Legal Theory Blog

Legal Theory Lexicon: Intention

Introduction

Was it intentional? Did he intend to kill? What were the original intentions of the framers of the United States Constitution?

"Intention" is an important concept for legal theory. On the one hand, "intention" figures prominently in theories of criminal law and tort law. On the other hand, constitutional theory is interested in the idea of "the original intentions of the framers" and statutory interpretation sometimes looks to the "intentions of the legislature" or "congressional intent."  This post provides a very rough and ready introduction to the idea of "intent" and related notions of "intentionality" for law students (especially first year law students) with an interest in legal theory.
 

A Note on Terminology

Legal theory is mostly concerned with "intentions" of the ordinary sort: "The defendant intended to kill" or "The Framers intended 'commerce' to exclude 'agriculture' in the commerce clause."--uses like these involve the ordinary legal use of "intention." There are, however, two related philosophical concepts that might be confused with this sense of intention. Philosophers use the word "intentionality" to refer to the ability of mental states to represent things, properties and states of affairs: in this special sense, the category of "intentional mental states" is very large--including perceptual mental states for example. And philosophers also have a more technical concept of "intensionality"--spelled with an "s" rather than a "t" after the second "n"--that is used to refer to an important logical feature of words and sentences. A sentence is an intensional context if its truth value is sensitive to the substitution of referentially equivalent descriptions: don't worry, the jargon will be explained!.  Ordinary intentions exhibit intentionality, intention sentences are intensional--hence the potential for confusion.

This post focuses on the most important roles that "intention" plays in law and legal theory.

Actions Are Intended Under a Description

Jane hears a knock on the door and sees someone in the uniform of a package delivery company with a package. She invites the person in. She does not know that the person she has invited into her home is "the Westside rapist"--a serial rapist who disguises himself as a delivery person. If we ask her, did you intend to let "him" in, her answer will depend on the description we give. Did you intend to let the man in the delivery uniform in? Her answer will be "Yes." Did you intend to let the Westside rapist in? Her answer will be "No." The lesson of this example is that actions are intentional under a description. The very same individual was both "the man in the delivery uniform" and "the Westside rapist," but Jane's intentions were not the same with respect to the two different descriptions.

Transparent and Opaque Contexts

Actions are intentional under a description. Because of that fact, philosophers say that intention is a referentially opaque context. Boy, that is mouthful. What does that mean? Let's take a context that does not involve intentionality. The sentence "The Westside rapist entered Jane's house" does not involve an attribution of an intention. And we can substitute a different description for "Westside rapist" without affecting the truth value of the statement. Assuming that the Westside rapist did enter Jane's house and that his name was Norman Heathcliff, then all of the following statements would be true:

The Westside rapist entered Jane's house.--True. Norman Heathcliff entered Jane's house.--True. The man in the delivery uniform entered Jane's house.--True. The man on he porch entered Jane's house.--True.

We can substitute any description that refers to "Norman Heathcliff" and the truth value of the sentence is unaffected. A sentence that has this property is called "referentially transparent" or "an extensional context."

Now, let's go back to intention. Suppose that Jane lets the man into her house, but does not know that he is the Westside rapist or that he is named "Norman Heathcliff." Truth value now will vary depending on how the man is described :

Jane intended to let the man in the delivery uniform into her house.--True. Jane intended to let the Westside rapist into her house.--False. Jane intended to let Norman Heathcliff into her house.--False. Jane intended to let the man on the porch into her house.--True.

But the four descriptions all refer to the same man. Because you cannot substitute referentially equivalent descriptions into expressions of intentions, we say that such expressions are "referentially opaque" or that they are "intensional" contexts. (Notice again that intensional was spelled with an "s".)

The distinction between opaque and transparent contexts is fundamental to the philosophy of language, and this distinction figures prominently in philosophical writing about "intention." This may all sound a bit abstract, but this distinction is worth mastering. If you don't know it, you will not be able to follow any really sophisticated discussion about intention.

What difference does the distinction between referentially transparent and opaque contexts make to the law?  That's a big question, but here is one example. Some theories of constitutional or statutory interpretation assert that questions about the applicability of a legal rule can be settled by reference to the intentions of the authors of the statute. One line of attack on this view focuses on the question whether a collective body (e.g. a legislature or constitutional convention) has intentions in the same sense as does an individual. Putting that objection to the side, the distinction between opaque and transparent contexts can be used to build a different sort of objection. Suppose that we have only one legislator, Rex, and that Rex enacts a legal rule. Now a judge, Solomon, must apply the rule in a case where the meaning of the rule is either vague or ambiguous. Can Solomon simply apply the rule as Rex would intend? In some cases, the answer to this question may be "yes," but not in all. Why not? Because Rex may have intended the rule to apply to the case under some descriptions of the case, but not under others. Boy, that's abstract. Can you make your point more concrete?

Consider this example. The same Congress that enacted the 14th Amendment's equal protection clause also segregated the schools of the District of Columbia. Suppose that this Congress had the following two intentions: (1) Congress intended that the equal protection clause should prohibit discrimination on the basis of race, and (2) Congress intended that the equal protection clause should not prohibit segregation of the public schools. Now suppose that we believe a third thing: segregation of the public schools is discrimination on the basis of race. Given this situation, the "intentions of Congress" cannot directly settle a particular case, e.g. Brown v. Board of Education. Under one description, Congress would intend that the case should be decided for Brown; under another description, Congress would intend that the case should be decided for the Board. Both descriptions are true of the case.

Of course, I haven't developed this objection or the possible responses in a deep or thorough way. There is lots more to say. But the point is this. Legal rules are the product of intentional actions. Like all actions, lawmaking is intentional under a description. This means that statements about legislative intentions are referentially opaque. But when we apply a legal rule to a fact situation, we can describe the facts in many different ways. (A vast number of descriptions can refer to any particular legal dispute.) If intentions are to be used to as the basis for interpreting legal rules, it cannot be on the basis of a theory that says only, "Decide the case as the intentions of the lawmaker require." More will be required to make such a theory work.

Intention and Foreseeable Consequences

Does "intending an action" make a difference to either moral or legal responsibility? The distinction between intentional and unintentional action certainly seems to be important to both tort law and criminal law. Tort law differentiates between intentional torts and torts based on negligence or strict liability. Criminal law involves what is called mens rea or the "mental state" that is an element of the crime. In ordinary morality, we differentiate between intentional infliction of harm as more culpable than mere negligence.

Most law students encounter the problem of foreseeable but unintended consequences in both criminal law and torts. Consider the following examples:

--Example One: Ben has a gun. He aims at Alice and shoots, hoping to kill her. Her death was what he was trying to accomplish.

--Example Two: Carlos plants a bomb under the bridge. He wants to destroy the bridge, but he also knows that when he triggers the bomb Dawn is on the bridge right over the powerful bomb. Carlos regrets that Dawn died, and he had hoped that by some miracle Dawn would live.

--Example Three: Edgar is holding Francis and Gertrude captive. When Edgar's demands aren't met, he executes Francis. Edgar regrets that he had to do this, but he believes this is the only way that he will be able to intimidate Francis and Gertrude's employer into paying a ransom for Francis.

--Example Four: Harry shoots in the air on New Year's Eve. The bullet goes up and comes down, killing Ingrid. Harry did not intend to kill anyone, but he did recognize that there was a small risk that his bullet might strike and injure or kill.

