Legal Theory Blog

Jiménez on Law as a Historically Grounded Practice

Felipe Jiménez's article Legal Principles, Law, and Tradition has been posted on the Yale Journal of Law & the Humanities website.  Here is the abstract:

Legal reasoning and legal discourse take place within historical traditions that develop over time. Law is characterized by the authoritative presence of those historical traditions. This observation vindicates the basic positivist insight that law is ultimately grounded in social facts. These social facts include the history of the legal tradition, the work and shared understanding of legal scholars, and the moral reasoning of legal participants—all of which have been mistakenly left aside by many legal positivists and their usual focus on coercive institutions. I use the Hart-Dworkin debate as a starting point for reclaiming the notion of law as a historically grounded practice. The Hart-Dworkin debate highlights that philosophical reflection about law becomes impoverished without history. A closer look at history shows that both Dworkin and Hart were partially right. As Dworkin argued, law is not only a matter of purely source-based legal rules, but also incorporates principles with weight and a less straightforward connection to social facts. However, the ubiquity of legal principles and their operation show that a socially grounded conception of law, as the one defended by legal positivism, is entirely consistent with the existence of legal principles.

Balkin on Collective Constitutional Memories

Jack M. Balkin (Yale University - Law School) has posted Constitutional Memories on SSRN.  Here is the abstract:

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation— remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.

The use of memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions both rely on constitutional memory and produce constitutional memory.

What is remembered and what is erased has powerful normative effects. It shapes our understanding of who we are and how things came to be; what is traditional and what is an innovation; who has committed wrongs and who has been wronged; what we owe to others and what they owe to us. What is erased from memory, by contrast, can make no claims on us.

Many of the most important forms of constitutional interpretation— arguments from precedent, arguments from tradition, and arguments from original meaning or understanding—involve an mixture of memory and erasure. They emphasize certain elements of the past while effacing others. Yet the selectivity and erasure of constitutional memory can have ideological effects: it can bestow on constitutional claims a legitimacy that they do not always deserve.

The scope of constitutional memory matters to legitimacy because many features of constitutional legitimacy depend, whether directly or indirectly, on implicit notions of societal consensus, majority opinion, and the consent of the governed. But if the consensus is not real, if the majority is artificially constructed, and if the consent of the governed is not genuine, this undermines assumptions about legitimacy.

At stake in constitutional memory is which historical figures and movements will count as makers of constitutional meaning for the present. If the memory of the adoption of the Constitution and its amendments features only a small group of white men as the central actors, the American constitutional tradition belongs to them and it is their views that matter. Women and racial minorities have constitutional rights only because these white men allowed them to have them.

This is a false portrait of the country’s history. When we engage in constitutional construction therefore, we should embrace an expansive conception of collective constitutional memory, including the views and experiences of people left out of formal constitution-making, as well as the claims of social and political movements that have shaped our constitutional tradition. These can provide both positive and negative examples for the present.

Not all of the lessons of constitutional memory are positive. Not everyone in the past was heroic, and even people and groups that we celebrate today had serious flaws and failings. Some of the lessons of constitutional memory are deeply ambivalent. But all can be grist for the mill of constitutional construction. When we implement and apply the Constitution in our own time, many different groups and many different people can be makers of constitutional meaning. What matters is what their ideas and experiences mean for the present, and whether they can serve as positive or negative examples for us today.

Highly recommended.  Download it while it's hot!

Rich on Retributivism & Corporate Criminals

Sylvia Rich (University of Ottawa, Faculty of Law) has posted Corporate Criminals and Punishment Theory ((2016) Canadian Journal of Law & Jurisprudence, 29, pp 97-118) on SSRN.  Here is the abstract:

Sentencing principles for corporations should be consonant with those for individuals, and if they are not, there should be good reasons for the divergence. Theories of punishment and sentencing are also theories of how we justify using the coercive power of the state to punish people. This article considers how corporate entities should be treated under retributivism, a theory of punishment that holds that offenders deserve to be punished in proportion to their blameworthiness. I argue that corporations have the capacity to understand moral matters and make moral judgments, and retributivism must be included as a component principle in corporate sentencing.

Highly recommended.

This is not my field, but after reading this, I wonder if, from the notion that there are proper group agents, it might follow that corporations qua group agents can receive true punishment.  So, for example, a corporation might be placed in receivership for a period of years, during which period the receive would operate the corporation for the public good.  Lots would need to be said about how the group agent would be able to understand the receivership as punishment, but I can see several strategies for making this out.  Just a stray thought.

Dann & Riegner on the World Bank's Environmental & Social Safeguard

Philipp Dann (Humboldt University - Chair for Public and Comparative Law) & Michael Riegner (Humboldt University of Berlin) has posted The World Bank’s Environmental and Social Safeguards and the Evolution of Global Order (Leiden Journal of International Law 32 (2019), pp. 537-559) on SSRN.  Here is the abstract:

This article analyses the World Bank’s environmental and social Safeguards against the backdrop of changing paradigms of global legal order. In January 2017, a new ‘Environmental and Social Framework’ (ESF) entered into force and replaced older ‘Safeguard Policies’ that had incrementally emerged since the 1980s in response to harmful impacts of investment projects financed by the Bank.

We argue that the Safeguards reform epitomizes the changing structures and geopolitical shifts that shape international law in the twenty-first century and provides a fascinating looking glass on the evolution of global order since the end of the cold war. In this perspective, we see the first generation of Safeguards, introduced since the late 1980s, as an element of incremental legalization in the emerging global governance regime, a regime characterized by unipolar multilateralism and geopolitical dominance of ‘the West’. The 2016 reform not only reflects the increased politicization of global governance by civil society but also the emergence of a more competitive multilateralism, characterized by counter-institutionalization on the part of emerging powers like China. A comparison of the old and new Safeguards thus allows us to analyse different forms of contestation and resulting normative evolution in the key area of global governance of development and finance.

Falletti on the EU Proposal for AI Regulation & Risk Assessment Software for Gender Violence

Elena Falletti (Carlo Cattaneo - LIUC University) has posted Human Rights Protection and High-Risk AI Systems: The Spanish Model in Gender-Based Violence Prevention on SSRN.  Here is the abstract:

VioGén (Sistema de Seguimiento Integral en los casos de Violencia de Género) is a risk assessment software regulated by “Ley Orgánica 1/2004 de Medidas de Protección Integral contra la Violencia de Género”, and it applies to regulation in all reported gender-based violence situations, especially regarding intimate partners violence or violence against minors. It has been used in Spain since 2007, and it is designed to estimate the risk of occurrence of further violence after a previous complaint (police recidivism), taking into account risk and protective indicators which it can observe, in spite of its final users are not behavioral assessment experts.

Since it is a predictive software, VioGén could be considered a “high-risk AI systems” under the Annex III of the new “Proposal for AI Regulation” published by the European Commission on 21st April 2021.

Using risk assessment software like VioGén shows both positive and negative issues. On the one hand, VioGén allows developing strategies to reduce recidivism throught the prediction of IPV risk. This stands out in a peculiar way because of the first-hand contact with victims and aggressors, in particular in family environments, where the protection of vulnerable subjects against life, personal integrity, and safety threats is essential for assuring peaceful relationships. On the other hand, risk assessment softwares shows relevant critical issues regarding the presumption of innocence of individuals, the presence of bias that the software can absorb from both data collected or machine learning proceedings.

