Legal Theory Blog

Schlanger & Ginsberg on the Prison Litigation Reform Act Exhaustion Requirement & COVID-19

Margo Schlanger (University of Michigan Law School) & Betsy Ginsberg (Yeshiva University - Benjamin N. Cardozo School of Law) Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion Requirement (Case Western Reserve Law Review, Vol. 72, No. 3, 2022) on SSRN.  Here is the abstract:

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win—regardless of merit. We have seen the result in the wave of litigation relating to the COVID-19 pandemic. Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Time and again, courts have thrown cases out based on the PLRA —especially, on the PLRA’s instruction to dismiss civil rights cases unless “such administrative remedies as are available are exhausted” (that is, unless the incarcerated plaintiff worked the complaint all the way through the prison’s or jail’s grievance system).

The pandemic has exposed a particularly egregious problem: the mismatch between a mandate to use internal grievance systems and those grievance systems’ systemic inability to address emergency situations. Here, we propose three solutions. First, incarcerated plaintiffs should be allowed to proceed with their federal lawsuits if the press of an emergency renders a prison’s or jail’s grievance system “unavailable” because it is unable to process their complaint quickly enough to offer any relief. As we describe below, this is already the right answer under existing case law—but so far, many district courts have declined to follow this path. The second proposal focuses on possible actions at the state and local levels, because it is corrections agencies, not the PLRA, that determine what procedures must be exhausted or whether the defense is raised in litigation. Any prison or jail unhappy with allowing incarcerated plaintiffs to proceed in federal court or amenable to allowing them to access court quickly in emergency circumstances could implement working emergency grievance systems. We provide some parameters to guide any such system. In addition, state legislatures could enact legislation forfeiting or waiving the exhaustion defense in cases seeking emergency relief. The third solution addresses the reluctance of district judges to excuse non-exhaustion when they should; we propose that the PLRA be amended to pretermit the “availability” inquiry by eliminating the statutory exhaustion requirement in emergency situations. We offer suggested legislative text to accomplish this end.

Rachum-Twaig on Copyrighting Food

Omri Rachum-Twaig (Tel Aviv University - Buchmann Faculty of Law ; Federman Cyber Security Research Center, Hebrew University of Jerusalem) has posted The Case Against Copyright Protection of Food (Forthcoming, IDEA: The IP Law Review, No. 63, 2023) on SSRN.  Here is the abstract:

This Article will discuss the interface between intellectual property law and food. While this interface could yield many discussions, I focus on the relationship between haute cuisine as a social and cultural phenomenon and copyright law. The goal of this Article is to explain the mismatch between intellectual property law generally, and copyright law specifically, and the protection of culinary products, and through such mismatch discuss general difficulties underlying copyright law. For this, I will suggest the thought exercise of protecting the visual outcome of gourmet dishes by copyright. It will allow me to make the case against copyright protection of food both normatively and descriptively. First, I will argue that haute cuisine is an efficient and flourishing market even absent copyright protection, thus making such protection redundant and unjustified. I will add that keeping copyright protection off food even makes this market more efficient due to its own piracy paradox. Second, and more importantly, I will argue that copyright protection of culinary products is unjustified due to broader cultural and distributive effects such protection may have. I will argue that the case of haute cuisine shows that despite copyrights aspiration to aesthetic neutrality, it appears that in many cases works of "high" culture are granted more protection than those of "low" culture. Such distinction, that has no place in copyright law, may lead to unjustified gaps between different groups of authors and consumers which does not fit copyright main goal – promoting authorship and access to expressions.

Holland & Biggs on Familial Status Discrimination

Patrick Holland (Yale Law School) & Rubin Danberg Biggs (Yale Law School) have posted Familial Status Discrimination: A New Frontier in Municipal Fair Housing Act Litigation (Yale Law Journal, Forthcoming) on SSRN.  Here is the abstract:

A key provision in the Fair Housing Act (FHA) – the Housing for Older Persons Act (HOPA) exemption – has allowed municipalities to weaponize senior housing to discriminate against families, obstruct affordable housing, and perpetuate race and class segregation. This Note documents the nature, stakes, and origins of this pattern and advances three main prescriptive claims. First, advocates can work within the existing HOPA framework to hold municipalities accountable for exclusionary decisions. Second, courts should reinterpret the HOPA exemption to better reflect the goals of the FHA. And third, the federal government and state governments should make changes to their FHAs to respond to its widespread abuse.