In all four cases, we can say that one person killed another: Ben killed Alice, Carlos killed Dawn, Edgar killed Francis, and Harry killed Ingrid. But each case differs with respect to intentionality:

In example one, Ben intended to kill Alice and her death was his end.

In example two, Carlos intended to blow up the bridge and Dawn's death was a foreseen and very likely consequence of this intentional act, but Carlos did not directly intend to kill Dawn.

In example three, Edgar intended to kill Francis, but her death was a means to a further end--payment of the ransom.

In example four, Harry did not intend to kill Ingrid, but his intentional act foreseeably resulted in her death.

Are these cases alike or different? Morally or legally? Of course, those are big questions, but we can make a little progress on them. Cases one, two, and three are usually considered to be indistinguishable so far as culpability is concerned: in all three cases, the actor intends the death of the victim. Case four is usually considered to be distinguishable from cases one, two, and three: case four involves negligence which may be culpable but is not as blameworthy as intentional killing. Case two--where the Dawn's death is foreseen as highly likely but is not desired--is sometimes said to involve "oblique intention." Even though the death in case two was not directly intended, it is nonetheless the natural and foreseeable consequence of the intended action (blowing up the bridge while someone is on it). 

Trolley Problems

In all four cases described above, the action that results in death is clearly wrongful. But that is not so clear in the famous "Trolley Problem"--first posed by Philippa Foot.  Here is a statement of the problem:

A trolley is running out of control down a track. In its path are 5 people who have been tied to the track by a mad philosopher. Fortunately, you can flip a switch which will lead the trolley down a different track. Unfortunately, there is a single person tied to that track. Should you flip the switch with the result that one will die instead of five?

Most philosophers agree that it is morally permissible to flip the switch. The philosopher and legal theorist John Mikhail has done a series of experiments that confirm that most ordinary people agree. If you pull the switch, you act intentionally and you cause the death of the one person. Now consider a second problem, "Organ Harvesting":

You are a surgeon performing elective surgery on a healthy person. Five other patients are on the verge of death, but could be saved if you killed your healthy patient and harvested her organs. Should you kill your patient?

Almost everyone (except perhaps some hard-core act utilitarians) agrees that killing the patient is morally impermissible. Both cases involve causing the death of one to save five. But in the "Trolley Problem," you do not directly intend the death; in the Trolley problem, you may hope that through some miracle the one person escapes death. In "Organ Harvesting," on the other hand, the surgeon must intend the patient's death. The organs can only be harvested if the patient is killed. Perhaps it is the intention to kill that makes the difference to our moral intuitions.

Our discussion of the Trolley Problem has been very brief and superficial. For more, you can follow this link. For our purposes, the point of the trolley problem is to suggest that intention is potentially important to questions of culpability.

Warning

As with many topics in the Lexicon, we have only skimmed the surface.  Experts on intentionality in philosophy and criminal law theory would surely disagree with some of what I have said and would have much more to say.

Conclusion

Every legal theorist needs a basic mastery of "intention." But this is a very deep topic. If you are drawn to the theory of criminal law or the theory of torts or to constitutional theory or statutory interpretation, you will want to know more about "intent." Hopefully, this entry will get you started.

Related Lexicon Entries

• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction

Bibliography

• G.E.M. Anscombe, Intention (2d ed. Harvard University Press 2000).

Resources on the Internet

• George Wilson, Action, Stanford Encyclopedia of Philosophy
• Alison McIntry, Doctrine of Double Effect, Stanford Encyclopedia of Philosophy
• Frances Howard-Snyder, Doing vs. Allowing Harm, Stanford Encyclopedia of Philosophy
• Melvin Fitting, Intensional Logic, Standford Encyclopedia of Philosophy
• Marga Reimer, Reference, Stanford Encyclopedia of Philosophy

(This entry was last revised on May 28, 2023.)

Legal Theory Bookworm: "America before 1787" by Elster

The Legal Theory Bookworm recommends America before 1787: The Unraveling of a Colonial Regime by Jon Elster.  Here is a description:

An original account, drawing on both history and social science, of the causes and consequences of the American Revolution

With America before 1787, Jon Elster offers the second volume of a projected trilogy that examines the emergence of constitutional politics in France and America. Here, he explores the increasingly uneasy relations between Britain and its American colonies and the social movements through which the thirteen colonies overcame their seemingly deep internal antagonisms.

Elster documents the importance of the radical uncertainty about their opponents that characterized both British and American elites and reveals the often neglected force of enthusiasm, and of emotions more generally, in shaping beliefs and in motivating actions. He provides the first detailed examinations of “divide and rule” as a strategy used on both sides of the Atlantic and of the rise and fall of collective action movements among the Americans. Elster also explains how the gradual undermining in America of the British imperial system took its toll on transatlantic relations and describes how state governments and the American Confederation made crucial institutional decisions that informed and constrained the making of the Constitution.

Drawing on a wide range of historical sources and on theories of modern social science, Elster brings together two fields of scholarship in innovative and original ways. The result is a unique synthesis that yields new insights into some of the most important events in modern history.

And from the reviews:

"Amazing, sensational, brilliant, wise."---Cass Sunstein

“This book is a bold and original piece of research, and an intriguing interdisciplinary investigation. Elster is one of the foremost thinkers of his generation, renowned as a cogent analyst of social ‘mechanisms’ as well as a fierce critic of occult claims in the social sciences. Bringing these skills and aptitudes to historical material, he offers a fresh contribution to the study of the past in general as well as of the American revolutionary period specifically. This is a work of acute intelligence and brilliant insight, and should be welcomed by historians, social scientists, and political theorists alike.”―Richard Bourke, University of Cambridge

The first book in the trilogy is France before 1789: The Unraveling of an Absolutist Regime.

Download of the Week: "The Structure and Legal Interpretation of Computer Programs" by Grimmelmann

The Download of the Week is The Structure and Legal Interpretation of Computer Programs by James Grimmelmann.  Here is the abstract:

This is an essay about the relationship between legal interpretation and software interpretation, and in particular about what we gain by thinking about computers and programmers as interpreters in the same way that lawyers and judges are interpreters. I wish to propose that there is something to be gained by treating software as another type of law-like text, one that has its own interpretive rules, and that can be analysed using the conceptual tools we typically apply to legal interpretation. In particular, we can usefully distinguish three types of meaning that a program can have. The first is naive functional meaning: the effects that a program has when executed on a specific computer on a specific occasion. The second is literal functional meaning: the effects that a program would have if executed on a correctly functioning computer. The third is ordinary functional meaning: the effects that a program would have if executed correctly and was free of bugs. The punchline is that literal and ordinary functional meaning are inescapably social. The notions of what makes a computer ‘correctly functioning’ and what makes a program ‘bug free’ depend on the conventions of a particular technical community. We cannot reduce the meaning and effects of software to purely technical questions, because although meaning in programming languages is conventional in a different way than meaning in natural languages, it is conventional all the same.

Highly recommended.