The aim of this proposal is to analyze the relevant profiles using a risk assessment software like VioGén involved in human rights protection under both the Charter of Fundamental Rights of the European Union and the European Convention of Human Rights, focusing the balance on protection of dignity, right to life, to physical and mental integrity, protection of private and family life, non-discrimination and fair trial, for vulnerable subjects and on the other hand the protection of due process, presumption of innocence and non-discrimination for prospective defendants.

Keenan on Object & Purpose in International Criminal Law

Patrick Keenan (University of Illinois College of Law) has posted The Slippery Concept of Object and Purpose in International Criminal Law on SSRN.  Here is the abstract:

International criminal tribunals often rely on their interpretation of a treaty or statute’s “object and purpose” to determine the meaning of important provisions. This inquiry, which comes from the Vienna Convention on the Law of Treaties, allows judges to supply meaning to terms that might be vague, confusing, or simply new. As useful it has it has been as a kind of doctrinal lubricant during international criminal law’s sometimes-creaky early years, the time has come for a closer look at the concept of object and purpose as the field approaches the end of its third decade of robust use. Object and purpose considerations appear to point in the same direction in almost every case: toward more culpability for defendants, toward expanding liability to those further from the crime, toward reduced evidentiary burdens on prosecutors. This article critically analyzes the ways that the object and purpose inquiry has been deployed in cases. In practical terms it is unprovable at trial and uncontestable on appeal. Coupled with the reality that the object and purpose of most international criminal statutes is taken to be the expansion of liability or the easing of the prosecution’s burden, reliance on the object and purpose in this way amounts to a significant disadvantage for defendants. This article identifies the special problems with interpretation in international criminal law and analyzes the role of object and purpose in these issues. The article argues that it is possible to rationalize the use of object by making it less ad hoc, more predictable, and more attentive to the social role of international criminal law.

Parsons on Taxing Cryptocurrency

Amanda Parsons (Columbia Law School) has posted Cryptocurrency, Legibility, and Taxation on SSRN.  Here is the abstract:

In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance on the appropriate taxation of cryptocurrency is opening the door for a critical juncture in tax law to be decided via strategic litigation. This threatens a jurisprudential evasion of the democratic and administrative process in a high-stakes moment for tax law.

Highly recommended.

Landau on Non-Retrogression & Substantive Due Process

Joseph Benjamin Landau (Fordham University School of Law; Fordham University School of Law) has posted Rescinding Rights (Minnesota Law Review, Vol. 106, No. 1681, 2022) on SSRN.  Here is the abstract:

In the wake of the Trump Administration’s three Supreme Court appointments, many commentators are bracing for a rightward shift in jurisprudence that could undermine a litany of civil rights and equality protections—including reproductive rights, LGBTQ rights, race-and ethnicity-centered protections, voting rights, and more. Yet the Court’s apparent disinclination for advancing new equality arguments need not require the revocation of existing statutory and constitutional rights protections. During prior periods of rightward shift, conservative Justices—despite a general resistance to substantive arguments grounded in animus, privacy, disparate impact, or other substantive grounds—have often entertained procedural arguments for freezing in place a rights-affirming status quo that they might not otherwise have deemed worthy of protection in the first place. This is 'non-retrogression', a constitutional and quasi-constitutional dynamic in which reliance on the current state of affairs—as well as commitments to good procedure, orderliness, and judicial manageability—dissuade the Court from reverting to what it suggests might otherwise have been a perfectly lawful state of affairs. Non-retrogression explains why, for example, a Court unwilling to treat President Trump’s race-laden diatribes as dispositive animus still protected Dreamers imperiled by the Administration’s at-tempt to rescind the Deferred Action for Childhood Arrivals pro-gram; why the broader societal and cultural reliance cited by a Court openly ambivalent about Miranda’s substantive validity nonetheless upheld it; and why a Court generally unsympathetic to disparate impact analysis nevertheless read such a standard into the Fair Housing Act.

This Article traces non-retrogression’s ancestry from America’s infancy all the way through modern times, mapping its domain and exploring how a core aspect of due process—the notion that the state cannot take something away without demonstrating a good reason, and its embedded property and reliance values—can function as an unheralded proxy for substantive constitutional protection when rights are at stake. This Article further demonstrates how non-retrogression’s impact has outpaced the recognition it has received among scholars, defying the limitations that have been placed upon it by the few commentators who have engaged with it. Non-retrogression has become a force worthy of discussion, particularly with respect to the critical judicial role ensuring the integrity of the judicial process and the foundational (if fluctuating) guarantee of due process. It is a tradition the current Court would do well to heed, even as it has ominously signaled its intent to do otherwise.

Timely, important, and insightful.  Highly recommended.  Download it while it's hot!

Fineman on Vulnerability Theory & Social Justice

Martha Albertson Fineman (Emory University School of Law) has posted Reasoning From the Body: Universal Vulnerability and Social Justice on SSRN.  Here is the abstract:

This chapter offers a clear roadmap for the application of vulnerability theory. It engages with the ontological body in order to highlight the universality of vulnerability and its implications for law and policy. Embodied vulnerability and the inevitable social dependency it generates provide a clear and unambiguous challenge to [neo]liberal understandings of a legal subjectivity grounded in liberty, autonomy and rationality, as well as rendering incomprehensible models of the restrained state. In the construction of social institutions and relationships, the state is both inherently a primary social actor and the primary instrument of accomplishing social justice. Law and policy represent the ways in which state responsibility is defined and manifested in society. Placing vulnerability and dependency at the center of governance demonstrates the necessity for law and policy that are responsive to the realities of the human condition. Understanding the realities of vulnerability and dependency also reveals the there is an inherent and inevitable inequality of position in many social arrangements to which law must respond. Vulnerability theory helps to formulate the questions that can help us achieve justice through the law and policy that inevitably shapes the contours of these institutions and relationships.

Daly on Climate Justice for Children & the UN Convention on the Rights of the Child

Aoife Daly (University College Cork; University of Liverpool) has posted Child and Youth-Friendly Justice for the Climate Crisis: Relying on the UN Convention on the Rights of the Child on SSRN.  Here is the abstract:

The climate crisis is a human rights crisis, and there is perhaps no other group more affected than children. Children and youth have been key to climate activism and advocacy, gaining particular prominence since Greta Thunberg sparked a global movement in 2018. As well as engaging in numerous consultative fora such as COP26 and the drafting of a General Comment on the right of children to a healthy environment, they have gone on to become key litigators in climate cases/applications at both national and international level. However these justice processes are notoriously ill suited to the particular needs of children and youth. Child friendly justice is a concept which has been elaborated in recent years by the Council of Europe. Yet climate litigation is very different to the cases (e.g. in family law) in which children have traditionally been parties – amongst other things it can involve very public campaigns. This article considers child and youth friendly justice in the context of the climate crisis through the UN Convention on the Rights of the Child, and the concepts of access, participation, interests, and judgments.

Smith on Mistaken Statutory Precedents

Dale Smith (University of Melbourne - Law School) has posted Should Courts Follow Mistaken Statutory Precedents? (Forthcoming in T Endicott, H Kristjansson and S Lewis (eds), Philosophical Foundations of Precedent (OUP)) on SSRN.  Here is the abstract:

Sometimes, when a court interprets a statute, it makes a mistake, with the result that the court mis-identifies the statute’s legal effect (ie, the contribution the statute makes to the content of the law). Where the court is an appellate one, the question arises: should later courts follow the earlier court’s mistaken interpretation of the statute or should they uphold the statute’s legal effect? This question can be understood as a question about what courts ought morally to do or as a question about what the law requires of them. In this chapter, I am interested in the latter way of understanding the question. The answer to that question may vary between legal systems, but I shall argue that, in the United Kingdom, later courts may be faced with conflicting legal duties in this situation. However, where this is so, the principle of Parliamentary supremacy resolves the conflict by prioritising the court’s duty to uphold the statute’s legal effect over the duty to follow the earlier court’s mistaken interpretation of the statute.

