Legal Theory Blog

Gedicks on Barclay on Coase on the Third Party Harm Doctrine & Religious Accomodation

Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted Coase and Accommodation: A Reply (Emory Law Journal, Vol. 71, Forthcoming 2022) on SSRN.  Here is the abstract:

Written for a Festschrift in honor of Michael Perry, this essay responds to the argument that the Coase theorem refutes the third-party harm doctrine, which holds that the Establishment Clause prohibits any religious accommodation imposing material burdens (“harms”) on those who derive no benefit from the accommodation because they do not engage in the exempted practice (“third parties”). In economic terms, the third-party harm doctrine prohibits negative externalities created by religious accommodations which shift material costs of practicing the accommodated religion to a relatively small number of third parties who practice a different religion or none at all.

Enter Coase, whose famous article, The Problem of Social Cost, argued that negative externalities associated with economic production are reciprocal. Coase famously observed that when transaction costs are zero, persons engaged in competing economic activities will bargain their way to the economically efficient mix of those activities, regardless of where the legal system places liability for externalities.

Invoking Coase, religious accommodationists, notably Professor Stephanie Barclay, have attacked the third-party harm doctrine, arguing that negative externalities from religious accommodations do not justify their denial because externalized harms also flow in the other direction. Accommodations allow believers to externalize the costs of practicing their religion onto third parties, the argument goes, but without accommodation, those third parties are permitted to externalize the costs of living out their differing beliefs onto the believers seeking accommodation. Barclay argues that harms to third parties from religious accommodations cannot ground the third-party harm doctrine, because those very third parties are reciprocally harming those who seek accommodations.

Application of the Coase theorem to religious accommodations is ill-conceived on both economic and ethical grounds. It fails on its own economic premises, which generate complex puzzles about value judgments, bargaining, and government intervention to which Barclay offers no solution. But worse, she leaves the ethical question unanswered: how can a government that guarantees its citizens religious equality justify actions that force some citizens to pay for the religious practices of others? The third-party harm doctrine rests on powerful ethical grounds, while accommodationists have yet to articulate a plausible normative theory which justifies shifting the costs of practicing a religion from those who believe it to those who don’t.

Recommended.

Schwartz on Madison on the General Welfare Clause

David S. Schwartz (University of Wisconsin Law School) has posted Mr. Madison's War on the General Welfare Clause on SSRN.  Here is the abstract:

The General Welfare Clause of Article I, section 8, clause 1 of the Constitution ("Clause 1"), though ambiguous, is most naturally read to grant Congress the power to "provide for ¦ the general welfare""that is, to legislate on all national matters. James Madison understood this and recognized that this "general welfare interpretation" of Clause 1 presented a major textual obstacle to his tendentious "enumerationist" interpretation of federal powers: that the "the essential characteristic" of the Constitution was to grant only limited enumerated powers to the federal government. Madison therefore waged a 50-year campaign to render the General Welfare Clause "harmless," as an essential element of his broader project to win his preferred enumerationist interpretation and erase the nationalist interpretations of his one-time Federalist allies. Madison achieved a partial victory in this political struggle for constitutional meaning, by taming the General Welfare Clause and establishing enumerationism as an ideology to which we pay continued lip service. But his arguments against the general welfare interpretation, based primarily on text and Framers' intent, were circular, fallacious, or disingenuous. The weakness of Madison's arguments on this critical issue of federal power may account for his puzzling drift toward embracing "compact theory""the view that states, and not the sovereign people of the United States, are the true parties to the Constitution. Madison's war on the General Welfare Clause casts doubt on the practice of treating his partisan views on enumerationism as authoritative statements of the Constitution's original meaning.

Highly recommended.

Berman on Proportionality

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Proportionality, Constraint, and Culpability (Criminal Law & Philosophy, Vol. 15, p. 373, 2021) on SSRN.  Here is the abstract:

Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones. This essay proposes that these differences cannot be successfully adjudicated, and one candidate proportionality principle preferred over its rivals, in the abstract; a proportionality principle only makes sense as an integrated part of a more complete justificatory theory of criminal punishment. It then sketches a proportionality principle that best fits the responsibility-constrained pluralist theories of criminal punishment that currently predominate. The proportionality principle it favors provides that punishments should not be disproportionately severe, in noncomparative terms, relative to an agent’s culpability in relation to their wrongdoing.

Highly recommended.

Shaffer & Puig on International Economic Law and Interdisciplinarity

Gregory Shaffer (University of California, Irvine School of Law) & Sergio Puig (University of Arizona - James E. Rogers College of Law) have posted Interdisciplinarity and International Economic Law (Elgar Encyclopedia on International Economic Law, 2nd ed., eds. Thomas Cottier & Krista Nadakavukuran Schefer), forthcoming, 2022) on SSRN.  Here is the abstract:

As the international economic law field developed and institutionalized during the 1990s and 2000s, interdisciplinary work on the subject proliferated. Many legal scholars turned to disciplinary methods beyond the traditional study of doctrine, constituting part of a “new legal realist” turn in scholarship. This essay addresses interdisciplinary work on international economic law by explaining the use of different methods within disciplines and giving examples of different substantive areas. Such work casts important light on how international economic law is made, why it is made, and the conditions under which it has effects.

Interesting and recommended.

Sanderson on Postmodern Critiques of Empiricism & Facts in Judicial Decision-Making

Harry Sanderson (Brasenose College Oxford) has posted Postmodernism and Judicial Notice: How Common Is Common Knowledge? (Alternative Law Journal 2021) on SSRN.  Here is the abstract:

This article considers how postmodernist thought can illuminate the doctrine of judicial notice. Specifically, it considers how postmodernist critiques of empiricism have challenged the idea of ‘indisputable’ facts which inform judicial decision-making. It argues that, while the practical realities of judicial administration must be borne in mind, increased sensitivity to the arbitrary nature of notorious facts will lead to more accountable decision-making.

Legal Theory Lexicon: Legal Pragmatism

Introduction

Back in the day (by which I mean the mid-70s through the mid-90s) big normative theories were all the rage in the legal academy.  It's hard to be sure, but one suspects that it started with Rawls: when A Theory of Justice hit the legal academy, it produced a dramatic shift in the practice of normative legal argument in the academy (and even had ripples in legal practice).  Rawls's big normative theory was "justice as fairness" with two famous principles, the liberty principle and the difference principle supported by a complex argument employing ideas like the original position, the veil of ignorance, and reflective equilibrium.  From Rawls, it was only a hop, skip, and jump to a variety of other theories drawn from moral and political philosophy--Kantian deontology, utilitarianism, welfarism, and other forms of consequentialism, Nozick's libertarainism, civic replublicanism, and on and on and on.

Ronald Dworkin played a key role in this movement with his famous distinction between the criteria of "fit" and "justification."  When two or more views of the law have sufficient "fit" with the cases, statutes, and other legal materials, Dworkin argued, hard cases must be resolved by asking which view accords with the best justification for the law.  So if there are two or more interpretations of the equal protection clause that fit the text and the cases, we should choose the interpretation that accords with our best theory of equality--and that is likely to be a big normative theory.

Indeed, there was a time when those in the know, the cognoscenti of the legal academy, subscribed to what was sometimes called the "theory of the month club."  But something became quite clear as the years became decades: there were no winners in the debates between and among the advocates of big normative theories.  Skirmishes and battles were won and lost, but there were no declarations of victory, surrenders, or peace treaties in the theory wars.