Gebru on Communal Authorship

Aman Gebru (University of Houston Law Center) has posted Communal Authorship (University of Richmond Law Review, Forthcoming) on SSRN.  Here is the abstract:

A literary or artistic expression created by an individual author fits neatly in the copyright system. Many of the rules were developed with the sole author in mind. Thus, copyright law struggles to govern expressions generated by teams. But even in such scenarios, recently developed joint authorship rules have addressed complicated ownership questions. In contrast to solo and team-authored works, the copyright system fails in a third category, what this Article labels communal authorship. The Article uses four case studies—hackathons, memes, dance crazes, and traditional cultural expressions—to explain the mismatch. It describes communal authorship as having the key features of numerosity, informality, temporality, and intentionality—features that make the applicability of copyright law challenging. The large-scale nature of the collaboration, the absence of a central figure with creative control, the dynamic nature of the work, and the strong norm of sharing, make communal authorship unique. The mismatch between copyright law and communal authorship results in confusion which in turn discourages creative expression and enables some to appropriate value created by others. Through the communal authorship theory, the Article offers a novel analytical framework to examine the governance of communally authored works which are and will continue to be important forms of expression, especially in digital platforms.

Grimmelmann on Legal Interpretation of Computer Programs

James Grimmelmann (Cornell Law School; Cornell Tech) has posted The Structure and Legal Interpretation of Computer Programs (1 Journal of Cross-Disciplinary Research in Computational Law no. 3, art. 19 (2023)) on SSRN.  Here is the abstract:

This is an essay about the relationship between legal interpretation and software interpretation, and in particular about what we gain by thinking about computers and programmers as interpreters in the same way that lawyers and judges are interpreters. I wish to propose that there is something to be gained by treating software as another type of law-like text, one that has its own interpretive rules, and that can be analysed using the conceptual tools we typically apply to legal interpretation. In particular, we can usefully distinguish three types of meaning that a program can have. The first is naive functional meaning: the effects that a program has when executed on a specific computer on a specific occasion. The second is literal functional meaning: the effects that a program would have if executed on a correctly functioning computer. The third is ordinary functional meaning: the effects that a program would have if executed correctly and was free of bugs. The punchline is that literal and ordinary functional meaning are inescapably social. The notions of what makes a computer ‘correctly functioning’ and what makes a program ‘bug free’ depend on the conventions of a particular technical community. We cannot reduce the meaning and effects of software to purely technical questions, because although meaning in programming languages is conventional in a different way than meaning in natural languages, it is conventional all the same.

Highly recommended.

Sachs on Legal and Moral Obligation

Stephen E. Sachs (Harvard Law School) has posted According to Law (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN.  Here is the abstract:

What we ought to do, according to law, is not always what we ought to do, given the existence of law. Sometimes we merely wish to know what an existing legal system says we should do, based on the prevailing rules in a particular time and place. And sometimes we need to know what we should actually do, in the moral circumstances that this legal system presents.

Many fights between positivists and natural lawyers result from muddying these two inquiries. But we have good reasons, intellectual and moral, to keep them distinct. Prevailing social rules might have no moral force on their own, but those who make claims about them owe their audiences a moral duty of candor. And the stronger our moral commitments, the more reason we might have to approach existing legal systems warily.

Insisting that the law already reflects good morals can blind us to some very real flaws in our social rules—and to the need for some very hard work in reforming them. In this respect, common-good-constitutionalist claims too often have all “the advantages of theft over honest toil”: they can lead us to wish away precisely those disagreements and failings that make social and political institutions necessary.

Highly recommended.

Barzun and Goldberg on "The Nature of the Judicial Process" by Cardozo

Charles L. Barzun (University of Virginia School of Law) & John C. P. Goldberg (Harvard Law School) have posted Introduction: The Nature of the Judicial Process at 100 (Yale Journal of Law and the Humanities) on SSRN.  Here is the abstract:

This short essay introduces a symposium issue of the Yale Journal of Law and the Humanities honoring the centenary of the publication of Benjamin Cardozo’s The Nature of the Judicial Process. The essay explains our motivating rationale for the symposium and then briefly summarizes the essays and comments that comprise it. The papers, which range from the historical to the philosophical to the literary, include contributions from Ken Abraham & G. Edward White, Amalia Amaya, Aditi Bagchi, Shyamkrishna Balganesh, Charles Barzun, John Goldberg, Leslie Kendrick, Irit Samet, Henry Smith, Bernadette Meyler, Konstanze von Schütz, and Benjamin Zipursky.

Recommended.

Sloss on Dobbs and Bruen

David L. Sloss (Santa Clara University - School of Law) has posted Guns, Abortion, and Courts (Santa Clara Law Review, Vol. 56, (Forthcoming)) on SSRN.  Here is the abstract:

The Supreme Court decided both Dobbs v. Jackson Women’s Health and New York State Rifle v. Bruen in June 2022. Bruen involves gun rights and incorporation doctrine. Dobbs addresses abortion rights and substantive due process (SDP). However, the doctrinal distinction between SDP and incorporation is untenable. Both doctrines are rooted in the Fourteenth Amendment Due Process Clause; neither finds support in the text or original understanding of the Fourteenth Amendment.

The Court applies the same historical test for both SDP and incorporation cases to determine which rights the Due Process Clause protects. Both doctrines address legal issues where states traditionally enjoyed broad autonomy. The Court’s historical test fails to provide a principled justification for the central feature of both doctrines: the decision to replace a consistent historical tradition of state autonomy with a new federal constitutional rule that mandates national uniformity.

Before WW II, the Court treated SDP and incorporation as a single doctrine; it invoked natural law to justify that doctrine. This article contends that natural law provides the only theoretically coherent rationale for the doctrine. The article defends a natural law test linked to the human rights principles in the Universal Declaration of Human Rights.

The human rights (HR) test offers three main advantages over the historical test. First, the HR test is more compatible with the constitutional principles of dual sovereignty and legislative primacy. Second, the HR test is less subjective and less prone to manipulation than the historical approach. Third, the natural law, HR theory provides a principled justification for the decision to replace a historical tradition of state autonomy with a uniform, federal constitutional rule. Under the HR test, the right to bear arms does not qualify as a fundamental right. In contrast, there is a plausible argument that a woman’s right to terminate her pregnancy is a fundamental right, but that argument is not a slam dunk.

Niszczota on Research Co-Created by AI

Paweł Niszczota (Poznań University of Economics and Business - Humans & AI Laboratory (HAI Lab)) & Paul Conway (University of Southampton) has posted Judgments of Research Co-Created by Generative AI: Experimental Evidence on SSRN.  Here is the abstract:

The introduction of ChatGPT has fueled a public debate on the use of generative AI (large language models; LLMs), including its use by researchers. In the current work, we test whether delegating parts of the research process to LLMs leads people to distrust and devalue researchers and scientific output. Participants (N=402) considered a researcher who delegates elements of the research process to a PhD student or LLM, and rated (1) moral acceptability, (2) trust in the scientist to oversee future projects, and (3) the accuracy and quality of the output. People judged delegating to an LLM as less acceptable than delegating to a human (d = -0.78). Delegation to an LLM also decreased trust to oversee future research projects (d = -0.80), and people thought the results would be less accurate and of lower quality (d = -0.85). We discuss how this devaluation might transfer into the underreporting of generative AI use.