Casey on Finnis on the Point of Constitutional Law

Conor Casey (University of Liverpool School of Law & Social Justice) has posted Constitutional Design and the Point of Constitutional Law ((Forthcoming 2022) American Journal of Jurisprudence) on SSRN.  Here is the abstract:

This essay offers an account of the diverse range of rich insights Professor Finnis’ work offers for several perennial questions of constitutional theory: such as what valuable moral ends constitutional law serves, how best to approach the design of constitutional arrangements and institutions, and how to best approach constitutional interpretation.

I proceed in four parts. The first two parts begin by looking at Finnis’ treatment of the purpose of law as a social practice and then, more specifically, the point or purpose of channelling political power through constitutional law. Having outlined the point or purpose of constitutional law and constitutional institutions, I then probe what Finnis has to say about questions of constitutional design. Finally, I give an account of how Finnis’ work approaches constitutional interpretation.

Several trends emerge from my study of Finnis’ constitutional thought. When it comes to questions of institutional design, Finnis clearly considers certain forms of constitutional ordering – centred around a mixed or balanced constitution – to be particularly prudent and conducive to securing the common good of a polity. Finnis also appears particularly wary of what he regards as an imprudent trend in contemporary constitutional systems of permitting apex judicial bodies to approach their adjudicative functions in a way that transforms them into de facto lawmakers, empowered to make rules governing future treatment of some of a community’s most sensitive moral-political questions.

When it comes to how officials should act in the course of constitutional adjudication and interpretation, Finnis is committed to at least two propositions that cabin the reasonableness and prudence of their actions. One is that a capacious ‘living instrument’ approach to interpretation - that allows judges to functionally displace the principles posited in constitutional text - risks undermining law’s critical co-ordinating and settlement function and shows disrespect for the choices made by legitimate authority expressed through the propositions they decided to enact into law. For Finnis, officials also cannot reasonably aim to be exclusively concerned with socio-historical facts when engaged in interpretation. For Finnis, such an approach is unreasonable because it involves the deliberate neglect of true moral principles that are always reasonable to consider part of our law and a necessary feature of resolving hard cases in a morally sound way.

Professor Finns’ work on the natural law tradition is widely, and properly, regarded as one of the most important contributions to legal theory made in the last century. In a time when we are seeing a healthy resurgence of interest in classical legal approaches to public law, I hope this essay demonstrates that there is also much to be gained by engaging with his sophisticated treatment of some perennial issues of constitutional theory.

Highly recommended.

Khaitan on Aversive Constitutionalism

Tarunabh Khaitan (University of Oxford - Faculty of Law; University of Melbourne - Law School; NYU Law School) has posted Aversive Constitutionalism on SSRN.  Here is the abstract:

In this paper, I clarify the phenomenon that Kim Lane Scheppele characterised as 'aversive constitutionalism'. Primarily using (and reconceptualising) the material from Justin Collings’s recent book—'Scales of Memory: Constitutional Justice and Historical Evil', I argue that aversion is substantively an attitude, and stylistically a framing device in judgments.

As an attitude, it informs the affective, cognitive, and behavioural dimensions of an aversive judgment. Each of these dimensions are uncovered through key proxies discerned from the (admittedly limited) evidence provided in the texts of judgments.

As a literary framing device, the aversive narrative bookends the substantive engagement with the issue at hand. This style shifts the burden of justification, at least in part, from the judge herself to the personified polity, speaking through the framing device, to remind us of the aversive other (often the polity's own past self) that must be avoided.

Both as an attitude, and as a framing device, aversive constitutionalism seeks to serve two key functions: a legitimation function (in relation to the judgment and of the court) and an identitarian function (by defining the political self in opposition to the other).

Interested and recommended.  Here is a link to a paper by Scheppele: Aspirational and Aversive Constitutionalism.

