C. Police Union and itself leveraged the police union contract as a site of transformation. By closely analyzing the course of the D.C. Defund movement’s campaign against a police union, this article elucidates the larger challenges posed by police unions and explores strategies for addressing them that have been previously overlooked.

Kordsiemon on the Dobbs Approach to Unenumerated Constitutional Rights

Taylor Kordsiemon (Kirton McConkie) has posted A Right to Marital Rape? The Immorality of the Dobbs Approach to Unenumerated Rights (12 HLRe 90 (2022)) on SSRN.  Here is the abstract:

When the Supreme Court abrogated abortion rights in Dobbs v. Jackson Women’s Health Organization, it reasoned that the right to abortion is neither found in the constitutional text nor “deeply rooted in this Nation’s history and tradition.” Turning to historical traditions when deciding which unenumerated rights qualify for constitutional protection is, like all decisions regarding interpretive methodology, a normative choice that requires moral justification. This Essay argues the Court’s choice to employ the particular analytical approach used in Dobbs lacks a credible normative foundation because it can lead to unacceptably immoral outcomes. Specifically, faithful adherence to Dobbs’ methodology could plausibly recognize a fundamental right to engage in marital rape and would almost certainly fail to recognize a right to defend oneself against marital rape. Any method of constitutional interpretation that yields such unjust and evil results is fundamentally flawed and should therefore be discarded. Therefore, the Supreme Court should reconsider its current approach for determining which rights are fundamental and reanalyze the abortion question using a morally sound methodology.

Fazlioglu on Bipartisan Support for Privacy Legislation in Congress

Müge Fazlioglu (International Association of Privacy Professionals (IAPP)) has posted Negotiating Privacy: Bipartisan Agreement on US Privacy Rights in the 117th Congress (IAPP White Paper 2022) on SSRN.  Here is the abstract:

For many years, the subject of U.S. privacy legislation has been one of interest for boards, companies, law and policymakers, industry groups, privacy advocates, academics, and many other stakeholders. Numerous proposals and drafts of federal legislation have circulated and as many events, symposia and hearings on Capitol Hill have been held. Yet, despite efforts over multiple sessions, members of Congress have still not reached legislative agreement on what privacy rights should be enshrined at the federal level.

This white paper examines the progress made in Congress toward bipartisan agreement on privacy rights over the current legislative session, analyzing the 18 bipartisan federal privacy bills (see Appendix) introduced in the 117th Congress.

As a complement to the IAPP “U.S. Federal Privacy Legislation Tracker,” which includes privacy-related bills within the current Congress, the focus in this analysis is limited to bills that have received support from both Democrats and Republicans. The aim is to understand why certain pieces of privacy legislation have broader support among lawmakers and how they differ from proposals that have received support from only one party.

The analysis divides the proposed legislation into several groups: 1. Those that focus on collection, use and sale of consumer data. 2. Those that relate to health (including COVID-19 and “vaccine passports”), financial or educational/children’s data. 3. Those that concern the Federal Trade Commission and its privacy enforcement mandate and authority. 4. Those that impose obligations or restrictions upon the collection and/or use of data by government entities or law enforcement agencies.

Simons on the Reasonable Person and Tort Theory

Kenneth W. Simons (University of California, Irvine School of Law) has posted The Hegemony of the Reasonable Person in Anglo- American Tort Law (Oxford studies in private law theory. Volume I, edited by Paul B. Miller and John Oberdiek, Oxford University Press, 2020) on SSRN.  Here is the abstract:

Tort law has increasingly employed the rubric of the reasonable person in a variety of doctrinal domains. Many jurisdictions have rejected a differentiation of landowner duties according to the status of the entrant as trespasser, licensee, or invitee, and substituted a ‘reasonable person’ test. Assumption of risk has been eliminated or greatly narrowed in favor of comparative fault, which asks simply whether the plaintiff failed to act as a reasonable person. The reasonable person plays a significant role even in intentional torts: apparent consent precludes liability when the defendant reasonably (though mistakenly) believes that plaintiff consented; putative self-defense precludes liability when the defendant reasonably (though mistakenly) believes facts that would establish that privilege; and offensive battery requires that the contact be offensive to a ‘reasonable’ sense of dignity. What explains this widespread use of ‘reasonable person’ tests? A desire for simplicity? The normative appeal of such a standard? Normative modesty about adopting a more controversial standard or about specifying more detailed rules? A concern to empower juries? Inertia or lazy thinking? Are such tests mainly descriptive (of ordinary conduct) or mainly idealized and prescriptive? In answering these questions, this paper argues that the hegemony of the reasonable person is sometimes a welcome but often an unwelcome development.

Highly recommended.