Cope on Experimental Studies on Law's Normative Force

Kevin L. Cope (University of Virginia School of Law) has posted Experimental Studies on the Normative Force of Law on SSRN.  Here is the abstract:

An important question in legal theory and policy is when people are willing to put aside their policy preferences to uphold higher-order legal values. That is, when does constitutional or international law have “normative force”? Around two dozen experimental studies have attempted to measure this question empirically, but their designs contain an inherent limitation. Subjects in the treatment group whose priors are strongly contrary to the treatment message on the legality of a policy are effectively “treatment resistant”: it is difficult to successfully treat them because their prior beliefs on the issue are entrenched. Where a significant portion of the treatment and/or control group is not successfully treated, the results will be biased towards a null finding. This article first formally models the mechanism underlying experiments on law's normative force. Using new data from a survey experiment conducted in the United States in spring 2022 among a representative sample of U.S. residents, I then demonstrate a solution to the problem of treatment resistance. The experimental design uses a post-treatment treatment uptake test, which allows me to use the experimental treatment as an instrumental variable, which in turn allows me to measure the effect of the real explanatory variable of interest: a person's true belief about a policy's higher-order lawfulness. My insight implies that the backfire effects documented by some studies do not reflect a negative response against the legal source per se, but instead result from an experimental research design relating to hot-button issues. These findings should lead us to re-evaluate both the existing body of experimental studies on law's normative force, and how we conduct future research in this domain.\

Highly recommended!

Stevenson on Criminal Justice Reform and the Structure of the Social World

Megan T. Stevenson (University of Virginia School of Law) has posted Cause, Effect, and the Structure of the Social World on SSRN.  Here is the abstract:

This Essay is built around a central empirical claim: that most reforms and interventions in the criminal legal space are shown to have little lasting effect when evaluated with gold standard methods. While this might be disappointing from the perspective of someone hoping to learn what levers to pull to achieve change, I argue that this teaches us something valuable about the structure of the social world. When it comes to the type of limited-scope interventions that lend themselves to high-quality evaluation, social change is hard to engineer. Stabilizing forces push people back towards the path they would have been on absent the intervention. Cascades—small interventions that lead to large and lasting changes—are rare. And causal processes are complex and context-dependent, meaning that a success achieved in one setting may not port well to another.

This has a variety of implications. It suggests that a dominant perspective on social change—one that forms a pervasive background for academic research and policymaking—is at least partially a myth. Understanding this shifts how we should think about social change and raises important questions about the process of knowledge generation.

Highly recommended.  Download it while it's hot!

Lee on the Admiralty Clause

Thomas H. Lee (Fordham University School of Law) has posted The Judicial Power-Admiralty Clause (Heritage Guide to the Constitution (3d. edition, forthcoming)) on SSRN.  Here is the abstract:

This Essay explains the text and original meaning of “all Cases of admiralty and maritime jurisdiction” in Article III of the U.S. Constitution, its background history, its implementation by the First Congress, key judicial precedents interpreting it, and the open question of what Erie doctrine means for the centuries-old historical practice of federal courts applying the maritime law of nations in “all Cases of admiralty and maritime jurisdiction.”

Article III does not define what constitute “all Cases of admiralty and maritime jurisdiction.” Understanding this Article III judicial power as a matter of text and original meaning thus requires examination of relevant English, colonial, and Articles of Confederation history; the Constitutional Convention and state ratification conventions; and subsequent judicial precedents. A backwater today, the admiralty and maritime jurisdiction was the most vital of the nine categories of Article III judicial power in the early United States because of: (1) the need for uniform rules and adjudication of maritime cases for a new coastal nation dependent on maritime trade among themselves and with Europe and its colonies; (2) the negative experience of divergent state admiralty courts during the War of Independence, which created friction among the states and with foreign states and led to the establishment of the first national court of appeals; and (3) the criticality of port customs duties for early federal government revenues.

Calvano, Calzolari, Denicolò, & Pastorello on AI Recommendations and Competition

Emilio Calvano (University of Bologna - Department of Economics; University of Toulouse 1 - Department of Economics; CSEF - University of Naples Federico II - Centre for Studies in Economics and Finance (CSEF)), Giacomo Calzolari (European University Institute - Economics Department (ECO); Centre for Economic Policy Research (CEPR); University of Bologna), Vincenzo Denicolò (University of Leicester), & Sergio Pastorello (University of Bologna - Department of Economics) have posted Artificial Intelligence, Algorithmic Recommendations and Competition on SSRN.  Here is the abstract:

We present a methodology for analyzing the impact of algorithmic recommendations on product market competition, addressing concerns that have been raised in both academic and policy circles regarding their potential anti-competitive effects. Our analysis demonstrates that recommender systems (RSs) lead to higher market concentration and prices compared to a scenario where algorithmic recommendations are unavailable and consumers rely solely on individual search. However, RSs also improve the match between products and consumers and reduce the need for expensive search processes. By accounting for both the positive and negative effects, we find that RSs are likely to increase consumer surplus for reasonable parameter values. However, increasing the amount of data available to the algorithms may lead to a reduction in consumer surplus. We also examine the potential for manipulation of recommendations and its impact on competition, finding that such manipulation is more likely to represent an exclusionary abuse than an exploitative one.

Teichman on Criminal Liability for Failure to Report Criminal Activity

Doron Teichman (Hebrew University of Jerusalem - Faculty of Law) has posted Evidentiary Graded Punishment: A New Look at Criminal Liability for Failing to Report Criminal Activity (Criminal Law and Philosophy, (Forthcoming)) on SSRN.  Here is the abstract:

This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime.

Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. As the analysis shows, while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty.

Kimble on Rule-of-Law Judges

Joseph Kimble (WMU–Cooley Law School) has posted Rule-Of-Law Judge? That’s Code for Ideologically Conservative Judging (Michigan Lawyers Weekly, February 15 2023) on SSRN.  Here is the abstract:

Judges often proclaim—typically during a political campaign—that they are a "rule-of-law judge." This commentary calls that description “a clichéd truism." Beyond that, though, what’s wrong with the description? First, it’s hopelessly simplistic. The second objection is that it signals a so-called textualist approach to judging. The commentary briefly discusses the deficiencies of textualism and explains why it has become the brand name for ideologically conservative judging.

Green on Blameworthiness and Homicide

Stuart P. Green (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Elements of Blameworthiness in the Law of Homicide: Harmfulness, Wrongness, and Culpability (Routledge International Handbook on Criminal Responsibility, Forthcoming) on SSRN.  Here is the abstract:

The concept of blameworthiness plays a central role in the retributive theory of criminal law, in both its negative and positive forms. But what exactly makes conduct blameworthy? In this chapter, I seek to develop a framework for thinking systematically about that question. In particular, I identify a collection of three basic “elements” -- harmfulness, wrongness, and culpability -- to which the concept of blameworthiness can be reduced. All three terms appear widely in the literature of criminal law theory, but they have often been used inconsistently and without clear definition. What one theorist calls “culpability” another calls “wrongness,” and vice versa. Concepts that should be understood as analytically distinct are conflated. One or more key elements is left out. The relationship among the three concepts is insufficiently explained. Focusing particularly on the conduct that underlies the homicide offenses, I show what the three key concepts mean on their own, in relation to each other, and with respect to criminal law defences such as consent, duress, and necessity. Special attention is given to questions about which of these elements can exist in the absence of the others -- if harmfulness can exist without wrongness, wrongness without harmfulness, harmfulness without culpability, culpability without harmfulness, culpability without wrongness, and wrongness without culpability.