Sanders on Parental Leave for Law Clerks for Federal Judges

Bailey Sanders has posted On the Basis of Childbirth: How the Federal Clerkship's Lack of Parental Leave Fosters Gender Inequality (UCLA Women's Law Journal, Forthcoming) on SSRN.  Here is the abstract:

This essay argues that the lack of paid parental leave for federal law clerks enables pregnancy discrimination, restricts women’s reproductive choice, and perpetuates gender inequality within the legal profession writ large. Protections against pregnancy discrimination are hollow when clerks can be fired¬—or have clerkship offers rescinded—for requiring maternity leave, and the lack of leave disproportionately impacts female clerks by constraining their ability to pursue career and family simultaneously. The lack of leave also restricts (some) pregnant women’s reproductive choice by forcing them to choose between keeping their position or carrying their pregnancy to term. Such a state of affairs was intolerable in the past but has now become unconscionable in the devastating wake of Dobbs v. Jackson Women’s Health Organization. Many clerks will be serving in vast abortion deserts, cut off from medical care and facing threats of criminal prosecution should they attempt to end their pregnancies to save their job. For all these reasons, current congressional efforts to provide greater protections to term law clerks from discrimination and workplace misconduct, while an important step forward, must be supplemented to include guaranteed parental leave for term law clerks.

Rubin & Feeley on Criminal Justice Administration

Edward L. Rubin (Vanderbilt University - Law School; Vanderbilt University - Department of Political Science) & Malcolm M. Feeley (University of California, Berkeley, School of Law) have posted Criminal Justice Through Management: From Police, Prosecutors, Courts, and Prisons to a Modern Administrative Agency (100 Oregon Law Review 261 (2022)) on SSRN.  Here is the abstract:

Our so-called criminal justice system is in fact a disorganized mélange of poorly supervised police departments, over-aggressive prosecutors, under-funded public defenders, chaotic criminal courts and overcrowded, under-controlled prisons and jails. Many valid criticisms have been levelled against its particular components and the racist, classist and vindictive attitudes that motivate it. This article identifies a more basic cause of the system’s failure and recommends a more comprehensive solution. The various institutions that we use to deal with the problem of criminal activity are atavisms, holdovers from the pre-modern era when crime control was the defining feature of government (together with foreign affairs) rather than one element of a wide-ranging system of public administration. As a result, these institutions are frozen into outdated, balkanized and reactive formats that fail to achieve the system’s basic goal of crime prevention.

For considerably more than a century, our society has addressed other social issues such as education, public health, employment conditions, consumer safety and environmental degradation by creating administrative agencies with comprehensive responsibility and at least an expectation that they will develop a coherent strategy. The same should be the case in criminal justice. An integrated, hierarchically organized agency in each state would be able to plan general approaches, manage resources and coordinate functions, all essential tasks that are currently ignored or underdeveloped. In addition, it would have the capacity to train staff, supervise their performance, punish misconduct, and develop new patterns of behavior that would detach criminal justice institutions from their pre-modern, militaristic origins. An orderly administrative system of this sort is almost certainly the only way to alter the deeply ingrained patterns of behavior that continue to produce so much abuse and oppression in all our criminal justice institutions. While constitutional law protections should not be diminished, the criminal trial, now utilized by only a few percent of all defendants, should not serve as the organizing principle of the system, but rather as a means for dealing with the most recalcitrant individuals, as it does in other areas of administration such as securities law and environmental protection.

Recommended.

DeGirolami on Constitutional Traditionalism

Marc O. DeGirolami (St. John's University - School of Law) has posted Traditionalism Rising (Journal of Contemporary Legal issues, Forthcoming) on SSRN.  Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

Highly recommended.  An important and timely statement.  Download it while it's hot!

Nessel on Statutes of Limitations & Immigration Law

Lori A. Nessel (Seton Hall Law School) has posted When Time Stands Still: Eliminating Immigration 'Death Sentences' (SMU Law Review, Vol. 75, No. 369, 2022) on SSRN.  Here is the abstract:

The nation prides itself on the notion of rebirth—the ideal that one could leave their past behind and come to the U.S. and seize the opportunities available to advance and re-make oneself. Yet, when it comes to immigration law, neither the passage of time nor a life full of positive equities ameliorates past wrongdoing or allows for future opportunities. In the words of the Senate Subcommittee when Congress permanently removed the statute of limitations for deportation from the Immigration and Nationality Act in 1952, “[i]f the cause for exclusion existed at the time of entry, it is believed that such aliens are just as undesirable at any subsequent time…” Time stands still in significant and detrimental ways throughout our immigration law. An immigrant’s manner of entry into the U.S. can result in a lifetime bar to due process in removal proceedings, and a finding that an immigrant ever filed a “frivolous” asylum application will bar her from any immigration benefit throughout her life, even if she withdrew the application and procured no benefit through it. Detained noncitizens facing removal are routinely denied bond because of criminal charges that have been filed against them, even absent any finding of guilt. This occurs even if the accuser withdraws their complaint; the very fact that criminal charges were brought signifies danger and results in ongoing detention.