Cooter & Gilbert on Public Law and Economics

Robert D. Cooter (University of California, Berkeley - School of Law) & Michael D. Gilbert (University of Virginia School of Law) have posted Public Law and Economics on SSRN.  Here is the abstract:

This comprehensive textbook published by Oxford University Press applies economic analysis to public law. The economic analysis of law has revolutionized legal scholarship and teaching in the last half-century, but it has focused mostly on private law, business law, and criminal law. This book extends the analysis to fundamental topics in public law, such as the separation of government powers, regulation by agencies, constitutional rights, and elections. Every public law involves six fundamental processes of government: bargaining, voting, entrenching, delegating, adjudicating, and enforcing. The book devotes two chapters to each process, beginning with the economic theory and then applying the theory to a wide range of puzzles and problems in law. Each chapter concentrates on cases and legal doctrine, showing the relevance of economics to the work of lawyers and judges. Featuring lucid, accessible writing and engaging examples, the book addresses enduring topics in public law as well as modern controversies, including gerrymandering, voter identification laws, and qualified immunity for police. The book is available for free download under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence (CC BY-NC-ND 4.0).

Open source!  This is a major achievement.  Highly recommended.  Download it while it's hot!

Schütze & Haueis on Philosophy & Climate Change

Paul Schütze (University of Osnabrück) & Philipp Haueis (Bielefeld University) have posted Philosophy and the Climate Crisis: An Agenda for Change on SSRN.  Here is the abstract:

We are right in the middle of the climate crisis, and if we do not take adequate action by the end of the decade, the outlook is devastating. In the face of this all-pervasive crisis, we, as philosophers, need to confront the fact that direct and rapid action against a climate collapse appears to be the only way forward. In this article, we therefore pose demands on how academic philosophy should change in response to this reality. First, we argue that the climate crisis can function as a methodological framework for doing philosophy, or, put differently, as a lens through which philosophy engages with the world. Building on this, we suggest one way philosophy might adopt this lens: philosophers may align their work with the global climate movement, which, as we argue, is one of the promising agents pressing adequate climate action. Second, we contend that philosophers need to accelerate philosophy by overcoming long-established practices and institutional obstacles which prevent philosophical thought from adapting more quickly and being put to work in the right places at the right time. Third, we demand all in for climate action to transform all areas of philosophy. We are convinced that from metaphysics to philosophy of mind, all areas can contribute to the struggle against the climate crisis in a valuable way. Following these demands, we sketch an agenda for change by showing concrete steps to change philosophical research and teaching in light of the climate emergency.

Mullins on Lesser Evils, Permissions, and Justifying Reasons

Rob Mullins (The University of Queensland - T.C. Beirne School of Law) has posted Lesser Evils, Mere Permissions and Justifying Reasons in Law (New Essays on the Nature of Legal Reasoning (James Penner and Mark McBride, eds., Hart Publishing, 2022)) on SSRN.  Here is the abstract:

This chapter is a study of justificatory reasoning in law. I focus on 'lesser evils' defences, which many theorists claim are the paradigmatic case of justificatory reasoning in law. Some justifying reasons seem to generate permissions, rather than requirements. There are cases were we are permitted, but not required, to perform a justified act. It is difficult to offer a reason-based account of lesser evils justifications that does not collapse the distinction between the required and the permissible with respect to justified conduct. I will consider several prominent responses to the problem. I conclude by suggesting that none of these responses is adequate without the further stipulation that some reasons lack deontic or requiring force.

Very interesting and recommended.

Fleurke et al on the Anthropocene Thesis & Non-Anthropocentric Constitutionalism

Floor M. Fleurke, Michael C. Leach (Tilburg Law School), Hans Lindahl (Tilburg University), Phillip Paiement (Tilburg Law School), Marie-Catherine Petersmann, Han Somsen (Tilburg Law School) have posted Constitutionalizing in the Anthropocene on SSRN.  Here is the abstract:

The Anthropocene thesis, in its rejection of both the modernist separation between ‘humans’ and ‘nonhumans’ as well as its treatment of ‘humans’ as a singular global geophysical force, presents fundamental challenges to constitutional theory and practice. First, in terms of conceptual and foundational transformations, the Anthropocene provokes the reconceptualization of legal relations as never limited to human concerns, but always and already part of more-than-human collectives, in which both humans and nonhumans act with co-agency, in recognition of shared vulnerabilities and in relations premised on care. This reconceptualizing demands a new understanding of representational practices that could constitutionalize more-than-human relations as political and legal collectives. Second, emergent technologies such as genetic and climate engineering introduce fundamental questions about regulatory modalities available in the Anthropocene, and the role law plays in this regard. Such technologies have given rise to the possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth system processes to achieve pre-established regulatory goals. This possibility raises critical concerns about the remaining role for law in legitimizing and enabling such developments. Finally, the temporal dimensions of the Anthropocene thesis cast a critical light on law’s potential for driving radical transformations in (un)governance. In imagining future legal institutions capable of manifesting more-than-human constitutionalism, it is necessary to excavate the historical role that foundational legal principles and institutions – such as sovereignty and personhood – have had in facilitating exploitative relations within and beyond humans.