Fontana & Schleicher on Private Supreme Courts

David Fontana (George Washington University Law School) & David Schleicher (Yale University - Law School) has posted The Basketball Court.  Here is the abstract:

Public law scholars often consider how to separate power among and within governmental entities in order to encourage that power to be used effectively. However, public law scholars only rarely bring the insights they have developed about the separation of powers to bear on questions of how to design private business firms. But these firms often need their own private separation of powers to diffuse power among their officials and ensure compliance with foundational firm objectives.

This Article considers an emerging form of the private separation of powers: a private supreme court-like institution internal to a single firm. The consistent application of firm rules may be commercially valuable in some contexts, and private supreme courts can help provide firms with that kind of consistency.

We consider the case for private supreme courts from the perspective of one illustrative example: sports leagues, and, in particular, the National Basketball Association (“NBA”). We argue that the NBA should create a “Basketball Court,” a somewhat-independent adjudicatory body that uses the tools of judicial decision-making to interpret league rules in a consistent way that can provide commercial value to the NBA. Creating a court-like body would promote the ability of the NBA to convince spectators of the fairness of competition, encourage casual spectators to make the types of emotional and financial investments that turn them into rabid fans, and dissuade governments from regulating their sports.

We pattern our discussion of a court-like structure on the Oversight Board created by Facebook (now Meta) in 2018. The Oversight Board has largely been considered for what it means for speech, but we are interested in what it means for private institutional design more generally. Creating a court-like institution with independent judges writing opinions justifying their interpretations of private firm rules will be desirable for many, the NBA included.

Wu on the President's Role in Antitrust Policy

Tim Wu (Columbia University - Law School) has posted The President's Role in Antitrust Policy (Forthcoming, Journal of Antitrust Enforcement (2023)) on SSRN.  Here is the abstract:

One of the major institutional developments in antitrust enforcement and competition policy over the first term of the Biden Administration has been a return to an active policy-setting role by the Presidency. This short piece describes those changes, puts them in a historical context, and defends the concept of significant Presidential involvement in antitrust policy.

Recommended.

Leal-Arcas, Gasimov, & Reddy on Energy Security, Decarbonization, and Environmental Justice

Rafael Leal-Arcas (Queen Mary University of London, School of Law), Ahad Gasimov (Tel-Aviv University), & Vundhyala Shanthan Reddy (Tel-Aviv University) have posted Energy Security, Decarbonization, and the Environmental Justice Movement (Sustainability in Environment, Vol. 8, No. 2, pp. 53-66, 2023) on SSRN.  Here is the abstract:

This article will analyse two key challenges of today: 1) energy security and decarbonization in the context of the Unit ed Nations sustainable development goals, and 2) decarbonization and energy security from the perspective of environmental justice. Energy security and decarbonization are integral components of the United Nations Sustainable Development Goals (SDGs). Specifically, they are addressed in SDG 7, which aims to ensure universal access to clean and affordable energy. Access to energy is crucial for the development of vital sectors such as agriculture, business, communications, education, healthcare, and transportation, and a lack of access to energy can impede human and economic development. In addition, the effects of climate change are disproportionately borne by those residing in the developing world. This inequity needs to be at the core of any climate chan ge research both at a practical and theoretical level. However, some scholars have argued that dominant modes of thinking about climate change and environmental hazards have often chosen to ignore this inequity or have not placed such inequity at the cor e of their analysis. This is where the Environmental Justice movement acts as a game changer. We argue that it provides an alternative rationality to approach environmental hazards, with the social injustices and inequities at its cente r that are direct or indirect effects of environmental degradation and climate change.

Armour et al on Menstrual Justice in Australia

Mike Armour (Western Sydney University), Dani Barrington (The University of Western Australia), Helen Connolly (Australian Government - South Australia’s Commission for Children and Young People (Children and Young People Affairs)), Beth Goldblatt (University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law; University of Technology Sydney, Faculty of Law), Elizabeth Hill (The University of Sydney), Danielle Howe (Western Sydney University), Margaret E. Johnson (University of Baltimore - School of Law), Minnie King (University of Queensland), Nina Lansbury (University of Queensland), Meredith Nash (The Australian National University), Linda Steele (University of Technology Sydney, Faculty of Law), & Jane M. Ussher (Western Sydney University - Translational Health Research Institute) have posted Menstrual Justice: A Human Rights Vision for Australia on SSRN.  Here is the abstract:

In the past year alone, news reports have shown how menstrual injustice is linked to gender inequality, a lack of economic opportunity, poor health outcomes, and human rights violations. Here is a small sampling of the unjust treatment of women and other people who menstruate: locked bathrooms at schools, inadequate supply of free period products, harmful menstruation-avoidance options for athletes, the human and economic costs of the lack of menstruation and menopause employment leave policies, and the mistreatment of people imprisoned who menstruate.

To improve women’s equality, we need menstrual justice. Menstrual justice is the achievement of dignity, liberty and equality for people who menstruate, primarily cis women and girls but also transgender men and boys, genderqueer/nonbinary and intersex persons. On the other hand, menstrual injustice is the oppression of people who menstruate simply because they menstruate, and our society does not yet accept and accommodate menstruation as normal. Menstrual injustices can compound the marginalization of persons already subject to other injustices, including young students, low-income persons, persons with disability, Indigenous persons, persons who are imprisoned, and remote and low-wage workers.

We need laws that clearly outlaw workplace discrimination and harassment against menstruators, so no one is fired for bleeding on the job or being late to work due to period pain. We need public awareness campaigns and curricular expansion focused on health information and the eradication of menstrual stigma to curb poor menstrual health. We need access to resources and healthcare for residents in institutional settings that supports their autonomy over menstruation and menopause. We need provision of Indigenous intergenerational teaching about menstruation and menopause.

Governments have addressed some of these menstrual injustices. For example, all States and Territories provide free product access in schools. Victoria will be providing free product access in public places. Such initiatives are critical and helpful. But they are isolated and do not tackle important pieces of the equality puzzle.

The authors are a group of researchers, activists, and policy makers who have created this set of evidence-based recommendations for governments relating to menstruation and menopause. Our concrete recommendations, entitled “Menstrual Justice: A Human Rights Vision for Australia,” call upon Government to do more to fully address menstrual injustices. Our recommendations include the areas of public awareness, curriculum, schools, workplaces, public buildings and housing, institutional settings and discrimination and coercion. Many of these recommendations are no cost or low cost but could have a large impact on gender equality and would improve human rights for women and other people who menstruate.

Pettit-Toledo on Sexual Violence and Intersectional Identities

Miyoko Pettit-Toledo (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Collective Memory and Intersectional Identities: Healing Unique Sexual Violence Harms Against Women of Color Past, Present and Future (University of Hawaii Law Review, Vol. 45, No. 2, 2023) on SSRN.  Here is the abstract:

For at least the last decade, at the urging of gender scholars and advocates, reconciliation initiatives started to recognize specialized harms of sexual violence against women and began to tailor redress to address these harms. Yet, although a step in the right direction, even those forward-looking redress initiatives did not specifically and forthrightly recognize unique sexual violence harms to women of color. This Article builds on this developing intersectional race-gender redress analysis with its focus on sexual violence by illuminating an important next step: recognition, through storytelling and collective memory, of sexual violence injustices against women of color. The collective memory of injustice is an important prelude to reconciliation initiatives. In the context of sexual violence against women of color, the shaping of an individual’s and group’s narrative and public image of the harms are vital to moving forward, especially as related to truth commission investigations and hearings. Where women of color who suffered sexual violence (and other forms of gender-based harms) are often silenced or largely rendered invisible in the redress process, voicing both individual and collective experiences of such harms may be an important step forward in healing such unique harms.