So it was probably inevitable that there should be some sort of reaction--an antitheoretical counterrevolution.  And there was--or rather, there were several reactions.  One move was away from the normative altogether and towards positive law and economics and empirical legal studies.  Another move was away from abstract theories and towards contextual approaches to feminist legal theory and critical race theory.  And yet another move was to pragmatism--a term that resonates with both the heritage of American philosophical pragmatism (Pierce, James, and Dewey) and the appeal of common sense in its particularly lawyerly form--the preoccupation with the practical.

This entry in the Legal Theory Lexicon provides an introduction to "legal pragmatism" for law students, especially first-year law students, with an interest in legal theory.  As always, the Lexicon provides a "quick and dirty" introduction to a topic on which whole articles and books can and have been written.

Philosophical Pragmatism 

Legal pragmatism is related to (but distinct from) philosophical pragmatism.  Pragmatism is usually associated with three American philosophers--Charles Sanders Pierce (pronounced "purse"), William James, and John Dewey.  Attempting to define a conceptual core of philosophical pragmatism is an enterprise fraught with peril--the major pragmatists disagreed among themselves and there never was a "pragmatism program" with a set of common tenets or principles.  One idea that is associated with pragmatism is the notion that beliefs are neither true nor false, but instead are helpful or unhelpful for the accomplishment of goals or the success of actions.  Another notion is the idea that "truth" is a function of practices of verification (the making and testing of predictions).

The following passage from William James's Pragmatism is both famous and gives the flavor (if not the philosophical substance) of philosophical pragmatism:

Pragmatism asks its usual question. "Grant an idea or belief to be true," it says, "what concrete difference will its being true make in anyone's actual life? How will the truth be realized? What experiences will be different from those which would obtain if the belief were false? What, in short, is the truth's cash-value in experiential terms?"

William James, Pragmatism (1907).

Legal Pragmatism: Three Ideas 

As you might expect, legal pragmatism focuses on neither the theory of truth nor the theory of meaning and is instead directed at the normative and the role of normative theory in legal practice.  There are many ways in which we might approach this relationship.  Let's focus on three ideas that illuminate legal pragmatism: (1) the idea of practical judgment, (2) the idea of particularism, and (3) the notion of antitheory.

Practical Judgment  One way to think about legal pragmatism begins with the distinction between "practical judgment" (and the allied notion of "practical wisdom") and "theoretical judgment."  No one doubts that legal practice involves "practical judgment."  Judges and lawyers cannot limit their activity to the theoretical realm.  The decision of a case is always contextual--conditioned by a history of facts and by the concrete consequences that attend to a decision.  Legal pragmatism emphasizes the idea that practical judgment is an ineliminable part of legal reasoning and may even make the stronger claim that the practical trumps the theoretical if the two are in conflict.

Particularism  Another way to approach legal pragmatism is via the an idea that is sometimes called "the priority of the particular."  This phrase is shorthand for the assertion that judgments (or intuitions or considered judgments) about particular cases have priority over theoretical judgments about broad classes or categories of cases.  What does "priority" mean in this context?  One answer to this question is that the priority of the particular means that our judgments about particular cases are firmer, more grounded, and less subject to revision than are our beliefs about theory.  In other words, when a theory collides with a firmly held belief about what is right or wrong in a particular case, it is the theory and not the judgment about the case that will have to give way.

Antitheory (or Antifoundationalism)  And a final way to approach legal pragmatism is based on the notion that legal pragmatism is anitheoretical (or antifoundational).  Let me back up a bit to explain this point.  Some philosophers are suspicious of "big" "top down" normative theories generally, and there are "antitheoretical" positions in moral and political philosophy.  What does it mean to be antitheoretical?  One formulation expresses opposition to deductive systems--to be antitheoretical is to be opposed to a method that begins with axioms and then proceeds to deduce the theorems and corollaries that guide normative practice.  Another formulation uses "top down" and "bottom up" as metaphors.  Being antitheoretical is being against "top down" construction of legal arguments that move from abstract and general propositions to conclusions about particular cases.  The alternative approach is "bottom up," starting with judgments about particular cases and ending with "low level" principles that are more concrete and contextual than abstract and general.

Pragmatism and Pluralism

Another strand of legal pragmatism is associated with pluralism in legal theory.  The most fully developed form of theoretical pluralism of which I am aware is constitutional pluralism: this approach is strongly associated with the work of Phillip Bobbitt, who argued that constitutional norms are made true or valid by the modalities of constitutional discourse, including text, history, structure, precedent, and so forth.  Not all pluralists are pragmatists, but some pragmatist seem to be pluralists.  The central idea of this version of legal pragmatism is that no single theory (e.g., textualism, purposivism, intentionalism in the statutory realm) should govern across the board.  Instead, judges should pick the theoretical perspective that will produce consequences for the issue at hand.  Thus, a judge might decide to adopt a textualist approach to some constitutional or statutory provisions, but adopt a purposivist or intentionalist approach to others.

Ad Hoc Legal Pragmatism

So far, I've tried to get at what I think is the core conceptual content of legal pragmatism--in its best and most intellectually defensible forms.  But there is another version of "legal pragmatism" that deserves some discussion.  Sometimes, the phrase "legal pragmatism" is used in a very casual way as a kind of evasion or escape from serious objections.  For example, someone might make a series of normative arguments that rest on inconsistent theoretical premises--affirming some form of consequentialism at one point and then relying on strong deontological premises at another.  When confronted with inconsistency, they might say, "Oh, I'm a pragmatist."  And they might be, but "pragmatism" is not a "Get Out of Jail Free" card that somehow magically nullifies contradictions or reconciles inconsistent theoretical premises.  The best uses of legal pragmatism always ground specific pragmatic moves in some metatheoretical framework.

There is no official name for "sloppy pragmatism," but I use the label "ad hoc pragmatism" as a short-hand label for the attempt to use "pragmatism" as an excuse for theoretical inconsistency or for gaps in a theoretical argument.  "Pragmatism" should be the term we use to describe a family of metatheoretical arguments; it is not an excuse for avoiding such arguments.

Conclusion 

"Pragmatism" is tricky.  In philosophy, the term "pragmatism" is both vague and ambiguous referring to a family of related but distinct philosophical positions, some of which are inconsistent and most of which are highly general and abstract.  Similarly "legal pragmatism" is not really a single well-defined metatheoretical position, but is, instead, a label that is applied to a number of different moves in general legal theory.