Highly recommended.

Monea on the Contempt Power

Nino Monea (United States Army, Judge Advocate General's Corps) has posted Is the Contempt Power Obsolete? (127 Dickinson Law Review __ (2022)) on SSRN.  Here is the abstract:

Contempt power has been with us for as long as we’ve had courts in this country. Through summary contempt proceedings, judges may imprison any person they deem insufficiently respectful to the authority of the court—with significantly less due process than a person would be entitled to under any other criminal offense. In theory, this is necessary to maintain order in the court. But in practice, summary contempt power is serially and seriously abused. Judges use incarceration to deal with piddling offenses or seemingly for no real reason at all. This Article argues that the concept of allowing judges nearly unbridled discretion to jail people for rudeness is outdated and should be reformed.

Pilliar on Vulnerability Theory & Access to Justice

Andrew Pilliar (Thompson Rivers University Faculty of Law) has posted Filling the Normative Hole at the Centre of Access to Justice: Toward a Person-Centred Conception ((2022) 55:1 UBC Law Review 149) on SSRN.  Here is the abstract:

Access to justice is often described as a significant problem, but it lacks a well-developed normative framework to understand and address the problem. This paper interrogates and critiques two leading conceptions of access to justice in Canada: one found in caselaw, the second found in contemporary academic work, public reports, and extra-judicial writing. While these conceptions differ from each other, both are ultimately constrained by a normative dependence on the rule of law and other institutional commitments that make them insufficient to respond to the scope of access to justice problems. This paper offers a new conception of access to justice that transcends these limitations by focussing on the people who experience access to justice problems. This person-centred conception of access to justice draws on Martha Fineman’s vulnerability theory to posit a normative approach that is both universal in scope and is also sensitive to the context of particular individuals. The paper elaborates this person-centred conception and also discusses some implications of this approach for the Canadian legal system.

Okoh on Private Wells, Safe Drinking Water, & Discrimination

Michele Okoh (Duke University School of Law) has posted Forgotten Waters (The Georgetown Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Over 43 million Americans, approximately 15% of the population, rely on private wells for drinking water. These Americans do not have access to public water systems and are not protected by the Safe Drinking Water Act. These individuals are instead left with a set of widely differing state laws regulating their drinking water wells. Most of these states do not have any standards related to drinking water quality. Well owners are instead responsible for monitoring and maintaining the safety of their water.

This problem is often characterized as a rural issue, hard to solve because of the large distance to treated water infrastructure. This assumption is wrong. Many homes are located in peri-urban communities, close to public water systems. These systems often have been excluded from public water systems due to racial/ethnic discrimination and poverty. Using the example of communities surrounding Mebane, North Carolina, this essay argues that approaches to addressing access to safe drinking water must account for this legacy of discrimination and discusses why the Rural Electrification Act provides a promising model to provide safe drinking water to well dependent populations.

Lewis on the Justifications for Following Precedent

Sebastian Lewis (University of Oxford) has posted On the Nature of Stare Decisis (T Endicott, H Kristjánsson & S Lewis (eds) Philosophical Foundations of Precedent (Oxford UP, Forthcoming)) on SSRN.  Here is the abstract:

Why must certain courts in the common law follow precedent? In this chapter I identify two approaches to this question: moral and juridical. According to the former, courts must follow precedent whenever there are sufficiently strong moral reasons to ground a moral obligation. According to the latter, courts must follow precedent because their duty is to give effect to the law--and precedents, or at least many of them, constitute sources of law. The upshot is that the grounds on which courts may be morally required to follow precedent need not be those on which they are legally bound to do so. I aim to conceptualise these two approaches and the way they interrelate. I will argue that stare decisis is a legal doctrine because morality cannot account for central features of it--for example, the distinction between ratio and obiter, the rules on vertical and horizontal precedent, and the grounds on which certain courts may overrule precedent. But this view may be objected to by proponents of the ‘one-system view’--i.e., a new and distinctive approach to jurisprudence which draws from Ronald Dworkin’s late work. I will consider that objection, and the problems of this view in accounting for stare decisis.

Highly recommended.  Download it while it's hot!

Foran on Substantive and Formal Conceptions of the Rule of Law

Michael P. Foran (University of Strathclyde) has posted The Rule of Good Law: Form, Substance, and Fundamental Rights (The Cambridge Law Journal 2019) on SSRN.  Here is the abstract:

This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.

Munir on Hart on Austin

Muhammad Munir (International Islamic University, Islamabad - Department of Law) has posted A Critical Review of Hart’s Scathing Attack on Austin’S Command Theory on SSRN.  Here is the abstract:

Hart rebukes Austin’s command theory of law and does not consider it a legal theory. Hart’s intense criticism, especially in chapter two of his book The Concept of Law is too severe. This work explores Hart’s methodology in criticizing Austin’s theory. Whether Hart is justified in its vilification of the command theory? Whether Hart has rightly described the command theory as the gunman theory? Whether Hart has attacked Austin’s theory or has castigated things not said by Austin? Whether the command theory was really as bad as described by Hart or was Hart very unfair in his criticism of Austin? Whether Hart made mistakes while criticizing Austin? Can Austin be defended against Hart’s criticism? And, finally, how Hart got influenced by some of the concepts in Austin’s theory that he had criticized earlier.

Kilovaty on the Laws of War & Attack on Big Data

Ido Kilovaty (University of Tulsa College of Law; Yale University - Law School) has posted Attacking Big Data as a Use of Force (Big Data and Armed Conflict: Legal Issues Above and Below the Armed Conflict Threshold, edited by Laura A. Dickinson & Edward Berg, Forhtcoming 2022) on SSRN.  Here is the abstract:

Since the advent of cyber operations, international law has operated on the assumption that state actors are not prohibited from breaching each other’s systems to manipulate, and potentially destroy, digital data. This assumption is based on the common understanding that international law does not make acts of harm to data illegal. However, with decreasing storage costs and the emergence of large quantities of data, this assumption is increasingly questioned by both states and scholars.

This chapter seeks to challenge the assumption that all data is created equal. The current legal state of affairs affords states a carte blanche to hack each other’s computer systems and networks regardless of the type of data being targeted (personal v. non-personal) and its volume (a single file v. an entire database). Indeed, such action may lead to criminal charges initiated by the targeted state, but internationally, states rarely face any consequences or condemnation.

This chapter will argue that international law, generally, should treat big data differently from “small” data. More specifically, this chapter is focused on jus ad bellum questions pertaining to cyber operations against big data. Given the increasing volume of sensitive and personal data compromised by states, both pre-conflict and during conflict, the equilibrium between sovereignty (a state’s freedom of action in cyberspace) and the confidentiality, integrity, and availability of data ought to change. To support this argument, this chapter will take two routes to conduct its analysis. First, this chapter will conceptualize Big Data, as compared to Small Data.