Yet in many transitional justice initiatives, those willing to come forward are frequently narrowly cast or categorized as “victims,” often in the context as witnesses in criminal prosecutions or for the purpose of determining legal eligibility for monetary reparations. However, recent studies reveal that women of color who have suffered sexual violence harms experience multiple, intersectional identities—as victims, survivors, political activists, fighters and much more. And many of them have expressed that they wish to be remembered that way—as more than just “victims”—in reparative justice initiatives and beyond. Through a mini case study of the experiences of Toufah Jallow, the Gambian woman who is credited with inspiring the #MeToo movement in Africa, this Article begins to illuminate what more is needed for comprehensive and enduring social healing through justice for both individual women of color and the polity itself. The time is now to listen to these women of color with empathy and understanding. The time is now to strive for more genuine and comprehensive social healing through justice.

Nadler on Taxing Zero Price Transactions

Hillel Nadler (Wayne State University Law School) has posted Taxing Zero (Florida Tax Review, Vol. 26 (Forthcoming)) on SSRN. Here is the abstract:

“Zero-price” transactions—in which goods or services are provided at a cash price of zero—are an increasingly important feature of economic life. Consumers can search the web, use email, listen to music, and even trade stocks, all without paying anything out of pocket. But zero-price transactions are not free: for-profit businesses provide products at zero-price because they get something valuable from consumers in return. Consumers pay with their time, attention, or private information. Zero-price transactions are not giveaways; they are a form of barter exchange.

Under federal income tax principals, barter exchanges are taxable: both parties to the transaction are taxed on the value they receive. This Article considers the treatment of zero-price transactions from an income tax perspective. Should zero-price transactions be taxed like barter exchanges? If so, how should the amount received in a zero-price transaction be valued? And how can the federal government practically collect tax owed on zero-price transactions?

Coglianese on Non-Binding Standards and the Law

Cary Coglianese (University of Pennsylvania Carey Law School) has posted Standards and the Law (Standardization: Journal of Research and Innovation, Vol. 2, no. 2, p. 15, 2023)) on SSRN.  Here is the abstract:

The world of standards and the world of laws are often seen as separate, but they are more closely intertwined than many professionals working with laws or standards realize. Although standards are typically considered to be voluntary and non-binding, they can intersect with and affect the law in numerous ways. They can serve as benchmarks for determining liability in tort or contract. They can facilitate domestic and international transactions. They can prompt negotiations over the licensing of patents. They can govern the development of forensic evidence admissible in criminal courts. And standards can even become binding law themselves when they are incorporated by reference. This article explains how standards intersect with and affect six major domains of law: product liability, patent law, contracts, administrative law, international trade, and criminal law. It also shows why it is important for lawyers, engineers, and other professionals working in the worlds of standards or law to understand each other and communicate effectively across both worlds. In today’s economy, both standards and laws perform critical governance roles.

Ryan on Children's Rights

Clare Ryan (University of Alabama School of Law) has posted Are Children's Rights Enough? (American University Law Review, Forthcoming) on SSRN.  Here is the abstract:

Are parental rights or children’s rights better for protecting children and vindicating their interests? In this on-going debate, American family law scholars and advocates are deeply divided. Scholars and advocates often criticize the United States for its failure to ratify to Convention on the Rights of Child and for denying children constitutional family rights. This critique of U.S. family law assumes that incorporating children’s rights would result in better outcomes for children. This Article challenges the assumption that children’s rights are enough to vindicate children’s interests. Instead, I identify how the current conceptions of children’s rights present structural barriers to full vindication of the child’s interests.

To illustrate how these structural barriers operate, this Article analyzes case law on custody and family separation from a jurisdiction that uses a strong children’s rights approach, the European Court of Human Rights. These cases provide a valuable comparator by which to test whether children’s rights framing changes the way that courts reason about children.

This Article contends that three major obstacles have thwarted the efficacy of a children’s rights framework. First, when children’s interest conflict with their parents, someone must decide whose interest will prevail. This empowers states to intervene into families’ lives in ways that can undermine children’s wellbeing. Second, a children’s rights model must give children a voice in legal proceedings. However, rights litigation is traditionally the purview of adults, and children often lack standing to assert their own rights claims. Even when they do, young children lack the capacity to assert their interests in a way that is cognizable by a court. Finally, a children’s rights model must address the ways in which the state uses children as leverage to deter or compel their parents. To be effective rights-holders, children must be agents and not merely objects in the eyes of the law.

Partaker on International Wildlife Crimes

Emmanuel Amanyi Ababe Partaker (Uganda Christian University) has posted A Critical Analysis of the International Legal Framework for Control of International Wildlife Crimes on SSRN.  Here is the abstract:

Wildlife crime may include illegal trade, smuggling, poaching, capture or collection of endangered species or products thereof. Plants and animals all in equal measure, play a significant role in maintaining the globe bio-diversity and therefore wild life crimes play a negative part in this area.

This paper discussed the various international conventions & organizations bent on control of international wildlife crime. It also discussed the control measures under taken to curb international wild crimes, the challenges thereto plus recommendations.

Ries on Drag Bans and the First Amendment

Brett V. Ries (Duke University School of Law, Students) has posted Don't Be A Drag: How Drag Bans Can Violate the First Amendment on SSRN.  Here is the abstract:

Drag is currently under attack in the United States, and anti-drag violence is increasing. As part of the attack on drag, state governments across the country are attempting to ban or restrict drag performances. At the root of these restrictions and oppositions to drag is ultimately lawmakers’ disapproval with the inherent message drag sends: that gender nonconformity is okay. This Note makes the argument as to why drag is expressive conduct that inherently contains a viewpoint on gender norms. Then, by pulling themes from recent anti-drag legislation, this Note lays out the relevant First Amendment tests and then applies them to drag restrictions to analyze whether these restrictions pass constitutional muster. It argues that while some types of drag performances may be constitutionally restricted, such restrictions would ultimately only cover a small amount of what drag can be.

Drag can and has moved audiences and liberated individuals. It spreads a message of love and acceptance across the country and the world. People do not have to agree with that message or expression, including government officials. But, if the Supreme Court has made anything clear in its First Amendment cases, it is that the government cannot prohibit expression just because it disagrees with the message. Drag artists should continue to share their art and spread their messages, reaffirming our country’s commitment to freedom of expression.

Sokol & Wickelgren on the Federal Trade Commission and Antitrust Enforcement

D. Daniel Sokol (USC Gould School of Law; USC Marshall School of Business) & Abraham L. Wickelgren (University of Texas at Austin - School of Law; University of Texas at Austin - Center for Law, Business, and Economics) have posted Agency Objectives, Organizational Change, and Optimizing Enforcement (Journal of Antitrust Enforcement (Forthcoming)) on SSRN.  Here is the abstract:

Effective antitrust relies on its institutions. We offer a brief retrospective of sudden and significant change at one of the antitrust institutions in the United States – the Federal Trade Commission (FTC) under the Biden administration. Changes under Chair Lina Khan have been more dramatic than at any time since the 1981 tenure of Chair James Miller. Much like Miller, changes in the agency have been fast and far reaching. Perhaps different than the Miller revolution has been a difference between rhetoric and reality on substance, as well as more significant disregard for transparency and managerial issues that reduce informed decision-making. Some of the managerial problems have improved over time, but a number of these issues remain significant. Overall, our view is that effective enforcement requires solving a series of principle agent problems internally as well as reducing regulatory uncertainty when such uncertainty could chill pro-competitive behavior and innovation.