Epstein on Public Nuisance

Richard A. Epstein (New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School) has posted The Private Law Connections to Public Nuisance Law: Some Realism About Today's Intellectual Nominalism (Journal of Law, Economics and Policy, Vol. 17.2) on SSRN.  Here is the abstract:

Historically, the law of public nuisance was confined to cases where private parties blocked public roads or polluted public waters, thereby infringing on a right belonging to all citizens. In tandem with the identical provisions under private nuisance law, the appropriate remedies included monetary sanctions, injunctions and various orders. So understood, a consistent regime of public and private enforcement controlled against these wrongs. More recently, however, multiple attempts have been made to remove the limitations of public nuisance law so as to turn it into an all-purpose remedy that pays insufficient attention to the key features of this body of law. In so doing, too many modern cases have taken the position that the term nuisance has no real meaning at all, so that it can be turned to any substantive end of the moment. This position rests on a false if common claim about the necessary indeterminacy of all language.

This philosophical ploy has been invoked repeatedly to expand the conception of public, and indeed private, nuisances beyond their proper connotations. Thus far, this trend has been resisted in cases involving global warming, and, at least for the moment, firearms. But actions of this sort have had undeserved success in dealing with cases involving such important substances as lead paint and opioids. In virtually all these cases, an expanded public nuisance theory is used to sidestep key requirements in relevant areas of law, including reliance in misrepresentation cases and design or manufacturing defects in product liability cases. Stopping these tactics in public nuisance cases is part of a larger battle, for no system of constitutional limitations on government power can survive if language is never clear enough to explain the do’s and don’ts of public life.

Recommended.

Bohnhorst, Fitzgerald, & Soifer on the Independent State Legislature Doctrine

Mark Bohnhorst, Michael Fitzgerald (Saint Olaf College), & Aviam Soifer (University of Hawaii at Manoa - William S. Richardson School of Law) have posted Gaping Gaps in the History of the Independent State Legislature Doctrine: McPherson v. Blacker, Usurpation, and the Right of the People to Choose Their President (Mitchell Hamline Law Review, Forthcoming) on SSRN.  Here is the abstract:

The so-called Independent State Legislature Doctrine (ISLD) was the jurisprudential heart of the effort by former President Trump and allies to overturn the 2020 presidential election and was featured in the briefs in Texas v. Pennsylvania. The idea that state legislatures might have power to intervene against the popular vote for the Electoral College helped animate the January 6, 2021 attack on the Capitol.

Frighteningly, at the end of its last Term, the Supreme Court accepted review of a North Carolina case (Moore v. Harper) in which Republican Party legislators invoke the ISLD doctrine to contend that state legislators are at liberty to create entirely partisan congressional districts, freed from constraints in the North Carolina Constitution as interpreted by the state’s judiciary. A decision in favor of these legislators would directly implicate their parallel power to reject or ignore any state’s popular vote for President.

The ILSD theory rests on dubious dicta in McPherson v. Blacker (1892). McPherson concluded that "plenary power" over the appointment of presidential electors was "conceded" to state legislatures through "practical construction" of the Constitution. Yet, the Court excluded, with almost surgical precision, extensive historical evidence that shows that the legislative election of electors was not intended by the Framers nor by those who ratified the Constitution. Further, such legislative election authority was vigorously contested whenever it mattered—in the presidential elections in 1800, 1812, and 1824—and was soon thereafter abandoned in the face of the claim that this doctrine was a "usurpation.” The doctrine was more emphatically rejected following the Civil War, including through Section 2 of the Fourteenth Amendment. Nonetheless, Bush v. Gore repeated McPherson’s historical amnesia and provoked a doctrine that directly threatens such core democratic values as state court authority to interpret state constitutions and the power of the people to elect the President of the United States.

Owens on Raz's Political Philosophy

David Owens (Kings College London) has posted Joseph Raz as a Political Philosopher (The Modern Law Review, Forthcoming) on SSRN.  Here is the abstract:

This paper expounds the main themes of Raz's political and social philosophy.

This is a very useful summary of Raz's work in political philosophy.  Recommended.

Lundqvist on EU Constitutionalism and Standard Setting

Bjorn Lundqvist (Stockholm University - Faculty of Law) has posted EU Constitutionalism and Standards on SSRN.  Here is the abstract:

The constitutionality of the standard-setting procedure is still a hot topic. It is obvious that the CJEU and the EU legislature want to obtain the benefits of self-regulation when setting technical standards for the industry, while still upholding the possibility of judicial review of standards and standard-setting from constitutional, trade and competition law perspectives. The CJEU has recently in Richter and James Elliot revisited this sensitive issue and acknowledged the principles of, firstly a right to access, legal transparency and legal certainty to the extent that standard texts need to become public. Secondly, that the national judge should still retain the right to judge and analyse whether a standard in a specific case has been set in an appropriate manner and achieves the level of the essential requirements stipulated in the relevant legislative act. Elegantly, the CJEU did not in the recent cases scrap the New Approach. Standards that are referred to in legislative acts will still have a privileged status. Though the Court could have elaborated and broadened its analyses, the gist of the cases in reference to copyright is that the Court has found a solution that meets the need of both constitutional rigour and commercial realities.