References

• Charles A. Barzun, Three Forms of Legal Pragmatism, 95 Wash. U. L. Rev. 1003 (2018).
• Philip Bobbitt, Constitutional Fate (1984).
• Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2003).
• Daniel Farber, Legal Pragmatism and the Constitution, 72 Minn. L. Rev. 1331 (1988).  Highly recommended as an exemplar of legal pragmatism.
• Daniel Farber & Philip Frickey, Practical Reason and the First Amendment, 34 UCLA L. REV. 1615, 1639-56 (1987).
• Thomas C. Grey, Judicial Review and Legal Pragmatism, 38 WAKE FOREST L. REV. 473, 497-507 (2003).
• David Luban, What's Pragmatic about Legal Pragmatism?, 18 Cardozo L. Rev. 43 (1996 - 1997) .
• Richard A. Posner, Law, Pragmatism, and Democracy (2003).
• Richard A. Posner, Legal Pragmatism, 35 Metaphilosophy 147 (2004).
• Richard A. Posner, Pragmatic Adjudication, 18 Cardozo Law Review 1 (1996).
• Richard A. Posner, Legal Pragmatism Defended, 71 University of Chicago Law Review 683 (2004).
• Brian Z. Tamanaha, Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence, Sociolegal Studies, and the Fact-Value Distinction, 41 American Journal of Jurisprudence 315 (1996)

Resources on the Internet

• Brain Edgar Butler, Legal Pragmatism, Internet Encyclopedia of Philosophy (2005)
• Jonathan Dancy, Moral Particularism, Stanford Encyclopedia of Philosophy
• Christopher Hookway, Pragmatism, Stanford Encyclopedia of Philosophy

Related Lexicon Entries

• Legal Theory Lexicon 006: The Veil of Ignorance
• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements
• Legal Theory Lexicon 043: Formalism and Instrumentalism

(This post was last revised on February 27, 2022.)

Legal Theory Bookworm: "We the Women" by Suk

The Legal Theory Bookworm recommends We the Women: The Unstoppable Mothers of the Equal Rights Amendment by Julie C. Suk.  Here is a description:

Ruth Bader Ginsburg believed that the equal rights of women belonged in the Constitution. She stood on the shoulders of brilliant women who persisted across generations to change the Constitution. We the Women tells their stories, showing what’s at stake in the current battle for the Equal Rights Amendment.

A century after the Nineteenth Amendment guaranteed women the constitutional right to vote, the quest for women’s full inclusion in the US Constitution continues.

After passage of the Nineteenth Amendment, revolutionary women demanded full equality beyond suffrage by proposing the Equal Rights Amendment (ERA). Congress took almost fifty years to adopt it in 1972, and the states took almost as long to ratify it. In January 2020, Virginia became the final state needed to ratify the amendment.

Why did the ERA take so long? Is it too late to add it to the Constitution? And what could it do for women?

Distinguished legal scholar Julie C. Suk tells the story of the ERA through the voices of the bold women lawmakers who created it. They faced opposition and subterfuge at every turn, but they kept the ERA alive. And, despite significant gains, the achievements of gender equality have fallen short, especially for working mothers and women of color. Suk excavates the ERA’s past to guide its future, explaining how the ERA can address hot-button issues such as pregnancy discrimination, sexual harassment, and unequal pay.

The rise of movements like the Women’s March and #MeToo have ignited women across the country. Unstoppable women are winning elections, challenging male abuses of power, and changing the law to support working families. Can they add the ERA to the Constitution and improve American democracy?

We the Women shows how the founding mothers of the ERA and the for-gotten mothers of all our children have transformed our living Constitution for the better.

And from the reviews:

“Every man I know needs to read this book. Every legislator in America needs to read this book. It’s a compelling examination of the history of the fight for equal rights in our nation dating back to our earliest days and making an undeniable case for the necessity of the Equal Rights Amendment in the twenty-first century.”
—ALYSSA MILANO, actress and political activist

“We talk as if only men make constitutions. Julie Suk changes this. She introduces us to the diverse cast of women constitution makers who supported, and opposed, the Equal Rights Amendment over the last century. Their quest showcases concerns missing in standard accounts of the Founding, and shows us how these concerns differed among women and over time. Essential reading for those interested in the future of gender justice.”
—REVA SIEGEL, Nicholas deB. Katzenbach Professor, Yale Law School
 
 “Julie Suk’s We the Women is a fascinating and nuanced recounting of the history of the ERA. It brings to light the many women who made constitutional equality for women across generations, highlighting complexities not widely known; documents the unending opposition; and showcases the potential of the ERA’s meaning for the twenty-first century. It will soon be recognized as the go-to resource for the ERA’s long legislative history.”
—LOUISE MELLING, Deputy Legal Director, American Civil Liberties Union
 
“Meticulously researched and compulsively readable, We the Women draws important connections between the past and present, making clear how, despite long odds and many obstacles, generations of women have come together to debate and demand the conditions necessary for a more perfect union.”
—MELISSA MURRAY, Frederick I. & Grace Stokes Professor of Law, NYU School of Law
 
“In We the Women, Julie Suk shows us that the Equal Rights Amendment at its core was—and still is—about freedom and power. The mothers of the ERA laid the groundwork of the battle waging in this country today, and though this campaign can feel long and arduous, We the Women has left me more hopeful.”
—FATIMA GOSS GRAVES, President and CEO, National Women’s Law Center
 
“Smart, readable, incisive. Required reading for anyone who wants to understand why we need the ERA. A must for students, activists, and anyone simply wanting to know the history of this hundred-year long fight. We The Women resurrects a diverse and brilliant cast of ERA foremothers. Suk gives us the ERA America needs right now—an amendment that takes into account the realities of motherhood, sexual harassment, and unequal pay. Suk convincingly persuades us that this essential recognition of women's equal standing in the nation has been denied too long—and is, at long last, within our grasp.”
—KIRSTEN SWINTH, author of Feminism’s Forgotten Fight: The Unfinished Struggle for Work and Family and Professor of History at Fordham University
 
“We the Women provides a riveting and nuanced history of women's fight for equality and enfranchisement in the United States. Julie Suk brilliantly threads together early suffragist movements with the continued fight for women's constitutional equality and ratification of the ERA. This timely book should be a companion to all readings on voting rights and in the hands of all students and readers of constitutional law.”
—MICHELE GOODWIN, Chancellor’s Professor, UC-Irvine, and author of Policing the Womb

Download of the Week: "The Normative Force of Consent in Moral, Political, and Legal Perspective" by Dempsey

The Download of the Week is The Normative Force of Consent in Moral, Political, and Legal Perspective by Michelle Madden Dempsey.  Here is the abstract:

Does sex require justification? If so, what role does consent play in providing such justification? Here I argue the answer to these questions depends on the normative perspective at issue: moral, political, or legal. Part one explains each perspective. Parts two, three, and four examine the normative force of consent to sex when viewed from each perspective. The conclusion briefly considers the relevance of this analysis for criminal law reform regarding sexual offenses.

Highly recommended.

Adar & Perry on Negligence Without Harm

Yehuda Adar (University of Haifa) & Ronen Perry (University of Haifa - Faculty of Law) have posted Negligence Without Harm (Georgetown Law Journal, Forthcoming) on SSRN.  Here is the abstract:

The colloquial phrase “no harm, no foul” captures one of the most fundamental tenets of negligence law: the tort is incomplete and there can be no legal redress without proof of actual harm. Mere exposure to risk, even when it is foreseeable and unreasonable, is not actionable. The Article dares to challenge this time-honored, deep-rooted, and highly impactful legal axiom.

Part I restates the traditional quadripartite structure of the tort of negligence, highlights the implications of the harm requirement, and briefly reviews and characterizes past attempts to circumvent it.

The Article then launches a three-pronged attack on this traditional structure:

(1) Part II uncovers the internal normative incoherence of existing negligence doctrine (where breach of a legal duty does not in itself have legal repercussions) and offers “negligence without harm” as a coherent alternative.

(2) Part III provides a fairness-based case for abolishing the harm requirement, fostering the idea that negligence, defined as exposing another person to foreseeable unreasonable risk, is a moral wrong as between the risk-creator and the risk-bearer irrespective of harm.