Second, this chapter will explore how cyber operations against data may be addressed by the jus ad bellum. This exercise will highlight that international law has an existing legal framework through which a subset of cyber operations against Big Data may be addressed.

Third, this chapter will offer a way to conceptualize the jus ad bellum in the context of cyber operations against Big Data. Today’s big data is far more sensitive, revealing, and prone to misuse. For example, the compromise of biometric data database may enable the adversary to misuse these credentials in future cyber operations as well as make powerful inferences based on the quality and quantity of the data. Therefore, Big Data should be treated differently by the use of force framework as compared to Small Data. The focus of this chapter, therefore, is on the use of force and armed attack thresholds and their application to Big Data.

Fourth, this chapter will explore some of the developments in the context of international law and cyberspace, in particular, official state statements on how the jus ad bellum applies to non-kinetic cyber operations. At the heart of this exploration is the observation that some states are ever more willing to extend existing jus ad bellum to cyber operations targeting data, though they do not dive any deeper into what they mean by ‘data’. This deviation from the kinetic approach is heralding a shift in the way cyber operations against Big Data may be handled under the jus ad bellum in the future.

Finally, this chapter will make a normative argument and a methodological recommendation. Normatively, cyber operations targeting Big Data are much more devastating than cyber operations against Small Data, therefore the jus ad bellum framework should distinguish between the severities of the two scenarios. Methodologically, any State statements on how the use of force framework applies to non-kinetic cyber operations should explicitly distinguish between Small Data and Big Data, given the normative position that this chapter takes on the difference between the two.

This chapter therefore contributes to the current body of scholarship by arguing that not all data is created equal. Up to this point, scholarship has addressed data as a monolith, without acknowledging the changing nature, volume, and sensitivity of data which we are witnessing with the emerging Big Data environment. Scholarship to date has largely failed to distinguish between data and Big Data, which is a critical distinction to make as this chapter will argue. While the law has by and large tolerated the cyber operations against data, it has only addressed such operations against Big Data by analogy to small data. As will be shown in this chapter, the two operations cannot be analogized.

Wurman on the "Civil Rights" Interpretation of the 14th Amendment

Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Reconstructing Reconstruction-Era Rights (Virginia Law Review, Forthcoming) on SSRN.  Here is the abstract:

It is conventional wisdom that the Reconstruction generation distinguished between civil rights, with respect to which the Fourteenth Amendment would require equality, and political and social rights, which would be excluded from coverage. This paper challenges that wisdom. It demonstrates that social rights were not a concept relevant to the coverage of Article IV’s Privileges and Immunities Clause (the Comity Clause), the precursor to the Fourteenth Amendment’s Privileges or Immunities Clause. Antebellum legal and political sources used the term “social rights” in a variety of ways, but none tracked the purported Reconstruction-era trichotomy of civil, political, and social rights; most uses of the term connected social rights to civil rights, which Article IV (and therefore the Fourteenth Amendment) reached.

The harder question is whether the Fourteenth Amendment reaches “public” rights and privileges as opposed to “private” rights. A close examination of antebellum jurisprudence suggests that public rights were excluded from the scope of Article IV because they were privileges of “special” citizenship but not “general” citizenship common to the citizens “in the several states.” Public privileges are likely included under the Fourteenth Amendment, however, which guarantees the privileges and immunities of citizens “of the United States” within particular states, including the privilege of all U.S. citizens to the public privileges of their own states to which they contribute through general taxation. If this framing is correct, then both the interracial marriage and school desegregation cases are easier to sustain on originalist grounds than prior studies have suggested.

Highly recommended.  Download it while it's hot!

Haque on Just War Theory & the Legal Prohibition on Aggressive War

Adil Ahmad Haque (Rutgers Law School; Rutgers Law School) has posted After War and Peace (The Individualisation of War: Rights, Liability, and Accountability in Contemporary Armed Conflict Edited by Dapo Akande, David Rodin, and Jennifer Welsh, Oxford University Press (Forthcoming)) on SSRN.  Here is the abstract:

This chapter traces some theoretical implications, for both law and moral philosophy, of the legal prohibition of aggressive war and armed force, with special emphasis on implications for the individualisation of war. It focuses on the application of human rights law during armed conflict, individual rights and duties under the law of armed conflict, and individual criminal responsibility.

The chapter argues that every killing in furtherance of an act of aggression, and every killing in violation of international humanitarian law, violates the human rights of those it kills. International humanitarian law does not give soldiers a right to fight irrespective of their cause, but instead confers a limited legal immunity from prosecution except for international crimes. Notably, general rules regarding official immunities do not apply during armed conflict to members of a state's armed forces, which may include a head of state. International law imposes different individual obligations on state leaders and ordinary soldiers in order to preserve the pragmatic compromise underlying combatant immunity.

As a result, the modern law of war tracks the revisionist just war theory associated with Jeff McMahan more closely than the conventionalist just war theory associated with Michael Walzer, though the transformation is not yet complete.

Highly recommended.  For readers interested in acquiring an overview of the philosophical literature, the Stanford Encyclopedia of Philosophy Entry on "War" may be helpful: https://plato.stanford.edu/entries/war/.

Viscusi on the Social Discount Rate

W. Kip Viscusi (Vanderbilt University - Law School; National Bureau of Economic Research (NBER); Vanderbilt University - Department of Economics; Vanderbilt University - Owen Graduate School of Management; Vanderbilt University - Strategy and Business Economics) has posted The Social Discount Rate: Legal and Philosophical Underpinnings on SSRN.  Here is the abstract:

Discounting of deferred impacts of government policies is a long-established practice that has been the target of substantial litigation and continued philosophical debate. Legal challenges to the social rate of discount have resulted in general acceptance of the principle of discounting at a nonzero rate for both monetary and nonmonetary impacts. Courts have displayed a general familiarity with discounting and often require transparent justification for the selection of the discount rate based on established scientific principles. The philosophical issues are more wide-ranging, and include whether nonmonetary impacts should be discounted, the use of the opportunity cost of capital or the social rate of time preference, the time frame that is pertinent for setting the discount rate, and determination of whose preferences should have standing. Intergenerational issues are particularly challenging, raising questions regarding which generation’s preferences should be recognized, the potential for dynamic inconsistencies arising from preferential discount rates, and intertemporal inequities. Benefit-cost analyses that include appropriate recognition of benefits and costs for future generations serve a constructive function in providing a mechanism for recognizing future effects on social welfare.

Highly recommended.

Dann on Liberalism & Post-Colonialism

Philipp Dann (Humboldt University - Chair for Public and Comparative Law) has posted Liberalism as Open Source: Constitutionalism and Post-Colonialism in the Global South on SSRN.  Here is the abstract:

Contestations of liberal ideas are very popular these days. But what does the debate look like, when analyzed through the lens of postcolonial theories or from the perspective of the South? Is there a basic incompatibility of liberal constitutionalism and post-colonialism, as some claim? Or is it rather the other way around: Can postcolonial or Southern perspectives highlight problems and potentials of liberal constitutionalism in especially productive ways?

Legal Theory Lexicon: The Priority of the Particular

Introduction

One kind of legal theory attempts to relate the mass of legal materials (cases, clauses, statutes, etc.) to a systematic set of principles.  Such theories may be normative: that is, some legal theories are frameworks for the prescriptive evaluation of legal rules.  Or the theory might be doctrinal: some legal theories attempt to describe the results in particular cases through the articulation of a set of general rules or principles.  Finally, there are legal theories that combine the normative and the descriptive: Dworkin's interpretive theory of law aims at producing a general theory of law that best "fits" and "justifies" the legal materials.  In each of these three cases, there is a metatheoretical question: what role do particulars (e.g., judgments about or the outcomes of individual cases) play in relationship to the more abstract, general, and universal propositions that make up the theory?