Barondes on Red Flag Laws

Royce de Rohan Barondes (University of Missouri-Columbia School of Law) has posted Red-Flag Laws, Civilian Firearms Ownership and Measures of Freedom on SSRN.  Here is the abstract:

This essay provides context for an assessment of a part of the recently-enacted Bipartisan Safer Communities Act--federal legislation funding state red-flag procedures, which allow for seizures of firearms from persons who have not committed crimes.

First, it assesses Maryland’s experience during the first year of implementing these procedures. The essay details computations, extrapolating from Maryland’s first-year experience, showing that adoption of these statutes causes blameless persons to be subject to being killed by the government at a rate comparable to or in excess of the murder rate.

Second, the essay identifies an overlooked impact of this federal legislation. The legislation’s adoption will necessitate courts more favorably consider firearms rights reinstatement petitions filed by criminals with old convictions. That is because Congressional adoption of this legislation is inconsistent with the strongest premise on which courts have heretofore rejected those claims--that courts are not competent to assess whether individuals have a heightened propensity to commit firearms crimes.

Third, politicians admit adoption of the federal statute was a response to calls to “just do something.” As this essay reveals, the resulting legislative spasm arose in the context of public discourse that selectively deemphasizes events highlighting the harms arising from adoption of red-flag laws. Ultimately, of course, the constitutionality the legislative response will be subject to judicial review. Yet concerns that constitutional principles will yield to public pressure are as old as the country itself. James Madison in fact expressed some equivocation as to the desirability of a bill of rights on that basis.

In a paragraph of McDonald v. City of Chicago, 561 U.S. 742, 783 (2010), referenced in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111, 2126 n.3 (2022), the Supreme Court noted an absence of authority in which the Court has “refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.” Indeed, living in a society that respects civil rights involves risks that are eliminated by a police state.

Because federal funding of red-flag laws has been triggered by selective public discourse, it is desirable to illuminate, as a counterweight, the salient benefits of the constitutional provision that has been duly adopted and ought to obtain. This essay turns to one approach that may increase the salience of information relevant to contextualizing the judicial inquiry: that the benefits are capable of quantification. This essay expands on the empirical evidence in the law review literature finding a statistically significant relationship between civilian firearms ownership and indices of freedom--higher civilian firearms ownership in a country is associated with greater freedom.

Schultz on the Right of Publicity and Facial Recognition

Jason Schultz (New York University School of Law) has posted The Right of Publicity: A New Framework for Regulating Facial Recognition (Brooklyn Law Review, Forthcoming) on SSRN.  Here is the abstract:

For over a century, the right of publicity (ROP) has protected individuals from unwanted commercial exploitation of their images and identities. Originating around the turn of the Twentieth Century in response to the newest image-appropriation technologies of the time, including portrait photography, mass-production packaging, and a ubiquitous printing press, the ROP has continued to evolve along with each new wave of technologies that enable companies to exploit peoples’ images and identities for commercial gain. Over time, the ROP has protected individuals from misappropriation in photographs, films, advertisements, action figures, baseball cards, animatronic robots, video game avatars, and even digital resurrection in film sequels. Critically, as new technologies gained capacity for mass appropriation, the ROP expanded to protect against these practices.

The newest example of such a technology is facial recognition (FR). Facial recognition systems derive their primary economic value from commercially exploiting massive facial image databases filled with millions of individual likenesses and identities, often obtained without sufficient consent. Such appropriations go beyond mere acquisition, playing critical roles in training FR algorithms, matching identities to new images, and displaying results to users. Without the capacity to appropriate and commercially exploit these images and identities, most FR systems would fail to function as commercial products.

In this article, I develop a novel theory for how ROP claims could apply to FR systems and detail how their history and development, both statutory and common law, demonstrate their power to impose liability on entities that conduct mass image and identity appropriation, especially through innovative visual technologies. This provides a robust framework for FR regulation while at the same time balancing issues of informed consent and various public interest concerns, such as compatibility with copyright law and First Amendment-protected news reporting.