(3) Part IV presents an economic case for the proposed reform, arguing that if tort law aims to prevent the creation of unacceptable risks, it does not have to await harm and use the indirect, complicated, and seemingly flawed method of ordering some people to pay compensatory damages ex post in order to ensure internalization by others ex ante.

Finally, Part V supplements the theoretical analysis with a tentative scheme of legal remedies for negligence without harm.

Recommended.

Daly on COVID-19 Law in Canada

Paul Daly (University of Ottawa - Common Law Section) has posted COVID-19 in Canada: The Legal Framework on SSRN.  Here is the abstract:

In the legal framework for Canada’s pandemic response, executive government has been the dominant actor. The responsibility of balancing public health and economic well-being in rapidly evolving circumstances has been discharged by executive actors, elected ministers and unelected healthcare officials. Given the federal nature of the Canadian Constitution and the dominant role of executive government in the pandemic response, there has been a high degree of variation across the country in dealing with successive waves of COVID-19.

With successive waves of COVID-19 sweeping into Canada and over the population, the political and legal systems struggled to respond. The legal scholar charged with describing Canada’s COVID-19 response faces an unenviable task. Each of the COVID-19 waves would merit a detailed analysis in and of itself but space precludes such an approach. My goal, therefore, is to set out the general framework Canada’s political and legal systems have used to respond to the pandemic, illuminating the framework by examples drawn from various points in time. This framework is mostly backward-looking but, as it is likely to be used in response to future waves and future pandemics, it has also a forward-looking quality.

Bray & Miller on Christianity & Equity

Samuel L. Bray (Notre Dame Law School) & Paul B. Miller (Notre Dame Law School) have posted Christianity and Equity (Oxford Handbook of Christianity and Law (Forthcoming)) on SSRN.  Here is the abstract:

In this chapter for the Oxford Handbook of Christianity and Law, we survey the line of development of equity from Aristotle to the chancellors of the English Court of Chancery. In between, we trace equity through Roman law, the New Testament, scholastic theology, canon law, and the Magisterial Reformation. We conclude by noting ways in which contemporary law still bears the imprint, even if faint, of classical and Christian sources of the equity tradition.

Highly recommended.

Dempsey on Consent

Michelle Madden Dempsey (Villanova University School of Law) has posted The Normative Force of Consent in Moral, Political, and Legal Perspective (in Tatjana Hörnle (ed.), SEXUAL ASSAULT AND RAPE -- WHAT CAN WE LEARN FROM AND FOR LAW REFORM? (Oxford University Press)) on SSRN.  Here is the abstract:

Does sex require justification? If so, what role does consent play in providing such justification? Here I argue the answer to these questions depends on the normative perspective at issue: moral, political, or legal. Part one explains each perspective. Parts two, three, and four examine the normative force of consent to sex when viewed from each perspective. The conclusion briefly considers the relevance of this analysis for criminal law reform regarding sexual offenses.

Highly recommended.

Bratu on AI on the Moon

Ioana Bratu (Vrije Universiteit Amsterdam, Transnational Legal Studies, Amsterdam Law & Technology Institute) has posted Artificial Intelligence for Future Lunar Societies: A Critical Analysis of the Liability Problem (5th Global Moon Village Workshop & Symposium. December 6-8, Nicosia, Cyprus (2021)) on SSRN.  Here is the abstract:

Artificial intelligence (AI) is transforming the space industry by offering unprecedented possibilities for space related activities. AI applications in space include from analyzing large amounts of space data, enabling deep-space missions, mitigating the effects of climate change, combating space pollution, to assisting astronaut crews during their daily operations. In the context of building future human societies on the Moon, AI systems will play a double role: an ex-ante preparation role and a societal consolidative role. AI systems used in the ex-ante preparation phase include various applications used for exploration investigations and they will be decisive for the scientifical understanding of the future Lunar habitat.

Once the habitats will be settled, AI systems will contribute for consolidation, playing an assistive role, among others. AI systems will be able to offer support in daily activities, including offering mental health assistance. Similar systems have already been successfully deployed on the International Space Station, for crew assistance.

The introduction of AI systems as part of future Lunar habitats does not come without corresponding risks, especially from a legal perspective. Several legal challenges may appear in the context of a high reliance on these systems, such as: who will be liable in case an AI system will be involved in accidents causing economic losses or loss of human lives? What type of legal framework will be required to mitigate such risks? Will the existing body of laws representing international space law remain sufficient for addressing these challenges?

In such context, the purpose of this paper is to critically analyze the above-mentioned legal risks and to propose corresponding mitigating actions for ensuring long-standing future Lunar societies.

Bagg on the Administrative State & Private Power

Samuel Bagg (University of Oxford - Nuffield College) has posted Fighting Power with Power: The Administrative State as a Weapon against Concentrated Private Power (Social Philosophy and Policy 2021) on SSRN.  Here is the abstract:

Contemporary critics of the administrative state are right to highlight the dangers of vesting too much power in a centralized bureaucracy removed from popular oversight and accountability. Too often neglected in this literature, however, are the dangers of vesting too little power in a centralized state, which enables dominant groups to further expand their social and economic advantages through decentralized means. This article seeks to synthesize these concerns, understanding them as reflecting the same underlying danger of state capture. It then articulates a set of heuristics for the design of public and administrative institutions, which aim at minimizing the risks of capture from both public and private sources. By following these heuristics, it claims, we can successfully employ the administrative state as a weapon against concentrated private power, rather than allowing it to serve as a tool of dominant groups.

Chang on Waiver of COVID-19 Related Intellectual Property Rights

Chin-Ru Chang (National Taiwan University, College of Law) has posted Why the WTO Waiver on COVID-19 Related Intellectual Property Rights Should Be Adopted and Why It Is Not Enough on SSRN.  Here is the abstract:

India and South Africa have proposed a waiver to temporarily suspend the protection of COVID-19 related intellectual property rights (hereinafter “WTO Waiver”) to the World Trade Organization (hereinafter “WTO”). However, disagreements largely between the developing and developed countries have stalled the negotiations at the WTO. This was not the first time such a disagreement between the protection of intellectual property rights and the protection of public health has arisen. To fully understand the underlying rationales for the WTO Waiver, looking back twenty years ago at the Doha Declaration will be helpful. The Doha Declaration was passed in 2001 by the WTO Ministerial Conference attempting to resolve the same disagreement, it serves as a testament to the developing countries’ long-time struggle to pursue equitable access to medicine. Sadly, as demonstrated in the disparity of vaccines between the higher-income and the lower-income countries, it is blatantly evident that the Doha Declaration has failed its original purpose. Reflecting on the Doha Declaration, this article hopes to answer why the waiver of WTO Waiver should be adopted and why it is not enough. After analyzing both the supporting and opposing arguments of the WTO Waiver, this article argues for the adoption of the WTO Waiver. It will also be demonstrated by this article that the WTO Waiver alone is not enough to solve the vaccine inequity, more progressive measures will be needed. Finally, this article calls for the fundamental reconsideration of the current system of intellectual property rights protection and its implication for access to medicine.