Shoemaker on Indigenous Land Reform

Jessica A. Shoemaker (University of Nebraska - College of Law) has posted Land Reform in the Fifth World (52 Southwestern Law Review 239 (Forthcoming)) on SSRN.  Here is the abstract:

In this time of rapid climate change and gaping inequality, we face urgent questions about the ability of current property systems to sustain us into the future. But how does property-system change happen? Land reform is difficult to imagine, much less implement, within a physical landscape already so lavishly built and also embedded with deep layers of tradition, experience, and law. In this short Essay, I argue that there are important lessons from Ezra Rosser’s recent book, A Nation Within: Navajo Land and Economic Development, for the wider project of Indigenous and, ultimately, American land reform. Property scholars ignore these issues of Indigenous property and land governance to our collective detriment.

This Essay makes three particular contributions. First, I outline with some specificity why centering contemporary Indigenous land tenures within any wider study of America’s already pluralistic property system is so important. Second, building on Rosser’s detailed case study of Navajo land and economic development, I draw some wider lessons about the process of how land reform happens. Although law change is needed to implement many desired innovations, the Navajo experience underlines the critical role of local action, imagination, and persistence. Finally, the Essay takes a brief journey to review the experience of some First Nations in Canada—where Indigenous-led land reforms are also being pursued in a similar but different context—to expand on ideas about the architecture of successful land reform projects. When we widen our scholarly attention—humbly, and with respect—we find an abundance of critical, active land-reform projects that are ongoing and worthy of greater care and concern as we reimagine our future together in this world, and maybe the next.

Sangiuliano on Harmless Discrimination

Anthony Sangiuliano (Cornell University - Sage School of Philosophy) has posted Harmless Discrimination, Wrongs, and Rules (Law & Philosophy, forthcoming) on SSRN.  Here is the abstract:

Discrimination is often tremendously harmful. But cases of harmless, yet morally wrongful discrimination suggest that there are factors that make discrimination wrong other than its harmfulness. This article analyzes three views that resist this conclusion and poses some challenges for each. The first view appeals to unnoticed forms of harm in cases of harmless discrimination. But it counterintuitively entails that discriminatory acts are morally wrong by definition. The second view holds that harmless discrimination is made wrong by how its perpetrator wrongs the victim by disrespecting her moral status without setting back her wellbeing. But it is unclear how impermissibly wronging a person is different from unjustifiably harming her. The third view holds that, even if discriminatory acts can be made wrong by factors other than harm, they ought to be prohibited by a legal rule whose sole justification is that it prevents harm. But there may be reasons for legally prohibiting discriminatory acts other than harm prevention.

Recommended.

McNeill & Tucker on Constitutional Positivism

David N. McNeill & Emily Tucker (Center on Privacy & Technology at Georgetown Law) have posted The Shape of Citizenship: Extraordinary Common Meaning and Constitutional Legitimacy on SSRN.  Here is the abstract:

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the legitimacy of the Federal Judiciary—and the role that current orthodoxies in constitutional interpretation have played in fomenting that crisis.

The immediate critical target of this article is contemporary jurisprudential uses of what is called “public meaning originalism,” specifically, and ‘textualist originalism’ more broadly, as a theory for the interpretation of those clauses in the US Constitution that refer to fundamental rights and freedoms. This concern with “textualism,” however, is primarily diagnostic. For, despite its relative unpopularity among most contemporary legal theorists, the application of “public meaning originalism” by the US Supreme Court is perfectly consistent with the dominant legal theoretical approach in the English-speaking world. The extremity of the Court’s recent ‘textualist’ jurisprudence provides an excellent illustration, or reminder, of the dangers of legal positivist jurisprudence. In arguing against textualist originalism, this article defends a version of the anti-positivist distinction between legal rules and legal principles, most famously associated with the work of Ronald Dworkin. It argues, however, that this distinction cannot be captured by understanding constitutional principles in terms of moral principles, as Dworkin suggests. Instead, constitutional principles must be understood as deliberative principles of political association and communal self-determination. The primary subject of this article, then, is the character of fundamental constitutional law; our hope is that the current crises in democratic constitutional legitimacy can help make salient certain aspects of the relation between popular sovereignty and constitutional legitimacy that are harder to discern in less fractured political climates.

This article begins, in Part One, with a consideration of the Roberts Court’s recent jurisprudence, focusing on three landmark opinions issued in June of 2022: Dobbs v Jackson Women’s Health Organization, Kennedy v. Bremerton School Dist. and West Virginia v EPA. The point of revisiting this recent history will not be—or will not only be—to decry these rulings as anti-democratic and constitutionally ill-founded. The point, rather, will be 1) to see these rulings as consolidations of the Court’s newly asserted constitutional authority, and 2) show how contemporary positivist constitutional theory has helped prepare the way for the Court’s manipulation of the constitutional order.

Part Two begins to elaborate an anti-positivist alternative both to legal positivism and to natural law legal theory. In agreement with traditional natural law theorists, it is argued that the distinction between illegitimate and legitimate expressions of political authority depends on the degree to which a system of authority is directed toward a common good. In disagreement with those theorists, however, this article contends that the common good of a political community is determined by the communal deliberative activity of a political community, and that the deliberative determination of a common good is the normative foundation of that community.

Part Three focuses on the First Amendment of the US Constitution with two aims in mind. First, to illustrate the account of constitutional law here advocated, it offers a reading of the First Amendment as an attempt to put into words a shared understanding among the ratifiers of the Bill of Rights of what this article calls ‘the shape of citizenship’ in our constitutional democracy. Second, it shows how the Court’s recent opinions have radically subverted the last vestiges of this original connection between constitutional rights and the foundational principles of constitutional self-government. In Dobbs v Jackson, in particular, the Court asserts an understanding of constitutional rights as merely a particular structural variant of positive law, and in so doing effectively makes the legal order a sovereign power over the people, rather than an expression of and vehicle for their common self-determination.

Sevel on the Rule of Law at Sea

Michael Sevel (The University of Sydney - Faculty of Law) has posted Maritime Rule of Law: Some Preliminaries (Hague Journal on the Rule of Law, 2023) on SSRN.  Here is the abstract:

Can there be rule of law at sea? In extending the traditionally terrene ideal seaward, there are a range of conceptual difficulties. These difficulties are outlined, and a recurring thought pattern is set out that is found in the traditions of thought about the rule of law as protecting members of a community from the abuse of power. Drawing on Jeremy Bentham’s scattered remarks about maritime governance, three assumptions underlying this thought pattern, regarding territoriality, community, and protective function, are identified as requiring modification in the maritime context. Achievement of the rule of law at sea is possible, but reflects a number of limitations as compared to its terrene counterpart, limitations related to these three traditional assumptions.