Yadav on Crypto Exchanges

Yesha Yadav (Vanderbilt University - Law School) has posted (Crypto) Exchanges as Regulators? on SSRN.  Here is the abstract:

The cryptocurrency market has proven notoriously challenging to regulate. Even as “crypto-winter” extinguished two trillion dollars in value, leaving ordinary savers wiped out and crypto-ventures collapsing, regulation has shown itself to be woefully under-protective to either mitigate risks ex ante or help cover the damage ex post. This Article makes the case for mandating self-regulation by crypto-exchanges as a first step toward comprehensive reform. It offers three rationales in support. Firstly, a mandate for self-regulation brings crypto-exchanges in line with traditional financial exchanges that have long supervised their market. This delegation is rationally rooted. By promising safety, exchanges can more fully perform their core economic function of enabling fluid trading, drawing users, helping them transact on predictable terms and building network effects as numbers grow in response to increasing efficiencies and integrity. This designation of exchange-as-regulator helps align the private self-interest of exchanges with the public good. Secondly, crypto-exchanges occupy a unique position from which to perform oversight. As a centralizing firm connected to an array of crypto-users, technologies and ventures, exchanges possess systemic perspective and economic power. Especially within an ecosystem comprised of more decentralized infrastructure, the highly centralized and connected set-up of most crypto-exchanges lowers their cost of delivering oversight and increases its coercive power. Finally, by bringing crypto-exchanges within the regulatory perimeter, a mandate for self-regulation creates a cost for failure. It forces venues to re-structure their governance and operational practices and places them – and, by extension the market – on a surer, more organized footing. In concluding, this Article lays out a roadmap for regulation to introduce a mandate for self-regulation in crypto-markets, setting out strategies to overcome administrative hold-up. While recognizing that self-regulation has shortcomings, it views crypto-exchange oversight as a first step toward comprehensive reform – one that is urgently needed to address the growing significance of the crypto-economy and its deeper entanglement within the financial system.

Fennell on Risk Control Services

Lee Anne Fennell (University of Chicago - Law School) The Gun and the Paperweight: Risk Control Services and Disservices (Journal of Tort Law (Forthcoming)) on SSRN.  Here is the abstract:

Suppose a legal rule makes it negligent to have a loaded gun out in the open in a place of business. Should a defendant who violated this rule by using a loaded gun as a paperweight be liable for his client’s broken toes when the gun falls onto her foot? Problems manifesting this basic structure have occupied scholars and Restatement reporters for decades. In this essay, I reframe untaken precautions as a bundle of risk control services, each of which counteracts a particular risky element, like “shooting capacity” or “heaviness” in the case of the gun. Tort law ought to induce actors to produce all, and only, the risk control services that are worth the cost of providing. Cashing out that prescription is tricky because precautions often jointly provide multiple risk mitigation services, and more than one precaution may meet the legal standard. Nonetheless, the task becomes tractable if we examine the cost structure of precautions—and, analogizing to break-even analysis for products, identify which risk control services contribute to rather than detract from a precaution’s bottom line. The risk services framework partially redeems but also revises harm-within-the-risk and negligence per se doctrines that limit negligence liability based on the type of danger or category of victim involved in a given accident. By enabling us to assess which ostensible risk control services are really societal disservices, this approach provides a firmer basis for calibrating the scope of liability.

Highly recommended.

Khan & Hanna on AI Dataset Accountability

Mehtab Khan (Yale Law School) & Alex Hanna (Distributed AI Research Institute) have posted The Subjects and Stages of AI Dataset Development: A Framework for Dataset Accountability (Forthcoming 19 Ohio St. Tech. L.J. (2023)) on SSRN.  Here is the abstract:

There has been increased attention toward the datasets that are used to train and build AI technologies from the computer science and social science research communities, but less from legal scholarship. Both Large-Scale Language Datasets (LSLDs) and Large-Scale Computer Vision Datasets (LSCVDs) have been at the forefront of such discussions, due to recent controversies involving the use of facial recognition technologies, and the discussion of the use of publicly-available text for the training of massive models which generate human-like text. Many of these datasets serve as “benchmarks” to develop models that are used both in academic and industry research, while others are used solely for training models. The process of developing LSLDs and LSCVDs is complex and contextual, involving dozens of decisions about what kinds of data to collect, label, and train a model on, as well as how to make the data available to other researchers. However, little attention has been paid to mapping and consolidating the legal issues that arise at different stages of this process: when the data is being collected, after the data is used to build and evaluate models and applications, and how that data is distributed more widely.

In this article, we offer four main contributions. First, we describe what kinds of objects these datasets are, how many different kinds exist, what types of modalities they encompass, and why they are important. Second, we provide more clarity about the stages of dataset development – a process that has thus far been subsumed within broader discussions about bias and discrimination – and the subjects who may be susceptible to harms at each point of development. Third, we provide a matrix of both the stages of dataset development and the subjects of dataset development, which traces the connections between stages and subjects. Fourth, we use this analysis to identify some basic legal issues that arise at the various stages in order to foster a better understanding of the dilemmas and tensions that arise at every stage. We situate our discussion within wider discussion of current debates and proposals related to algorithmic accountability. This paper fulfills an essential gap when it comes to comprehending the complicated landscape of legal issues connected to datasets and the gigantic AI models trained on them.