Kelemen & Pavone on Supranational Forbearance in the European Union

R. Daniel Kelemen (Rutgers, The State University of New Jersey - New Brunswick/Piscataway; Rutgers, The State University of New Jersey - Rutgers Law School; University of Pennsylvania Carey Law School - Student/Alumni/Adjunct) & Tommaso Pavone (The University of Arizona - School of Government and Public Policy) have posted Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union on SSRN.  Here is the abstract:

Why would a supranational law enforcer suddenly refrain from wielding its powers? We theorize the supranational politics of forbearance – the deliberate under-enforcement of the law – and distinguish them from domestic forbearance. We explain why an exemplary supranational enforcer – the European Commission – became reluctant to launch infringements against European Union member states. While the Commission’s legislative role as “engine of integration” has been controversial, its enforcement role as “guardian of the Treaties” has been viewed as less contentious. Yet after 2004, infringements launched by the Commission plummeted. Triangulating between infringement statistics and elite interviews, we trace how the Commission grew alarmed that aggressive enforcement was jeopardizing intergovernmental support for its policy proposals. By embracing dialogue with governments over robust enforcement, the Commission sacrificed its role as guardian of the Treaties to safeguard its role as engine of integration. Our analysis holds broader implications for the study of forbearance in international organizations.

Finkelstein & Painter on Department of Justice Reform

Claire O. Finkelstein (University of Pennsylvania Carey Law School) & Richard W. Painter (University of Minnesota Law School) have posted Restoring the Rule of Law through Department of Justice Reform (from Overcoming Trumpery: How to Restore Ethics, the Rule of Law, and Democracy, Ch. 3, The Brookings Institution Press, March 22, 2022) on SSRN.  Here is the abstract:

As the nation’s principal law enforcement agency, the Department of Justice (DOJ) plays a unique role in protecting U.S. democracy. Even though the attorney general is appointed by the president and serves at the president’s pleasure, a recognition of the comparable independence of the DOJ from the political priorities of the rest of the executive branch has been critical for maintaining the department’s integrity and credibility over the course of its roughly 150-year history. The DOJ powerfully reinforces both rule of law norms and democratic governance when it faithfully conforms to law and ethics. But the flip side is also true: The DOJ is particularly well situated to corrupt the rule of law when it bends legal principles to suit political aims.

This chapter elaborates on a report the authors produced as co-chairs of a bipartisan working group organized in 2020 by the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania in conjunction with Citizens for Responsibility and Ethics in Washington (CREW). Issued in October of 2020, the Report examines the tenure of former Attorney General William Barr and the functioning of the DOJ under his leadership. A core theme that arose across the many different areas of DOJ activity in that period was the degree to which the Department had become politicized and the profound effect that this had on the rule of law for the country as a whole.

As this Chapter makes clear, politicization within the DOJ is not new. Over the course of the past twenty years, one can observe a wide range of DOJ functions where the effects of politicization are apparent. These include the prosecutorial functions of United States attorneys, legal advice to the Executive Branch from the Office of Legal Counsel, the supervisory role of the Attorney General, Congressional oversight of DOJ and compliance with Congressional subpoenas, appointment of independent special counsels for politically sensitive investigations and DOJ investigations of the intelligence community. This chapter includes specific suggestions for reform of DOJ to restore the law enforcement mission that is so critical to upholding the rule of law.

Abraham on Shadow Tort Law & "The Reptile"

Kenneth S. Abraham (University of Virginia School of Law) has posted Shadow Tort Law: Lessons From The Reptile on SSRN.  Here is the abstract:

For over a decade, a battle has been raging in the trial courts of this country over something called the "reptile theory," often simply referred to by insiders as "the reptile." The term comes from the book Reptile: The 2009 Manual of the Plaintiff's Revolution. The book's thesis is that the way for plaintiffs to win tort cases and secure large verdicts is to appeal to the reptilian part of jurors' brains, which (like threatened snakes) reacts with anger at threats to their security. This reaction is created mainly by subtly modifying the applicable standard of care in negligence cases. At the core of the reptile battle, then, is a dispute about the meaning of negligence. Though it is notorious among trial lawyers, the reptile has been invisible or barely visible to torts scholars, because the issues it poses are governed by a body of trial-level substantive tort law that is unreviewed, and for practical purposes largely unreviewable, by the appellate courts. This is what I call "shadow tort law," arising from rulings on questions that can be asked prospective jurors on voir dire, on motions in limine intended to preclude use of the reptile strategy, and on what counsel may and may not argue during closing argument.

In order to uncover how the reptile figures in the development of shadow tort law, this Article first describes what the reptile is and how its proponents and opponents deal with it pre-trial and trial settings. The Article then turns to the meaning of negligence as applied in these settings, analyzing the arguable gap between what the reptile strategy prescribes and what the law of torts provides, as well as the significance of that gap. Finally, the Article reflects on the jurisprudential implications of the analysis. It turns out that a lesson of the reptile controversy is that the law of torts (and arguably other bodies of law as well) is not always a single, continuous body of doctrine running from the filing of a complaint through to a final appeal. Rather, tort law is to a meaningful extent partly discontinuous, often operating in different, largely autonomous domains.

Fascinating.  Highly recommended.

Levin on the Pandemic & Bar Admissions

Leslie C. Levin (University of Connecticut School of Law) has posted The Politics of Bar Admission: Lessons from the Pandemic (Hofstra Law Review, Vol. 50, No. 1, 2021) on SSRN.  Here is the abstract:

The controversy over how and whether to administer the July 2020 bar examination during the COVID-19 pandemic upended the usual process of lawyer regulation. New actors—including bar applicants—very publicly challenged regulators’ decisions and questioned the safety and fairness of plans for the bar exam. Some advocated for emergency admission without the need to satisfy the bar examination requirement. Joined by law school deans and faculty, the advocacy occurred against the backdrop of the politicization of COVID-19, street protests over police misconduct and racial inequality, and long-standing skepticism about the value and fairness of the bar exam. Regulators throughout the United States reached very different decisions about how to proceed. This article uses eight case studies of states’ responses to explore why these differences occurred. They reveal how a state’s political culture and political attitudes toward the pandemic seemingly informed some regulators’ responses. Institutional relationships among the courts, the bar examiners, and sometimes, the organized bar also affected the decisionmakers. In addition, the courts’ attitudes toward innovation and its desire to maintain the reputation of the bar seemingly played a role. The article sheds new light on the politics of bar admission and the state supreme courts’ role in lawyer regulation.

van Erp on COVID-19 Apps & Data Ownership

Sjef van Erp (Trento University, Faculty of Law) has posted COVID-19 Apps, Corona Vaccination Apps and Data 'Ownership' on SSRN.  Here is the abstract:

Already before the present COVID-19 health crisis an emerging trend could be seen towards offering health services from a distance, called “e-health”. This trend, like so many other developments towards digitalisation of our societies, received a considerable impetus because of the COVID-19 crisis. First, the rise of COVID-19 tracing (and/or tracking) apps and now to be followed by the advance of Corona vaccination apps has made us aware of the benefits which e-health may bring, particularly in a situation where distance means safety. The apps contain very personal information and, consequently, have provoked questions as to whether the apps sufficiently protect a person’s right to privacy and data protection as safeguarded by the EU’s General Data Protection Regulation. The nature of the data, however, is such that also questions as to the importance of access by public health authorities in the public interest can be asked. Also, although commercial, but still important for developing and producing vaccines, for the pharmaceutical industry the data are important. The result is a conflict particularly between entitlement to privacy protection and the general interest, causing questions to be asked about which interest has priority. It might very well be, however, that this question, asked as such, is beside the point. Given that data are non-rivalrous and non-depletable, because they can be copied and copied, questions about which entitlement has priority cannot be answered in absolute terms. Rights regarding data depend upon who at a particular time has control over the data, who else has control and what control between all those involved then means. Looking at who has which right to data one can see an entitlement paradigm surfacing which is multi-perspective, relative and dynamic. Calling data entitlement “ownership” is not a reference to ownership in the traditional sense of the word, but to management. To decide what management in a particular situation means interest balancing exercises must be made. These exercises will change over time, as accordingly will the answer to the question who is “owner” of data in COVID-19 and Corona vaccination apps.