In this article, I examine a few of these provisions that result in life-time consequences, as well as the lack of a statute of limitations or laches defense in immigration law. After exploring jurisprudence and legislative history in each of these areas, I analyze the theory behind statutes of limitation and laches defenses in other areas of law to argue for a statute of limitations for deportation proceedings, and for a time-limit on penalties that attach to a single bad act, like filing a frivolous asylum application. I also argue that noncitizens should be entitled to the same presumption of innocence as in the criminal justice system with regards to bond determinations. This article incorporates a broader moral and policy-based argument that after a certain period of time, a noncitizen’s membership in the nation is so well-established and meaningful that deportation, or the denial of immigration benefits based on a past bad act, should no longer be possible.

Poynton on Pharmaceutical Patents & Incentives

Aaron Poynton (London School of Economics and Political Science) has posted The Incentive Argument in Pharmaceutical Patent Law on SSRN.  Here is the abstract:

This working paper critically examines the pharmaceutical industry and the incentive argument in patent law. It begins by framing an overview of the industry and patent law, focusing on U.S. and U.K. law, and multilateral agreements, and efforts by international organizations, such as the World Trade Organization (WTO). Next, the paper considers patent incentive arguments on both sides of the issue to provide a well-researched and more balanced perspective. It then views the longstanding debate through the lenses of contemporary issues related to Covid-19 vaccines and the recent patent waivers considered by many countries. Lastly, this paper provides concluding opinions supporting the argument that intellectual property protection is core to innovation in the pharmaceutical industry, but patent waivers may be a necessary tool in certain situations. It concludes by recommending fixing the TRIPS compulsory licensing provision flaws and carefully finding a TRIPS waiver solution that could strike the desired balance between protecting intellectual property (IP) and providing for the common good.

Mann, Campbell, & Nguyen on Access to Gender-Affirming Care

Samuel Mann (Vanderbilt University), Travis Campbell (Southern Oregon University), & Duc Hien Nguyen (University of Massachusetts at Amherst - College of Social and Behavioral Sciences - Department of Economics) have posted Access to Gender-Affirming Care and Transgender Mental Health: Evidence from Medicaid Coverage on SSRN.  Here is the abstract:

Using variation in the coverage of gender-affirming care under Medicaid, we pro- vide the first evidence of increasing access to gender-affirming care on the mental health of transgender people. We use data from the 2014-2020 Behavioral Risk Factors Surveillance Systems paired with a triple-difference design that leverages state-level differences in timing and availability of Medicaid coverage for gender-affirming care and income-based Medicaid eligibility thresholds. Results demonstrate that Medicaid cover- age of gender-affirming care meaningfully improves the mental health of transgender people. We also provide suggestive evidence that this is driven by increased uptake of gender-affirming care.

helps et al on Environmental Liability & Biodiversity

Jacob Phelps et al have posted Environmental Liability Litigation Could Remedy Biodiversity Loss on SSRN.  Here is the abstract:

Many countries allow lawsuits to hold responsible parties liable for the environmental harm they cause. Such litigation remains largely untested in most biodiversity hotspots and is rarely used in response to leading drivers of biodiversity loss, including illegal wildlife trade. Yet, liability litigation is a potentially ground-breaking conservation strategy to remedy harm to biodiversity by seeking legal remedies such as species rehabilitation, public apologies, habitat conservation and education, with the goal of making the injured parties ‘whole’. However, precedent cases, expert guidance, and experience to build such conservation lawsuits is nascent in most countries. We propose a simplified framework for developing conservation lawsuits across countries and conservation contexts. We explain liability litigation in terms of three dimensions: (1) defining the harm that occurred, (2) identifying appropriate remedies to that harm, and (3) understanding what remedies the law and courts will allow. We illustrate the framework via a hypothetical lawsuit against an illegal orangutan trader in Indonesia. We highlight that conservationists’ expertise is essential to characterizing harm and identifying remedies, and could more actively contribute to strategic, science-based litigation. This would identify priority contexts, target defendants responsible for egregious harm, propose novel and meaningful remedies, and build new transdisciplinary collaborations.