Bonardi on the Uyghur Genocide

Mia Bonardi has posted More Problems from Hell: The Uyghur Genocide (Journal of Global Rights and Organizations 2022) on SSRN.  Here is the abstract:

Samantha Power, former United States ("U.S.") Ambassador to the United Nations ("U.N."), won the Pulitzer Prize for her book "A Problem from Hell:" America and the Age of Genocide which documents and criticizes the U.S. government and the public's reaction and inaction to genocides perpetrated worldwide in the last century. This article seeks to be a continuation of "A Problem from Hell" by analyzing the U.S. government's inaction to the CCP's genocide against Uyghurs in the XUAR. In "A Problem from Hell," Ambassador Power divides cases of genocide into warning, recognition, response, and aftermath sections with different cases varying in their conformity to this structure. This article will similarly be divided and, likewise, it will vary in conforming to this structure, namely because the CCP is currently committing the Uyghur Genocide.

Both the CCP and the U.S. government are violating international law the CCP for committing the Uyghur Genocide and the U.S. government for failing "to prevent and to punish" it under Article I of the Convention. Since the CCP is currently committing the Uyghur Genocide, prevention entails "undertaking to prevent" future genocidal acts and punishing those that have been and are currently being perpetrated. Furthermore, if the U.S. government continues to fail to recognize and respond to the Uyghur Genocide, its inaction could amount to a punishable violation under Article III of the Convention of "Complicity in Genocide."

This article argues that jurisdiction over the CCP is possible in this case either via universal jurisdiction because genocide is a jus cogens norm or in the International Criminal Court ("ICC") using the 2018 Rohingya Ruling as precedent. Part I argues that, in the wake of the War on Terror, the global anti-terrorism conflation with anti-Islam catalyzed the Uyghur Genocide. Part I provides evidence that the CCP's goal in conflating religious extremism with terrorism and grouping Uyghurs in general with the Eastern Turkistan Islamic Movement is not to combat terrorism, but rather to solidify a Han Chinese dominance in the XUAR under the guise of combatting terrorism. Part I concludes by finding that the factor of a precedent of genocide in a place correlating to future genocide is met here because the CCP implemented similar policies to perpetrate genocide in Tibet, then in the XUAR, and once again in Tibet.

Part II concludes that while the U.S. public has the requisite information about the Uyghur Genocide available to it, it has yet to transform that information into knowledge because of the U.S. government's failure to formally recognize and condemn the genocide as such. Part II argues further that to effectively prevent and punish genocide, the U.S. government must officially label it as such.

Part III highlights several legislative efforts taken by the U.S. government in response to the Uyghur Genocide, only one becoming law. PartIII argues that these efforts prioritize the Phase One trade deal over preventing genocide and seemingly attempt to transfer the liability for being complicit from the U.S. government to U.S. companies. Still, Part III concludes by arguing that the U.S. government should enact relevant and effective legislation into law and expand its response to the Uyghur Genocide.

Part IV argues that there are still opportunities for the U.S. government to avoid further breaching its obligations erga omnes relevant to the Uyghur Genocide by, at a minimum, officially labeling the Uyghur Genocide as a genocide and enacting pertinent legislation. Part IV further argues that, as a world leader, other countries are watching what the U.S. government does in this case and if it fails to act, then others will find themselves justified in their inaction as well. Part IV concludes that if the U.S. government took a stance on and responded adequately to the Uyghur Genocide, it could improve international relations and pledges to international law by uniting a global community committed to the prevention and punishment of genocide.

Manian on Health Justice and Abortion

Maya Manian (American University - Washington College of Law) has posted A Health Justice Approach to Abortion on SSRN.  Here is the abstract:

The Supreme Court’s watershed decision in Dobbs v. Jackson Women’s Health Organization overturning fifty years of precedent protecting abortion rights has led to chaos in both the legal and public health landscapes. With Roe v. Wade eliminated, new legal frameworks are urgently needed to help regain access to comprehensive reproductive health care in the long term. Recently, a number of legal scholars have argued in favor of “medical civil rights”—that medicalizing rights could be used for advancing civil rights in the realms of anti-discrimination, housing, disability, and poverty rights. Medical civil rights uses the framework of health justice to talk about civil rights issues such as fair housing, race discrimination in policing, and poverty as public health issues. This Article is the first to extend the health justice framework to abortion. The health justice framework offers a new form of medicalization that could advance more equitable access to reproductive health care.

However, medicalization has a complicated history in the legal regulation of abortion. Although scholars do not all agree on a definition of the concept, medicalization is typically defined as the framing of a phenomenon as medical in nature and properly within the jurisdiction of medical experts in terms of decision-making authority. Feminist scholars have often viewed medicalization suspiciously, especially in the context of reproduction, since medicalization has tended to correspond with physician control over women’s bodies. In the last few decades of intense debate over abortion, the focus has been on abortion as a civil right, but the notion of abortion as a medical concern has been lost since Roe in part due to feminist push back against medicalizing abortion rights. As a result, abortion has been siloed from healthcare in the law and segregated from mainstream medicine. This Article challenges feminist legal scholars’ critiques of medicalization of abortion in the Supreme Court’s abortion jurisprudence. It threads together the literatures on medicalization and the burgeoning legal scholarship on medical civil rights and health justice to argue in favor of re-medicalizing abortion rights. Yet, unlike the medicalization of the past, a health justice approach to abortion offers the potential to advance more equitable access to abortion care in a post-Roe world.