Wewerinke-Singh on the Duty to Cooperate & Global Crises

Margaretha Wewerinke-Singh (University of the South Pacific, School of Law; Leiden University; University of Cambridge, Centre for Climate Change Mitigation Research) has posted Pandemics, Planetary Health and Human Rights: Rethinking the Duty to Cooperate in the Face of Compound Global Crises (Max Planck Yearbook of United Nations Law 2022) on SSRN.  Here is the abstract:

Global solidarity and international cooperation are key to addressing compound global crises – such as climate change, biodiversity loss and pandemics – effectively. It remains unclear, however, to what extent, and on what legal basis, solidarity and international cooperation constitute legal obligations of States under different branches of international law. Questions also persist about the extent to which and how States’ obligations of international cooperation are differentiated; what common and differentiated obli- gations entail in practice for States at different levels of development; and how poten- tial conflicts between different types of obligations (e.g. territorial and extraterritorial human rights obligations) must be addressed. This article seeks to unpack these ques- tions from the perspective of international human rights law, giving due consideration to relevant principles and provisions of international environmental agreements. It builds on international law scholarship that has explained how and why the provi- sions of the UN Charter should be interpreted as creating genuine membership duties, including an obligation to cooperate to realise human rights. Further, it builds on more recent scholarship that has explored how this obligation applies in connection with climate change and biodiversity, and on a nascent body of scholarship on the COVID-19 crisis, human rights and international law. The aim of the article is to explore the role of the principle of solidarity and the duty to cooperate to realise human rights in devising more effective and holistic responses to compound global crises.

Lingwall & Bliss on Pandemic Dashboards

Jeff Lingwall (Boise State University) & TJ Bliss (Redfish Metrics, LLC) have posted A Thousand Views of the Cathedral: The Law, Politics, and Statistics of Pandemic Dashboards on SSRN.  Here is the abstract:

This Article explores the law, politics, and statistics of communicating data through the thousands of state, county, school district, and higher-education dashboards created in response to the COVID-19 global pandemic. Using a nationally distributed questionnaire and series of interviews with dashboard managers and stakeholders, we offer a wide-ranging view of data visualization practice in response to COVID-19. We pair this evidence with a survey of almost 3,000 entities responsible for public health communication, which resulted in collection of over 1,100 COVID-19 dashboards from a spectrum of government actors and private parties. We evaluate how legal issues were perceived and acted on, how data were politicized, and what technical challenges dashboard creators faced. We examine factors that led to creation of dashboards along with theory that explores the cognitive perception of dashboard elements. We explore the role of resources, and how those interplayed with specific software choices. We also examine the effect of local characteristics on dashboard creation, such as the presence of a county dashboard on data communication from local schools, the role of broadband access, technical occupations in the area, and so on. We conclude by suggesting a series of policies and practices that can be put into place to prepare for future data-based communication in a future public health crisis. These include practices to prepare for data visualization, the role enhanced resources devoted to public health communication can play, and the management of legal and political issues surrounding publicizing health information. This draft is shared under a Creative Commons Attribution 4.0 International Public License.

Berman on Blameworthiness

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Blameworthiness, Desert, and Luck (Noûs, forthcoming) on SSRN.  Here is the abstract:

Philosophers disagree about whether outcome luck can affect an agent’s “moral responsibility.” Focusing on responsibility’s “negative side,” some maintain, and others deny, that an action’s results bear constitutively on how “blameworthy” the actor is, and on how much blame or punishment they “deserve.” Crucially, both sides to the debate assume that an actor’s blameworthiness and negative desert are equally affected—or unaffected—by an action’s results. This article challenges that previously overlooked assumption, arguing that blameworthiness and desert are distinct moral notions that serve distinct normative functions: blameworthiness serves a liability function (removing a bar to otherwise impermissible treatments), whereas desert serves a favoring function (contributing new value to states of affairs, or providing new reasons for responsive treatments). Having distinguished (negative) desert from blameworthiness, the article proposes a novel resolution to the outcome-luck debate: that results do not affect an agent’s liability to blame, but do affect the amount and severity of blame to which the agent is justly liable, including by affecting the severity of blame that the agent deserves.

Coleman on Sex Neutrality

Doriane Lambelet Coleman (Duke University School of Law) has posted Sex Neutrality (Law and Contemporary Problems, Vol. 85, No. 1, 2022) on SSRN.  Here is the abstract:

This article closes out the volume on Sex in Law in which it appears with reflections on the normative question whether it would be best on balance if the law were to evolve to be sex neutral. Specifically, it considers whether—as some observers and policymakers have suggested—we would be better off if law could not see or act on the basis of sex, and if it prohibited regulated institutions from doing the same. Arguably, this move is the next logical step in the evolution of law’s treatment of sex from its historical use as a basis for ordering society according to the state’s general police powers to its increasingly limited modern use by both the states and the federal government as a basis for addressing discrimination and the differences that continue to stand in the way of sex equality.

The question whether—the biology and ubiquity of the taxonomy notwithstanding—the law should be sex neutral is both current and recurring. That is, we are pressed to consider it today by some of the same groups that have posed it in the past, including those that take one or more of these positions: Law that demands equality should express equality. The best way for the law to contribute to the dismantling of structural “isms”—including sexism—is by forcing neutrality. All forms of group-based affirmative action are inherently unjust. Gender minorities but also females are likely to fare better in the long run if sex is removed from any calculus that yields social goods. Unusual political bedfellows are the norm here, even as related questions about how sex is defined and what sexism is still fair game are front and center in the culture wars. As a result, the debates are more significant and disruptive than they were in earlier periods, an indicator of the kind of great social upheaval that tends to make for the development of new law in the Anglo-American tradition.

This article briefly summarizes the history of sex in law (Structural Sexism) and the reforms of the nineteenth and twentieth centuries (Sex Skepticism) before turning to the current moment in which these debates are taking place (Sex Neutrality). In this context, it describes and then counters the arguments in favor of sex neutrality on the grounds that sex is real, it is significant for individuals and the society in ways that matter to good governance, and it is precisely the law’s role to take such taxonomies into account in the fulfillment of its institutional mission. The article concludes with an effort to settle the terms on which disparately motivated groups might agree to pursue commonly held objectives.

Recommended.

Reynolds & White on Criminal Fees, Fines, Forfeitures, & Due Process

Glenn Harlan Reynolds (University of Tennessee College of Law) & Penny White (University of Tennessee College of Law) have posted The New Due Process: Fairness in a Fee-Driven State (Tennessee Law Review, Vol. 88, No. 1025, 2021) on SSRN.  Here is the abstract:

Many parts of the criminal justice system are funded by revenue from "users" -- i.e., the accused, in the form of fines, fees, and forfeitures. Drawing on both existing Supreme Court authority and recent Court of Appeals decisions, we argue that a violation of due process exists when all participants in the criminal justice system, from police to court clerks, to prosecutors and judges, depend on revenues from pleas and convictions in order to function. Instead, we argue that due process demands that the criminal justice system be funded in ways that are not affected by the rate of arrest and conviction.