Once we begin to focus on this general theoretical question, it becomes apparent that many legal theorists assume that we must move from the particular to the general and that our general theories have priority over our particular judgments in cases of conflict.  But is this true?  This entry in the Legal Theory Lexicon examines "particularism"--the general view that particulars have priority over the general (or universal) in positive, normative, or interpretive legal theory.  As always, the Lexicon is written for law students, especially first year law students with an interest in legal theory.

The Basic Idea

Simplifying greatly, we can imagine two different relationships between the particular and the general in legal theory.

First, we might think that general propositions have priority, and that recalcitrant particulars must give way.  On this view, the legally correct outcomes in individual cases are determined by general propositions of law--for doctrinal theories.  And our moral intuitions about individual cases must give way to general moral propositions--for normative theories.  

Second, we might think that the particular has priority, and that general theories are falsified if they conflict with individual cases.  On this view, the legally correct outcomes in individual cases are determined by the way that legal actors (e.g., judges) have treated those cases: if a general statement of the law (in a court's reasoning or a statute) conflicts with particular judgment, then the general statement must be abandoned or qualified--for doctrinal theories.  Similarly, for normative legal theories, the priority of the particular implies that normative legal theory must answer to intuitions (or perhaps considered judgments) about particular cases.  This second view of the relationship between the general and the particular is sometimes summarized by the phrase, "the priority of the particular."

A Puzzle About Particulars in Legal Theory

At this point, you might be thinking, "What is all the fuss about?" or "Why should we care about
the priority of the particular?"  Particularism is a metatheoretical view--it goes to two highly abstract question: (1) how are theories about law confirmed or validated?, and (2) what is the relationship between normative theorizing and normative perceptions, intuitions, or judgments?  

In moral theory, these questions are in the domain of metaethics; we might call the equivalent realm of legal theory "metajurisprudence."  Lawyers and legal scholars rarely focus explicitly on these meta questions.  Even legal theorists rarely engage in systematic debate or discussion of this kind of question.  Nonetheless, there are some obvious puzzles about the relationship of particulars to general legal theories.  Consider the role of particulars (data or observations) in the empirical sciences.  If well-confirmed data conflict a scientific theory, there is a sense in which the theory is in serious trouble.  Of course, observation may be theory laden, and the interpretation of data is subject to revision.  But in some sense, we believe scientific theories are answerable to our particular beliefs about the world, and we don't think is is good scientific practice to "revise the data" in order to "fit the theory."

But in legal theory, the data does not seem recalcitrant in quite the same way.  If we have a powerful normative theory, then perhaps our intuitions are in error.  If we have a doctrinal theory that fits most of the cases, then perhaps the rest of the cases are in error.  Perhaps, but this sort of revision is called into question by the priority of particular.  Particularism suggests that our beliefs about individual cases are more reliable than our general theories.

Pragmatism and Anti-Theory

Particularism in legal theory may be related to another big idea--"pragmatism" or "legal pragmatism."  Pragmatists tend be skeptical about the value of big theories, and for that reason may be attracted to particularism.  A similar set of attitudes about the value of abstract theorizing underlies what is sometimes called "anti-theory."  Perhaps we can do without general, abstract, and universal theories altogether.  A strong version of particularism would seem to imply some kind of anti-theoretical view--at least at the view of first order normative, descriptive, or interpretive theories.

Alternatives to Particularism: The Method of Geometry and Reflective Equilibrium

What are the alternatives to particularism?  One possibility is what Rawls called "the method of geometry."  We start with normative axioms, normative propositions that are self-evidently true.  In the case of descriptive legal theory, it seems obvious that this method faces difficulties, because it is not clear what the set of legal axioms would be.  Indeed, the idea of "description" seems to assume that our starting point must be actual legal particulars and not a set of legal axioms.

The method of geometry seems more promising in the case of normative legal theory.  We would start with moral truths and then deduce the standards for normal evaluation of legal norms from those truths.  The difficulty with this method in a pluralist society is that the set of "moral truths" that are the subject of agreement may not be sufficiently rich to generate a normative legal theory that is both complete and capable of generating support.  For example, if we start with consequentialist axioms, deontologists will reject the theory--and vice versa.  Likewise, with religious and secular premises.

Another alternative to particularism is the method of reflective equilibrium, which is the subject of a separate entry in the Legal Theory Lexicon.

Conclusion

The issues raised by the priority of the particular are deep ones, and this Lexicon post hardly limns their surface--much less resolves them.  If you are interested in these issues, there is a substantial literature on particularism in moral philosophy--that's a good place to begin a more systematic investigation of particularism.

Related Lexicon Entries

• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 041: Metaethics
• Legal Theory Lexicon 053: It Takes A Theory To Beat A Theory
• Legal Theory Lexicon 056: Pragmatism
• Legal Theory Lexicon 069: Reflective Equilibrium

Online Resources

• Jonathan Dancy, Moral Particularism, Stanford Encyclopedia of Philosophy

Bibliography

• Jonathan Dancy, Ethics without Principles (Oxford: Oxford University Press 2006).
• Brad Hooker & Margaret Little (eds.), Moral Particularism (Oxford: Oxford University Press 2000).

(Last modified on May 8, 2022.)

Recent Twitter Threads That May Be of Interest to Readers of Legal Theory Blog

In connection with discussion of issues growing out the Dobbs case, there are some Twitter threads that may be of some interest to readers of Legal Theory Blog.  Here are the links:

Thread on the Originalism, the Adversary System, and the Role of Appellate Courts

Thread on Originalism and Strategy in Dobbs

Thread on Confidence About Original Public Meaning and the Constraint Principle

Legal Theory Bookworm: "The Chevron Doctrine" by Merrill

The Legal Theory Bookworm recommends The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State by Thomas W. Merrill.  Here is a description:

A leading expert on the administrative state describes the past, present, and future of the immensely consequential—and equally controversial—legal doctrine that has come to define how Congress’s laws are applied by the executive branch.

The Constitution makes Congress the principal federal lawmaker. But for a variety of reasons, including partisan gridlock, Congress increasingly fails to keep up with the challenges facing our society. Power has inevitably shifted to the executive branch agencies that interpret laws already on the books and to the courts that review the agencies’ interpretations.

Since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, this judicial review has been highly deferential: courts must uphold agency interpretations of unclear laws as long as these interpretations are “reasonable.” But the Chevron doctrine faces backlash from constitutional scholars and, now, from Supreme Court justices who insist that courts, not administrative agencies, have the authority to say what the law is. Critics of the administrative state also charge that < deference enables unaccountable bureaucratic power. Thomas Merrill reviews the history and immense consequences of the doctrine and suggests a way forward. Recognizing that Congress cannot help relying on agencies to carry out laws, Merrill rejects the notion of discarding the administrative state. Instead, he focuses on what should be the proper relationship between agencies and courts in interpreting laws, given the strengths and weaknesses of these institutions. Courts are better at enforcing the rule of law and constitutional values; agencies have more policy expertise and receive more public input. And, unlike courts, agencies are subject to at least some political discipline.

The best solution, Merrill suggests, is not of the either-or variety. Neither executive agencies nor courts alone should pick up the slack of our increasingly ineffectual legislature.