Legal Theory Lexicon: Speech Acts

Introduction

Speech act theory will forever be associated with the great J. L. Austin, the Oxford philosopher whose work in the 1950s had an enormous influence on analytic and Anglophone philosophy. One of Austin's core insights is reflected in the title of his William James lectures, delivered at Harvard in 1955, How to Do Things with Words.  When we use language, we don't just communicate information or say things about how the world is; when we use language, we do things. We command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which language (both oral and written) can be used to perform actions.

Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory.
 

Sentences, Propositions, Meaning, and Truth

There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of Legal Theory Blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is false, because the sidebar to Legal Theory Blog actually does no longer has links to other blogs and hence no link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value.

O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values.

Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions.

Form and Function

We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance. 

Utterance, Locution, Illocution, Perlocution

With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions:

• Utterance--We can use the term "utterance" to refer to the words (e.g. the sounds or letters) that constitute a particular use of language.
• Locution--We can use the term "locution" to refer to the semantic meaning of the utterance.
• Illocution--We can use the term "illocution" to refer to the speech act that is performed by use of a particular utterance in a particular context.
• Perlocution--We can use the term "perlocution" to refer to the effect that a given expression has when it is uttered in a particular context.

Take the example of the sentence, "This room is a pig sty." The utterance is simply the words that are used: suppose this is an oral statement in English made by a parent to a child on a particular occasion. The same parent could utter similar worlds in English (or another language) that have the same semantic content. "The family room is a pig sty"--would express the same propositional content as "This room is a pig sty" if "this room" was "the family room." The illocutionary force of this statement is ambiguous. If the child spoken to was responsible for the mess, then both parent and child might understand that "This room is a pig sty" is the equivalent of "Clean up this room." The same illocutionary force can be obtained by a variety of expressions. Finally, the perlocutionary effect of "This room is a pig sty" will also depend on context. The effect might be to produce shame, but it might also produce anger. Thus, one utterance has both locutionary content, illocutionary force, and perlocutionary effect.

A Typology of Speech Acts

One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish:

• Constatives: affirming, alleging, announcing, answering, attributing, claiming, classifying, concurring, confirming, conjecturing, denying, disagreeing, disclosing, disputing, identifying, informing, insisting, predicting, ranking, reporting, stating, stipulatin
• Directives: advising, admonishing, asking, begging, dismissing, excusing, forbidding, instructing, ordering, permitting, requesting, requiring, suggesting, urging, warning
• Commissives: agreeing, guaranteeing, inviting, offering, promising, swearing, volunteering
• Acknowledgments: apologizing, condoling, congratulating, greeting, thanking, accepting (acknowledging an acknowledgment)

There are other ways of slicing and dicing the types of speech acts, but Bach and Hamish's typology gives a good sense of how such a typology might work.

Speech Act Theory and Legal Theory

How can legal theorists use speech act theory?  We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle.

Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment.

Why not?  One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action.

Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed.

If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below.

Related Lexicon Entries

• Legal Theory Lexicon 063: Interpretation and Construction
  

 Bibliography

• Austin, J. L. (1962) How to Do Things with Words: Second Edition (William James Lectures) , Cambridge, Mass.: Harvard University Press.
• Bach, K. and R. M. Harnish (1979), Linguistic Communication and Speech Acts , Cambridge, Mass.: MIT Press.
• Grice, H. P. (1989) Studies in the Way of Words, Cambridge, Mass.: Harvard University Press.
• Searle, J. (1969) Speech Acts: An Essay in the Philosophy of Language, Cambridge, Eng.: Cambridge University Press.
• Lawrence B. Solum, Freedom of Communicative Action: A Theory of the First Amendment Freedom of Speech, 83 Northwestern University Law Review 54 (1988 1989).
• Strawson, P. F. (1964) 'Intention and convention in speech acts', Philosophical Review 73: 439-60.

Resources on the Internet

• Mitchell Green, "Speech Acts" in the Stanford Encyclopedia of Philosophy.
• Kent Bach, "Speech Acts" entry in the Routledge Encyclopedia of Philosophy.
• What Is a Speech Act?
• Kepa Korta, "Pragmatics" entry in the Stanford Encyclopedia of Philosophy
• Barry Smith, Towards a History of Speech Act Theory
• Guy Longworth, "John Langshaw Austin" entry in the Stanford Encyclopedia of Phiosophy

(Last modified on May 19, 2023.)

Legal Theory Bookworm: "Feminist Theory and International Law" by Jones

The Legal Theory Bookworm recommends Feminist Theory and International Law by Emily Jones.  Here is a description:

Feminist approaches to international law have been mischaracterised by the mainstream of the discipline as being a niche field that pertains only to women’s lived experiences and their participation in decision-making processes. Exemplifying how feminist approaches can be used to analyse all areas of international law, this book applies posthuman feminist theory to examine the regulation of new and emerging military technologies, international environmental law and the conceptualisation of the sovereign state and other modes of legal personality in international law.

Noting that most posthuman scholarship to date is primarily theoretical, this book also contributes to the field of posthumanism through its application of posthuman feminism to international law, working to bridge the theory and practice divide by using posthuman feminism to design and call for legal change. This interdisciplinary book draws on an array of fields, including philosophy, queer and feminist theories, postcolonial and critical race theories, computer science, critical disability studies, science and technology studies, marine biology, cultural and media studies, Indigenous onto-epistemologies, critical legal theory, political science and beyond to provide a holistic analysis of international law and its inclusions and exclusions.

This interdisciplinary book will appeal to students and scholars with interests in legal, feminist and posthuman theory, as well as those concerned with the contemporary challenges faced by international law.

Download of the Week: "Textualism’s Fault Lines" by Krishnakumar

The Download of the Week is Textualism’s Fault Lines by Anita S. Krishnakumar.  Here is the abstract:

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the modern Supreme Court, it is time for scholars and jurists to grapple with these theoretical tensions and points of divergence between textualist interpretive theory and practice.

This article provides the first empirical and doctrinal analysis of three central fault lines, or places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive theory. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, this article highlights three surprising textualist fault lines: (1) first, while textualism-in-theory seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualist interpretive practice is decidedly pluralist, as a clear majority of the Court—including all of the Justices widely considered to be textualists—regularly references several interpretive tools that textualism-in-theory rejects; (2) second, while textualism-in-theory insists that statutory terms be given their date-of-enactment or “original public” meaning, textualism-in-practice regularly uses present-day sources to determine statutory meaning; and (3) third, while textualism-in-theory emphasizes the meaning that statutory terms have in everyday conversational speech, textualism-in-practice relies heavily on sophisticated legal doctrines and constructs. These findings hold true even if we focus exclusively on data from the Court’s most recent 2017-2020 terms, during which the Court’s composition has skewed lopsidedly textualist.

After chronicling these divergences between textualist theory and practice, the article considers and rejects the possibility that they may be attributed merely to faint-hearted judicial application of textualism and that they should be resolved through more disciplined adherence to textualist principles. Instead, the article suggests that textualist interpretive theory may actually be inherently contradictory in ways that give rise to these interpretive divergences; for example, textualism’s commitment to stability may be in tension with its commitment to predictability and fair notice. In the end, the article offers some suggestions for how textualist theory might evolve to both reconcile these internal contradictions and to better account for how textualism actually is practiced on the ground.

Highly recommended.