Recommended.

Bernstein & Peterson on Managerial Contracting

Lisa Bernstein (University of Chicago - Law School; University of Oxford - Centre for Corporate Reputation) & Brad Peterson (Mayer Brown LLP) have posted Managerial Contracting: A Preliminary Study on SSRN.  Here is the abstract:

In the modern outsourced economy, important types of contractual relationships—among them those related to industrial procurement—are neither fully transactional nor fully relational. Rather, the agreements that govern these relationships incorporate highly detailed written terms that focus not only on what is promised but also on the details of how it is to be achieved and how the suppliers’ actions will be monitored over the life of the agreement. These provisions are not, for the most part, effectively backed by the threat of legal sanctions. Nevertheless, they have the potential to add significant value to contracting relationships. Many of these provisions—termed here “managerial provisions”—employ techniques used to organize relationships and increase productivity within firms. Known in the literature as elements of hierarchy, the techniques introduced by managerial provisions are used to provide a roadmap for carrying out the transactors’ work-a-day actions and interactions in ways that are likely to facilitate successful contracting relationships. Among the many intra-firm practices that managerial provisions commonly import into contracting relationships, are analogues of each of the eighteen management practices that the World Management Survey reveals are closely associated with persistent performance differences across similarly situated enterprises. This raises the possibility that more fully integrating some or all of these (and other) managerial practices into supply agreements may add value to these (and other types of) contracting relationships, particularly when attempts to do so are implemented with an understanding of the intrafirm organizational hierarchy and culture within each of the contracting parties.

Drawing on a study of over a hundred firms, this paper suggests that managerial contract provisions together with the contract administration mechanisms designed to implement them, have created a contract governance regime that is well-structured to support the creation and maintenance of cooperative relationships, strengthen the force of network governance, and scaffold the emergence of inter-firm trust--thereby creating the conditions needed for firms to enter into credible relational contracts that supplement their legally enforceable agreements and enable them to capture most of the benefits of vertical integration without vertically integrating.

Recommended.

Kovacs on "Structural Deregulation" by Freeman & Jacobs

Kathryn E. Kovacs (Rutgers Law School) has posted From Presidential Administration to Bureaucratic Dictatorship (135 Harv. L. Rev. F. 104 (2021)) on SSRN.  Here is the abstract:

This response to Jody Freeman and Sharon Jacobs' "Structural Deregulation" shows that the Administrative Procedure Act undermines the constitutional foundation upon which presidential administration stands. The APA reflects Congress’s proper role as the primary overseer of the administrative state. It codifies the conditions that legitimize statutory delegations of authority to agencies and the procedures that Congress, the President, and the Supreme Court agreed were appropriate before imposing agency authority on citizens. And it reflects the judgment of those who lived through the Great Depression, European fascism, and World War II about how best to construct a federal bureaucracy without paving a path to tyranny.

Refocusing on the APA’s core values — public participation, transparency, deliberation, and uniformity — would help to forestall the United States’ democratic backsliding. The APA represents the grand bargain of the administrative state, as well as an agreed-upon set of normative principles motivated by constitutional and rule of law values. In administrative law, we ignore the APA at our peril.

Hovenkamp on Compelled Interoperability as a Remedy

Herbert Hovenkamp (University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School; University College London) has posted Antitrust Interoperability Remedies on SSRN.  Here is the abstract:

Compelled interoperability can be a useful remedy for dominant firms, including large digital platforms, who violate the antitrust laws. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.

Given the wide variety of structures and business models for big tech, “interoperability” must be defined broadly. It can realistically include everything from “dynamic” interoperability that requires real time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real time interactions. Also included are the compelled sharing of intellectual property or other productive assets, or creation of broader and more competitive management of large digital firms.

Designing such remedies requires identification of the particular structures or practices that are making these markets less competitive than they might be. Interoperability is not the best remedy in all situations, nor even for all of those that involve digital platforms.

Recommended.

Emerson on the Administrative State & Constitutional Values

Blake Emerson (UCLA School of Law) has posted Executive (Administrative State) (Cambridge Handbook of Constitutional Theory, Forthcoming 2022) on SSRN.  Here is the abstract:

This chapter examines the relationship between the administrative state and constitutional values and structures with reference to German and American legal and political theory. It recovers from these intertwined traditions three analytical approaches to the administrative state, inspired by scholarship in public administration, political science and comparative law. The first analytical approach understands the administrative state to implement the constitution. The second understands the administrative state to generate new constitutional structures and values. The third understands the administrative state to displace the constitution with patterns and practices of rule that lie outside of the existing governance framework. These frameworks foreground normative analysis of how the administrative state ought to relate to general democratic principles and the specific constitutional rules that institutionalize them. Here I contribute to a robust and growing literature on democracy and the administrative state, which treats welfare and regulatory agencies as potentially advancing rather than merely threatening popular self-government I argue for a differentiated and developmental understanding of the relationship between democracy, constitution, and administration. The concrete administration of democratic values should allow constitutional rules to shift in light of social and historical context. The administrative state should not be strictly limited by, but rather should facilitate critical interrogation of, the constitution’s current instantiation of democratic values.

Highly recommended.

Kohl on Jurisdiction & Global Online Activity

Uta Kohl (University of Southampton) has posted Jurisdiction in Network Society on SSRN.  Here is the abstract:

Jurisdiction - or more precisely the entitlement to regulate a transnational event, that is to make, apply and enforce laws in respect of it - continues to be a live issue within the arena of network regulation and to evolve in line with wider regulatory trends. The controversy in the online environment has shifted away from the question of whether and, if so, when a State may apply its defamation, privacy, contract and intellectual property law, or criminal and regulatory law on eg. obscenity, pharmaceutical licencing and gambling to a global online activity. Now the focus is on more pragmatic concerns and in particularly, on the dominant tech platforms and their gatekeeping and data collection capacities, and when and how they may be co-opted by into the business of territorial regulation. This chapter selectively traces jurisdictional developments as constitutive of these new regulatory trends in network society, set against customary international law on legislative, adjudicative and executive jurisdiction. It posits that the authority of the territorial State is after all not weakened by the rise of a global network society, and might even be strengthened by it.

Blumm & Allen on the Federal Land Policy and Management Act & the Biden 30 by 30 Plan

Michael C. Blumm (Lewis & Clark Law School) & Greg Allen (Lewis & Clark College, Law School) have posted The 30 by 30 Proposal, Areas of Critical Environmental Concern, and the Protection of Tribal Cultural Lands on SSRN.  Her eis the abstract:

Among the most innovative provisions of the Federal Land Policy and Management Act (FLPMA) of 1976 were those called for the Bureau of Land Management (BLM)to designate public lands as “areas of critical environmental concern” (ACECs) for protective management. In fact, FLPMA made it quite clear that national policy was to give ACECs priority in public land planning. Nearly a half-century later, the ACEC program has failed to achieve its promise, beset with inconsistent management and lacking even programmatic regulations. BLM did attempt to revitalize the program in revised planning regulations the agency promulgated in 2016, but Congress exercised its veto authority under the Congressional Review Act, so BLM continues to operate under outdated regulations promulgated during the Reagan administration.