This Article traces out medicalization and demedicalization in the Supreme Court’s abortion jurisprudence in order to understand what happens to access to and agency over abortion decisions on the ground when it is framed as medical in the law. Through this exploration of the history of medicalization in abortion law and by placing that history into conversation with the health justice framework, this Article makes three significant contributions. First, contrary to much theorizing about medicalization as expanding the jurisdiction of medicine to the detriment of other domains such as law, this Article shows how the early history of abortion law provides an empirical example of medicalization and criminalization not in conflict but working in concert to aggrandize both domains of law and medicine to the detriment of women and pregnant people.

Second, this Article demonstrates that whether abortion is medicalized or demedicalized in the law, women are never able to openly exercise decisional autonomy over abortion care. Instead, throughout the U.S. Supreme Court’s abortion jurisprudence, women’s abortion decisions are subject to oversight by either medical or legal authority. Nevertheless, after Roe v. Wade constitutionalized the issue, medicalizing abortion has tended to decrease legal restrictions on abortion care—likely because abortion decision-making is rhetorically sheltered within the authority of health care professionals and therefore less threatening to the gendered social order.

Finally, based on this analysis of medicalization in abortion law, this Article offers the health justice framework as a new path for understanding abortion as a medical civil right in a way that could advance more equitable access to abortion care. The health justice framework depends less on the sole professional authority of physicians and more on concerns about the social determinants of health and health equity at the population level. It accommodates medicalized framings by focusing on public health outcomes of abortion restrictions and aims for reducing health disparities through structural reforms and redistribution of resources rather than physician-controlled medical interventions. The health justice framework thus links together both medicalized (health-focused) and demedicalized (equality-focused) framings of abortion in a way that could advance health equity in reproductive health care. Re-medicalizing abortion through a health justice lens may provide strategic benefits in political and social climates hostile to abortion, especially in a post-Roe world.

Knox & Curfman on the Humira Patents

Ryan Knox (Harvard-MIT Center for Regulatory Science; Yale Law School) & Gregory Curfman (American Medical Association) have posted The Humira Patent Thicket, the Noerr-Pennington Doctrine, and Antitrust's Patent Problem on SSRN.  Here is the abstract:

Since its approval by the U.S. Food and Drug Administration (FDA) in 2002, the drug Humira® (adalimumab) has been one of the best-selling drugs in the U.S. and around the world. In 2021 alone, Humira generated $20.7 billion in revenue for its manufacturer, AbbVie, Inc. Humira is also very expensive, costing patients approximately $78 000 per year, a price which AbbVie has continued to increase year after year. This is particularly unaffordable as Humira is used to treat many chronic conditions – including rheumatoid arthritis, Crohn’s disease, and ulcerative colitis – which require patients to take Humira for extended periods of time.

Humira remains a high-priced drug today even though its core patent (patent ‘382) expired in 2016. Typically, expiration of the core patent on a biologic will allow entry of biosimilars into the market, which will result in a substantial price reduction, but this has not yet happened with Humira.

The explanation for this lack of competitive entry is that AbbVie was granted many additional (late-stage) patents on Humira, including patents on methods for manufacturing, its formulation, and potential future formulations. AbbVie applied for approximately 247 patents, of which 132 were granted, creating a “patent thicket” protecting Humira from competition until 2037 (when the last patent will expire). Notably, 90 percent of these patent filings were after Humira was already on the market, and almost half were filed in 2014 or later, in advance of the expiration of its core patent ‘382.

With this extensive patent protection, it became virtually impossible for biosimilar companies to gain approval to enter the market without potentially infringing one or more of the Humira patents. Instead of prolonging expensive litigation claiming that Humira’s patents were not infringed by the biosimilar application, virtually all the biosimilar companies settled with AbbVie prior to market entry. These settlements permit the biosimilars to enter the U.S. market early in 2023 – prior to the expiration of the last patent in 2037 – but require payment of royalties to AbbVie for a period after market entry. Some settlements also allow biosimilar companies to enter the European market, the earliest in October 2018.