And from the reviews:

Tom Merrill is one of the brightest and best scholars of administrative law, and in particular of the Chevron doctrine, in his generation. This book sheds new light on the most controversial subjects in the law of the separation of powers and in administrative law. It is must-reading for any citizen who has an interest in the constitutionality of the administrative state.--Steven G. Calabresi, Northwestern University Pritzker School of Law

This book is a model of how to conduct rigorous, level-headed, and fair-minded analysis of a subject that has generated enormous legal controversy. There is no more judicious mind among American legal scholars than Thomas Merrill's.--Nicholas Parrillo, Yale Law School

Tom Merrill is one of the best scholars in the nation to undertake a book-length treatment of the Chevron doctrine. Thoughtful and nuanced, Merrill's The Chevron Doctrine will be a 'must-read' not only for any lawyer or scholar involved in the field of administrative law, but also for any scholar interested in American legal thought of the past half century.--John F. Duffy, University of Virginia School of Law

Merrill's interpretive and reform arguments in this fine work of scholarship are mature and sophisticated. This deeply considered work will enrich the ongoing debate.--Ronald M. Levin, Washington University School of Law

Download of the Week: "Emotions and Precedent" by White

The Download of the Week is Emotions and Precedent by Emily Kidd White.  Here is the abstract:

The philosophy of emotion raises complications for theories of precedent. This chapter argues that it is productive to think of the effect of some precedents as facets of legal reasoning that are related to the use and understanding of legal concepts as thick concepts. In legal reasoning, precedents are routinely invoked to explicate, and/or clarify the content of legal concepts that are at issue in a case. This chapter develops an argument by Bernard Williams, i.e., that one must avoid the risk of over-generalizing the relationship of emotions to thick concepts, by placing it in the context of legal reasoning. It argues that the several distinctive ways that emotions might interact with thick legal concepts pose challenges for any general theoretical account of precedent in legal reasoning. A focus on these different roles that emotions can play in judicial uses of precedent illuminates some of the more subtle ways in which these uses reveal held values, ways of seeing, and political commitments. The chapter finds that in at least some cases where a precedent is invoked to thicken the understanding of a legal concept at issue in a case, variations in the emotional architecture associated with that invocation will come in direct tension with the legal concept under examination, or with other legal values and principles that pertain to equality, and equal treatment under law.

Highly recommended.  Download it while it's hot.

de Vries on Critiquing Dictators Through Satire

Manfred F.R. Kets de Vries (INSEAD - Entrepreneurship and Family Enterprise) has posted In Praise of Dictators: A Swiftian Perspective on SSRN.  Here is the abstract:

This article takes a 'Swiftian perspective' to the question of dictatorship. Using satire to expose people’s idiocy in supporting dictatorships, it celebrates the benefits of this form of governance. At the same time, it highlights some of the downsides of democracy. It makes the tongue-in-cheek argument that democracies are unwieldy castles in the sky. The subtext, however, draws attention to the dangers of autocratic rule. It highlights how dictators contribute to the destruction of civil society, instigating corruption, terror, war, and even genocide. Furthermore, the article points out how dictators cement their autocratic rule, using fear to keep their citizens compliant. It also highlights how they will suppress free speech by controlling the flow of information. At the same time, the article emphasizes the fragility of democracies and the need to support them through a well-informed citizenry, an independent judiciary, a free press, free speech, solid civic institutions, and the right to demonstrate. The article ends by iterating that all these things are sacrificed in maintaining a dictatorship and how easily it can happen.

Mayer on International Law Obligations to Mitigate Climate Change

Benoit Mayer (The Chinese University of Hong Kong (CUHK) - Faculty of Law) has posted two papers on international law obligations and climate mitigation on SSRN:

Climate Change Mitigation as an Obligation under Human Rights Treaties? (115(3) American Journal of International Law 409-451 (2021)):

Judges and scholars have interpreted human rights treaties as obligating states to mitigate climate change by limiting their greenhouse gas emissions, an argument instrumental to the development of climate litigation. This Article questions the validity of this interpretation. A state’s treaty obligation to protect human rights implies an obligation to cooperate on the mitigation of climate change, the Article argues, only if and inasmuch as climate change mitigation effectively protects the enjoyment of treaty rights by individuals within the state’s territory or under its jurisdiction. As such, human rights treaties open only a narrow window on the applicability of general mitigation obligations arising under climate treaties and customary international law.

Climate Change Mitigation as an Obligation under Customary International Law (Yale Journal of International Law, Forthcoming):

Climate treaties impose few substantive obligations on the mitigation of climate change. This article explores customary law as an alternative source of such obligations. The task faces considerable methodological difficulties due to the tension between ascending and descending reasoning in the identification of customary law. The methodology that international courts tend to follow, this article argues, would likely lead to the identification of a customary obligation on climate change mitigation, but one that only requires states to comply with the standard of care that most of them generally follow—even if that points to significantly less ambition than what global mitigation objectives suggest. It could be difficult to assess a state’s requisite level of mitigation action, but compliance with customary law could be tested by breaking down the customary mitigation obligation into implied duties reflecting the measures that states would generally be expected to take when exercising due diligence.

Katyal on Judicial Review & Artificial Intelligence

Sonia Katyal (University of California, Berkeley - School of Law) has posted Democracy and Distrust in an Era of Artificial Intelligence (Daedalus, Journal of the American Academy of Arts & Sciences 2022) on SSRN.  Here is the abstract:

Our legal system has historically operated under the general view that courts should defer to the legislature. There is one significant exception to this view: cases in which it appears that the political process has failed to recognize the rights or interests of minorities. This basic approach provides much of the foundational justifications for the role of judicial review in protecting minorities from discrimination by the legislature. Today, the rise of AI decision-making poses a similar challenge to democracy’s basic framework. As I argue in this essay, the rise of three trends–privatization, prediction, and automation in AI–have combined to pose similar risks to minorities. In this essay, I outline what a theory of judicial review would look like in an era of artificial intelligence, analyzing both the limitations and the possibilities of judicial review of AI. Here, I draw on cases in which AI decision-making has been challenged in courts, to show how concepts of due process and equal protection can be recuperated in a modern AI era, and even integrated into AI, to provide for better oversight and accountability.

Highly recommended.  Download it while it's hot!

Ahmed on Social Movement Labor Unions in Public Defenders' Offices & Mass Incarceration

Zohra Ahmed (University of Georgia School of Law) has posted Bargaining for Abolition (Fordham Law Review, Vol. 90, No. 5 (2022)) on SSRN.  Here is the abstract:

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? I offer three different ways to think about labor in criminal court: (1) labor as a source of sociological value, (2) labor as an input that generates certain measurable outcomes, and (3) labor as a vehicle to advance abolitionist reforms. First, through their quotidian activities, criminal courts’ workers enact a practical philosophy that communicates lessons about who and how we value each other. Drawing on ethnographic accounts, I argue that criminal courts’ actors—prosecutors and judges, among others—engage in “violence work.” The violence is not only physical but also social and structural. Their labor weakens social bonds and entrenches group-level hierarchies, expressed as race, class, and ability. Second, labor is an input that determines the size of the criminal punishment system. The addition of more prosecutors and their increased productivity lie at the heart of the historic growth in prison admissions at the turn of the twentieth century. In turn, as advocates devise reforms to dismantle mass criminalization, shrinking prosecutors’ offices may be the key to true transformation. Third, labor is also a vital site for struggle. The labor lens illuminates the promise of a specific strategy: building social movement labor unionism in public defenders’ offices.