The Biden administration has an opportunity to modernize and reinvigorate the ACEC program through its recent commitment to preserve 30% of the nation’s lands and waters by 2030. This paper suggests that a renewed ACEC program would be a fitting vehicle to help accomplish that “30 by 30” goal. In particular, we suggest that BLM promulgate ACEC regulations that invite tribes to nominate ACECs and promise to structure collaborative management arrangements that would enable tribes to participate as co-managers of their ceded lands.

Martínez, Mollica, & Gibson on Plain Language & Federal Statutes

Eric Martínez (Massachusetts Institute of Technology (MIT)), Frank Mollica (University of Edinburgh), & Edward Gibson (Massachusetts Institute of Technology (MIT)) have posted So Much for Plain Language: An Analysis of the Accessibility of United States Federal Laws Over Time on SSRN.  Here is the abstract:

Over the last 50 years, there have been efforts on behalf of the US government to simplify public legal documents for the benefit of society at large . However, there has been no systematic evaluation of how effective these efforts--collectively referred to as the ``plain language movement''--have been. Here we report the results of a large-scale longitudinal corpus analysis (n≈225 million words), in which we compare every law passed by congress between 1951 to 2009 (as well as concurrent resolutions and proclamations), with a comparably sized sample of English texts from four different genres published during the same time period. We find that laws remain laden with features associated with processing difficulty--including center-embedding, passive voice, low-frequency jargon and capitalization--relative to each of the four baseline genres of English, and that the prevalence of these features has not meaningfully declined since the onset of the plain language movement (in some cases, their prevalence has increased). These findings suggest that top-down efforts to simplify legal language have thus far remained largely ineffectual, despite the apparent tractability of these changes, raising and informing difficult questions of law and public policy.

Sirota on Originalism & the Supreme Court of Canada

Leonid Sirota (School of Law) has posted Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation ((2021) 47:1 Queen’s Law Journal 78) on SSRN.  Here is the abstract:

Both the Supreme Court of Canada and Canadian scholarship often treat debates about constitutional interpretation as settled. This articles shows that this is not so. While it is commonly assumed that purposivism is the authoritative interpretive method, originalism and textualism continue to influence the Supreme Court's decision-making. This article demonstrates their decisive influence on three recent cases interpreting the Canadian Charter of Rights and Freedoms.

After an overview of the main interpretive approaches present in the Supreme Court's eclectic jurisprudence―pursposivism, living constitutionalism, and originalism―the article critically assesses the majority and minority reasons in R v Stillman, R v Poulin, and Quebec (Attorney
General) v 9147-0732 Québec Inc. While all the opinions profess fidelity to purposivism, they are sharply divided about interpretive questions. A close examination of the majority opinions shows that they were, in fact, more textualist or even originalist than they acknowledged. Their endorsement of purposivism and even the ostensible rejection of textualism in Québec Inc are hollow.

Highly recommended.

Larsen & Devins on the Personalities of the Circuits of the United States Courts of Appeal

Alli Orr Larsen (William & Mary Law School) & Neal Devins (William & Mary Law School) has posted Circuit Personalities (Virginia Law Review, Vol. 108 (Forthcoming 2022)) on SSRN.  Here is the abstract:

The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even self-imposed circuit nicknames. In this article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality and other rule of law values and, in so doing, serve as a critical counterweight to the pernicious nationalization and partisan politics of federal judicial appointments.

Making use of both empirical measures and interviews conducted with eighteen U.S. Court of Appeals judges, this article shows how same-circuit appeals judges forge a unique and consequential bond with each other. This is true of Democrat and Republican appointees; it is true of a just-appointed judge or a senior-status judge. By mitigating national partisan forces, “circuit personalities” facilitate the very model of judging employed by the U.S. Courts of Appeals – one that assumes any random panel of three can deliberate and deliver a correct result for the court as a whole. This model of judging simply does not work if the judges fall prey to “my team your team” impulses -- forces which are growing steadily as a byproduct of the new nationalization of judicial appointments. To be sure, judges are ideologically divided and partisan divisions among them are sometimes inevitable. But the best way to prevent those divisions from overtaking appellate courts altogether is for judges to invest in the ties that bind them – to celebrate the local and resist growing calls that they become “partisan warriors” in a national war.

Highly recommended.  Download it while it's hot!

John Rawls's Birthday

One year ago today was the 100th anniversary of John Rawls's birth.  There have been a variety of celebrations and conferences prompted by that event and by the 50th anniversary of the publication of A Theory of Justice, which also occurred last year.  Here is a link to my post from last year on this date: John Rawls at 100, "A Theory of Justice" at 50

Tushnet on American Legal Realism

Mark Tushnet (Harvard Law School) has posted American Legal Realism Today: An Idiosyncratic Restatement on SSRN.  Here is the abstract:

This essay offers my explication of what I understand to be the principle propositions that constitute American legal realism. “Explication,” because I do not intend to defend the propositions, and “my” because the essay is not an exegesis of the work of major legal realists but is instead my personal version of what I take to be those propositions. The core assertion is that a person seeking to understand what the law is in some jurisdiction must engage in an empirical inquiry into social facts. These facts include matters such as the organization of the legal profession, culturally prevalent ideologies about law, and more. American Legal Realism, that is, in my view is fundamentally a sociological account of law.

Short and interesting.  Recommended.

Livingstone on Gloss & the Constitution

Spencer G. Livingstone (Yale University) has posted Longevity and the Constitution: Making Sense of Historical Gloss on SSRN.  Here is the abstract:

Recent constitutional scholarship has drawn on Justice Frankfurter’s Steel Seizure concurrence to explore how longstanding, post-adoption practices can resolve disputes over executive power – a concept known as “historical gloss.” Yet gloss is hardly limited to that context; the Court invokes it in disputes over congressional and judicial power, federalism, and individual rights. While the Court professes an originalist turn, judicial reliance on post-adoption longevity has become widespread. Given their focus on the executive branch, however, gloss scholars have not analyzed this expansion of gloss across constitutional law.

This Article takes up that project. It begins by setting out a taxonomy that reveals historical gloss, properly understood, is not one thing but three: Inclusive gloss, which treats the longevity of a practice as supporting its constitutionality; exclusive gloss, which requires longevity for a practice to be constitutional; and absence gloss, which uses a longstanding failure to act as evidence that the practice is unconstitutional. These uses of gloss all recognize that longevity is constitutionally significant, but they vary in what that significance ought to be.

The Article proceeds to evaluate those uses of gloss in court. To do so, it links historical gloss not to unique features of the executive branch, but to the informal norms of public power that secure American democracy against destructive, though authorized, actions – what scholars call the “small-c constitution.” Drawing on such scholarship, as well as a little-known case that served as a template for Steel Seizure, this Article argues that historical gloss uses longevity as a proxy for whether a practice has become entrenched as the accepted, customary method of exercising public power. Like the rest of the small-c constitution, however, gloss can serve this quasi-constitutional function only if it can also change through practice rather than Article V. Thus, courts should use longevity to support the constitutionality of a practice, as with inclusive gloss, but not to preclude other practices from developing, as with exclusive and absence gloss. That conclusion requires rethinking what courts can infer from gloss in individual cases, especially in separation of powers disputes, as well as reforming key doctrines – including for Article III standing – that rely on gloss errors. Accomplishing both is essential to maintaining the judicial role in a constitutional democracy that rests on a fundamental law both written and practiced.

Highly recommended.