Hedden-Nicely on Worcester v. Georgia

Dylan Hedden-Nicely (University of Idaho, College of Law) has posted The Reports of My Death Are Greatly Exaggerated: The Continued Vitality of Worcester v. Georgia (Forthcoming, Southwestern University Law Review, Vol. 51, No. 2, 2023) on SSRN.  Here is the abstract:

Rumors abound among the academy, practitioners, and the judiciary about the death of Worcester v. Georgia since the Court's recent decision in Oklahoma v. Castro-Huerta. The misunderstanding is compounded by those that fail to take the time necessary to appreciate the rich nuance of Chief Justice John Marshall’s decision or in the subtle ways the Court has since modified its holding from Worcester. However, the importance of this case, which is integral to our entire system of federal Indian law, to major components of our constitutional system, as well as to our claim to leader in the human rights arena, mandates we proceed with caution and demand precision in its treatment. We cannot presume the abrogation of such a significant case based on veiled rhetoric that stitches together dicta built upon dicta. Instead, we should proceed by acknowledging the broad scope of Worcester’s original holding and carefully examining where and how the Supreme Court has since circumscribed its breadth.

In furtherance of that call, this paper focusses on the Court’s Indian law jurisprudence around the middle of the twentieth century to provide a clearer picture of how the Court has treated Worcester in the modern era and the ways in which it has been limited. That analysis leads to the inescapable conclusion that although the Court has abandoned Worcester’s categorical prohibition on state jurisdiction in Indian country, “the broad principles of that decision came to be accepted as law.” Accordingly, until such time as the Court “openly avow[s]” its intent to overrule Worcester, we must remain faithful to its narrow authorization of state power in Indian country, as well as its broad recognition of tribal sovereignty and federal primacy over the relationship with tribal nations.

Recommended.

Samaha on Bruen

Adam M. Samaha (New York University School of Law) has posted Is Bruen Constitutional? On the Methodology that Saved Most Gun Licensing (97 NYU L. Rev. Online __ (2022 Forthcoming)) on SSRN.  Here is the abstract:

Last Term, the U.S. Supreme Court decided a significant Second Amendment case after more than a decade of waiting. The Court's majority coalition attempted to prevent judges from using deferential means-ends scrutiny, and redirect their attention to enacted text, old examples, and analogies thereto. Yet the Court both condemned outlier "may-issue" firearm licensing and preserved popular "shall-issue" licensing. That split result seems incompatible with some of the majority's surface-level methodological commitments. Actually, to craft its holding, the majority deployed a wider range of considerations than text, history, and analogy, even apart from any extra-legal policy preferences that might have mattered. Such inclusiveness is typical in modern constitutional adjudication, of course. But as much as any other, this case raises hard questions about which of the apparently legal considerations that are used to decide constitutional cases are themselves "constitutional" and which are not, along with how to understand the relationship between them. Perhaps "constitutional considerations" are so inclusive as to be not so special, or else "non-constitutional considerations" are no less supreme than their companions. Dilemmas appear either way, and for us all.

Highly recommended.  Download it while it's hot!

Tillman on Legislative Officer Succession Provisions

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted A Defense of the Legislative 'Officer' Succession Provisions (91 Fordham L. Rev. Online (forth. circa Oct. 2022)) on SSRN.  Here is the abstract:

I am going to try to reframe the issue very slightly. One way of looking at the issue is: What were the Framers trying to fashion when they drafted the Presidential Succession Clause? What were they hoping to achieve? Or, another way of looking at the question is: What should any of us want to achieve by a presidential succession regime?

It strikes me that a working presidential succession model has to have three characteristics: it has to produce a timely result; it has to have a clearly identifiable successor; and it has to be legally and recognizably valid, and in the sense used here, constitutionally valid is part of that. What we have now is a statutory legislative officer succession regime, which was also part of what was the (presumptive) original legislative officer succession statutory regime. The chief alternative was what we had in the 1886 statute, and that is Cabinet officer succession. I would like to compare the two models.

Does Cabinet officer succession meet the three goals I outlined before? I would say the answer to that is “no.” Cabinet succession is a fixed list. If the entire membership of that fixed list is decapitated by war, or a pandemic, or otherwise, then you do not have a successor, and that is the end of the whole ballgame. In such circumstances, you do not have anyone constitutionally and otherwise legally valid to succeed.

The problem cannot be corrected once it occurs. A fixed list requires a fix or an amendment. That means a new statute. A statute requires a president and that is the whole problem we have. Ex hypothesi, we do not have a president. Cabinet succession risks the end of the system, and it puts it beyond judicial resolution because there would not be a situation of competing heirs with competing claims, there would be no heir at all.

What about legislative officer succession? Does it meet the three goals I outlined before? The answer is, “yes,” it does. It is not fixed. It can be expanded, not only expanded, but the list can be expanded without a statute and without a president. There is always a House and Senate in being, and if the presiding officer dies, then each of the two houses can just elect, by simple majority, a new presiding officer, and that solves the problem. If the entire membership were to be decapitated, then the Senate can be quickly reconstituted by gubernatorial appointments, and the House can have speedy ad hoc by-elections under well established rules. Again, we could get a new presiding officer immediately or in fairly quick order. There is always going to be a legitimate heir with legislative officer succession, and if there is not one on hand, one can be quickly arranged.

Highly recommended.