Crema & Solum on the Original Meaning of "Due Process of Law" in the Fifth Amendment

 Max Crema & Lawrence B. Solum (University of Virginia School of Law) have posted The Original Meaning of “Due Process of Law” in the Fifth Amendment (108 Va. L. Rev. 447 (2022)) on SSRN.  Here is the abstract:

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

Magnificent work by Max Crema, with modest contributions by myself.  Highly recommended.

This has many implications for the Supreme Court's due-process jurisprudence in both civil and criminal procedure.  One obvious example is that Mathews v. Eldridge and its progeny are wrongly decided from an originalist perspective.  Another is the International Shoe's "fair play and substantial justice test" (as applied to federal courts) cannot be squared with the original meaning of the Fifth Amendment.

Harris on Cash Bail & the Excessive Fines Clause

Barnett Harris (Georgetown University Law Center) has posted Is Misdemeanor Cash Bail an Unconstitutional Excessive Fine? (2021 Pepp. L. Rev. 72 (2022)) on SSRN.  Here is the abstract:

“[H]ere we are in 2018 . . . still litigating incorporation of the Bill of Rights. Really? Come on . . . .”
– Supreme Court Justice Neil Gorsuch

“[O]ur bail system—excuse the expression—is totally ass-backwards in every respect.”
– New York Court of Appeals Chief Judge Jonathan Lippman

The Excessive Fines Clause is one of the least developed clauses pertaining to criminal procedure in the Bill of Rights. In fact, the Supreme Court has only interpreted the Clause a few times in its entire history. Yet, on any given day, hundreds of thousands of people languish in jails without having been convicted of anything, because most of these people are unable to meet the bail amount a judge sets.

This Essay examines the surprisingly under-explored relationship between misdemeanor cash bail & pretrial detention and the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment, using the Supreme Court’s recent decision in Timbs v. Indiana, 139 S. Ct. 682 (2019) as an inroad into the broader topic. The Supreme Court’s recent decision in Timbs held that the Excessive Fines Clause applies to the states, thus constitutionally limiting governmental au-thority to impose economic sanctions. However, it may have done more than that. Since that decision, the line between a legitimate state interest and a punitive economic sanction in misdemeanor bail decisions is blurred, raising the interesting question of what makes a bail determination reasonable. This Essay sets out a few conceptions of the relationship between bail determinations and excessive fines, then shows how those conceptions flow naturally from the rationale of Timbs. The Essay concludes that the Constitution demands more protections for the accused at bail hearings, and the current system in many states fails constitutional scrutiny. 

Breckwoldt & Guillén on AI Related Patent Claims

Altair Breckwoldt Jurado & Rebeca Ferrero Guillén (Max Planck Institute for Innovation and Competition) have posted Vagueness in Artificial Intelligence: The ‘fuzzy logic’ of AI-related patent claims on SSRN.  Here is the abstract:

Artificial Intelligence is an emerging technology with an average growth rate of 64,70% in patent filings worldwide and 39,71% in Europe between 2015 and 2019, according to Espacenet queries. This trend has raised several concerns regarding the implications for Intellectual Property rights, including disclosure, which is one of the main components justifying the existence of the patent system. Despite its importance, this requirement has been disputed due to certain tendencies that distort the functions that the act of disclosure fulfils, such as promoting innovation, research, or teaching. With Artificial Intelligence-related patents being granted, the disclosure requirement is once again compromised, and perhaps even more due to the particularities that this branch of technology entails. In this sense, one main concern lies in the question of how Artificial Intelligence-related patents should be disclosed, as well as the fulfilment of this requirement. To this aim, two case studies are conducted to show the heterogeneity of compliance with this requirement, focusing on patents filed at the European Patent Office.

Fritz-Mauer on Access to Justice & Wage Theft

Matthew Fritz-Mauer (The Kelman Buescher Law Firm) has posted Naming, Blaming, and Just Plain Giving Up on SSRN.  Here is the abstract:

Millions of Americans experience civil justice problems each year, but most never assert their rights in the justice system. This “access to justice” crisis has long received attention from the legal profession, commentators, and bar associations. This analysis largely emphasizes unmet legal needs, and pushes to expand the availability of legal assistance. This narrow approach does not meaningfully examine understandings of “access” and “justice,” interrogate the problem within particular socio-legal contexts, or consider more radical policy solutions.

This Article does. It analyzes access to justice issues among low-wage workers suffering wage theft in Washington, D.C., in the wake of that city enacting one of the strongest workers’ rights regimes in the country. Through original qualitative and quantitative data, this Article evaluates whether these legal changes have improved access to justice for the working poor. While there has been some success on the margins, there has not been a meaningful shift, because the government is largely inactive and low-income people face many non-legal barriers to bringing claims. Using Denver, Colorado as a case study, this Article concludes that rights enforcers must fundamentally change their approach to tangibly improve access to justice.

Gulasekaram on Immigration Enforcement Preemption

Pratheepan Gulasekaram (Santa Clara University School of Law) has posted Immigration Enforcement Preemption (Ohio State Law Journal, Vol. 84, Forthcoming 2023) on SSRN.  Here is the abstract:

The Supreme Court’s 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in modern times, striking down several provisions of Arizona’s omnibus enforcement law. Notably, the Court did not limit preemption inquiry to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and executive branch enforcement policies. The landmark decision seemed to have settled the Court’s approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas’ prosecutions of noncitizens who used stolen identities to procure employment in violation of federal immigration law. In so doing, the majority opinion took aim at Arizona’s central premise, rejecting the relevance of presidential enforcement in immigration preemption.

This Article provides an urgently needed reappraisal of immigration preemption in the wake of Kansas. My primary claim is that immigration preemption requires a framework that accounts for the diminishing relevance of formal law, the discretionary enforcement options available to federal authorities, and the inherent liabilities associated with unauthorized status. I argue that presidential enforcement practices – as a distillation of competing statutory values, congressional appropriations, executive policy preferences, and allocation of agency resources – limn federal policy for immigration preemption purposes. In defending this claim, this Article recasts immigration preemption decisions from the past fifty years, revealing a long-standing judicial concern for federal enforcement practices. Second, this Article critiques Kansas for discounting federal enforcement practices, and defends a return to Arizona-like jurisprudence. Finally, it argues that this approach will not unduly aggrandize judicial or executive power, or imbalance federal-state authority over criminal enforcement.

Colangelo on Extraterritoriality and Conflict of Laws

Anthony J. Colangelo (Southern Methodist University - Dedman School of Law) has posted Extraterritoriality and Conflict of Laws on SSRN.  Here is the abstract:

This Article views the modern federal presumption against the extraterritoriality of U.S. law through the lens of conflict of laws. It argues that the presumption makes many of the same mistakes that conflict methodologies have already made, and sometimes the mistakes are worse. It then proposes a way to harmonize federal extraterritoriality and state choice of law to identify a superior approach to both.

Dixon on Criticisms of "Responsive Judicial Review" by Dixon

Rosalind Dixon (University of New South Wales (UNSW) - Faculty of Law) has posted In Defense of Responsive Judicial Review on SSRN.  Here is the abstract:

Responsive judicial review offers a new way of understanding the promise of judicial review as representation-reinforcing. Some scholars question its democratic foundations and Elyian associations, as well as the capacity of courts and individual judges to realize its aims. This article explores these concerns, and provides a partial set of answers.

Highly recommended.  And here is a link to Dixon's important forthcoming book: Responsive Judicial Review, which has already generated considerable discussion and much praise.

Mayson on "Personalized Law" by Ben-Shahar & Porat

Sandra G. Mayson (University of Pennsylvania Carey Law School) has posted But What Is Personalized Law? (University of Chicago Law Review Online, 2021) on SSRN.  Here is the abstract:

In Personalized Law: Different Rules for Different People, Omri Ben-Shahar and Ariel Porat undertake to ground a burgeoning field of legal thought. The book imagines and thoughtfully assesses an array of personalized legal rules, including individualized speed limits, fines calibrated to income, and medical disclosure requirements responsive to individual health profiles. Throughout, though, the conceptual parameters of “personalized law” remain elusive. It is clear that personalized law involves more data, more machine-learning, and more direct communication to individuals. But it is not clear how deep these changes go. Are they incremental—just today’s law with better tech—or do they represent a change in the very nature of legal rules, as the authors claim?

This Essay aims to help clarify the concept of “personalized law” by starting from the nature of legal rules. Drawing on the scholarship of Frederick Schauer, it argues that all rules must generalize in some way, then offers a taxonomy of different forms of generalization. With the framework in place, it becomes clear that personalized law entails two shifts: (1) from rules that prescribe specific conduct toward rules that prescribe a social outcome, like a risk or efficiency target, and (2) toward greater ex ante specification of what rules require of individuals. Each shift has different practical and normative implications. Lastly, the Essay raises two potential costs of such shifts that Personalized Law does not address at length: the likely disparate racial impact of social-outcome rules driven by big data, and the possible loss of communal experience in shared-rule compliance.

Recommended.  Link to the book in the abstract.

Taddeo & Blanchard on Moral Responsibility for Autonomous Weapons Systems

Mariarosaria Taddeo (University of Oxford - Oxford Internet Institute) & Alexander Blanchard (The Alan Turing Institute) have posted Autonomous Weapons Systems: A Moral Gambit on SSRN.  Here is the abstract:

In this article we focus on the attribution of moral responsibility for the actions of autonomous weapons systems (AWS). We begin our analysis with a description of the ‘responsibility gap’ and the characteristics of AWS that determine it, we then consider alternative approaches – collective moral responsibility and faultless distributed moral responsibility – to classic ethical approaches for the allocation of moral responsibility and assess their validity when considering AWS. We argue that both these approaches do not address the decoupling of the actions of these systems from the intentions of the human agents who design, develop, and deploy them. For this reason, they fail to address the responsibility gap. We then introduce the concept of meaningful moral responsibility, that is a moral responsibility attributed to individuals in a justified and fair way and which is accepted by individuals as an assessment of their own moral character. When meaningful moral responsibility can be attributed, the responsibility gap is resolved. We argue that, while this can be the case for the use of non-lethal AWS, it is not the case for the actions of lethal autonomous weapon systems.

Recommended.

Dellavalle on Granting Rights to Nature

Sergio Dellavalle (University of Turin - Faculty of Law; Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt - Cluster of Excellence Normative Orders) has posted Granting Rights to Nature? Considerations on Three Different Approaches to the Question on SSRN.  Here is the absttract:

According to the modern Western moral, political and legal thought, only living individuals be-longing to the human species have original rights. However, the claim has recently been made that inherent rights should also be acknowledged to entities which were formerly excluded from prima facia entitlements. Among the potential “new” rights bearers are entities belonging to the natural world, like sentient non-human animals, living beings in general, and even components of the natural environment like biotopes and ecosystems. Granting rights to natural entities has been vindicated by recurring to three different strategies. The first can be defined as the strategy of “rights as reasonable interests”: according to its core assumption, rights are to be granted to all entities that can be reasonably assumed to have identifiable interests related to their existence, for example an interest to flourish or not to feel pain. The second strategy argues that rights should be attributed to all entities that are characterized by an inherent and specific value derived from being part of an organic, long-established and highly complex network of mutual interactions within a holistic understanding of the world. The third strategy, finally, founds rights on the capacity of entities to carry out qualified agency, so that being a rights bearer depends on the capacity to display reflexive actions aiming at a certain purpose. The article analyses the consequences of the application of each strategy to every single dimension of the non-human natural world to which old or new rights are presumed to be attributed. Put differently, the first question will be on whether sentient non-human animals, living beings in general, or parts of the natural environment can be considered rights holders if we adopt the interest-based strategy. The following two sections will then address the same question with reference, respectively, to the holistic approach and to the agency strategy. The final section draws the conclusions from the previous analyses and sketches the outlines for a general theory of rights endowment to non-human entities in accordance with a revised and enhanced recognition-based approach.

Lewis on Precedent & the Rule of Law

Sebastian Lewis (University of Oxford) has posted Precedent and the Rule of Law (41 Oxford Journal of Legal Studies 873 (2021)) on SSRN.  Here is the abstract:

Courts may reason using precedents in various ways, but not all of them satisfy the rule of law. This article provides two ways that are compatible with this ideal, and one which is not. In doing so, the article aims to explain the practice of following precedent in law, and offer criteria for evaluating its value. Two claims are defended. First, courts always have a reason to decide precedent-governed disputes by following precedent. This reason is a minimum requirement of the rule of law, because in some cases this reason may be reinforced in the form of an obligation. Second, depending on whether courts have a reason or an obligation to follow precedent, two modes of precedential reasoning may be identified. The article provides them in detail. The modes, together with the considerations that are reasons in favour or against them, provide a valuable philosophical foundation of precedent-following law.

Nicely done, on a topic where it is difficult to break new ground. Recommended.

Solow-Niederman on Algorithmic Grey Holes & Access to Justice

Alicia Solow-Niederman (Harvard University - Harvard Law School) has posted Algorithmic Grey Holes (Journal of Law & Innovation (Forthcoming 2022)) on SSRN.  Here is the abstract:

It’s almost a cliché to talk about algorithms as “black boxes” that resist human understanding. This frame emphasizes opacity, suggesting that the inability to see inside the algorithm is the problem. If a lack of transparency is the problem, then procedural measures to enhance access to the algorithm—whether by requiring audits, by adjusting the technological parameters of the tool to make it more “explainable,” or by pushing back against proprietary claims made by private vendors—are the natural solution.

But the relentless pursuit of transparency blinks the reality that algorithmic accountability is more complicated than opening a box. Neither critics nor backers of algorithmic tools have reckoned with a related, yet distinct challenge that emerges when the state employs algorithmic methods: algorithmic grey holes. Algorithmic grey holes occur when layers of procedure offer a bare appearance of legality, without accounting for whether legal remedies are in fact available to affected populations. Although opacity about how an algorithm works may contribute to a grey hole, reckoning with a grey hole demands more than transparency. A myopic emphasis on transparency understates not only the consequences for an individual, but also how a lack of effective individual review and redress can have systemic consequences for rule of law itself. This class of potential costs has not been adequately recognized.

This Essay puts the challenge of algorithmic grey holes and the threat to rule of law values, particularly for criminal justice applications, front and center. It evaluates the individual and societal stakes not only for criminal justice, but also for front-line enforcement decisions and adjunction of benefits and burdens in civil settings. By forthrightly confronting these concerns, it becomes possible both to diagnose individual and societal algorithmic harms more effectively and to contemplate how technological tools might innovate in more helpful ways.

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