van Schilfgaarde & Stoner on Tribal Civil Protection Orders

Lauren van Schilfgaarde (UCLA School of Law) & Kelly Stoner have posted Affirmed or Delegated? Finding Inherent Tribal Civil Power to Issue and Enforce Protection Orders Against All Persons in Light of Spurr v. Pope (Tribal Law Journal, Vol. 21, No. 1, 2021) on SSRN.  Here is the abstract:

Federal courts have wreaked havoc on tribal jurisdiction by injecting incertitude over their most basic authority, including the authority to issue and enforce civil protection orders. This jurisdictional incertitude causes not just legal disruption, but also further compromises the safety of Native people who are disproportionately victimized, especially by gender-based forms of violence. While Congress has been slow to remedy the onslaught of judicial limitations on tribal jurisdiction, Congress has at least remedied tribal authority to issue and enforce protection orders in 18 U.S.C. § 2265(e). However, even in this remedy, jurisdictional incertitude remains.

Through its plenary power, Congress has the authority to remedy tribal jurisdiction by either affirming inherent tribal power, or by delegating new federal powers to tribes. The precise nature of the Congressional action–affirming or delegating--determines the source of power a tribe exercises. The source of a tribe’s power affects in turn the ways in which a tribe may exercise that power—in this case, the power to issue or enforce a protection order. Native victims bear the consequences of this decision.

This Article examines how implicit divestiture led to the need for Congressional reassurance that tribes possess the authority to issue and enforce protection orders over all persons. This Article then examines the potential consequences of whether that reassurance is an affirmation of inherent tribal powers, or instead a delegation of federal powers. Finally, this Article analyzes, the plain language and legislative intent behind 18 U.S.C. § 2265(e)—as well as overarching federal and international policies—to determine whether this reassurance of tribal civil power is an affirmation or a delegation.

Mulvaney & Singer on Property Law & Human Needs

Timothy M. Mulvaney (Texas A&M University School of Law) & Joseph William Singer (Harvard Law School) have posted Essential Property (Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:

For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counter-view in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws.

The proposition that property—a social institution—generated the extant mismatch between incomes and wealth, on one hand, and critical expenses, on the other, is frightening: it reveals that we, the people, collectively and over time fashioned this staggering predicament out of whole cloth. But this same proposition is also cause for hope. If property laws helped create this predicament, perhaps property laws can help solve it. Against this backdrop, the Article charts a justice-inspired course for the reformation of property’s background rules. This course is centered on a series of norms appropriate for property governance in a free and democratic society, including circumstance sensitivity, anti-discrimination, realistic opportunity, and legal interdependence.

Highly recommended.

Goodman on AI & Due Proccess

Christine Chambers Goodman (Pepperdine University - Rick J. Caruso School of Law) has posted AI, Can You Hear Me? Promoting Procedural Due Process in Government Use of Artificial Intelligence Technologies (Richmond Journal of Law and Technology, Vol. 28, No. 4, 2022) on SSRN.  Here is the abstract:

This Article explores the constitutional implications of algorithms, machine learning, and Artificial Intelligence (AI) in legal processes and decision-making, particularly under the Due Process Clause. Regarding Judge Henry J. Friendly’s procedural due process principles of the U.S. Constitution, decisions produced using AI appear to violate all but one or two of them. For instance, AI systems may provide the right to present evidence and notice of the proposed action, but do not provide any opportunity for meaningful cross-examination, knowledge of opposing evidence, or the true reasoning behind a decision. Notice can also be inadequate or even incomprehensible. This Article analyzes the challenges of complying with procedural due process when employing AI systems, explains constraints on computer-assisted legal decision-making, and evaluates policies for fair AI processes in other jurisdictions, including the European Union (EU) and the United Kingdom (UK). Building on existing literature, it explores the various stages in the AI development process, noting the different points at which bias may occur, thereby undermining procedural due process principles. Furthermore, it discusses the key variables at the heart of AI machine learning models and proposes a framework for responsible AI designs. Finally, this Article concludes with recommendations to promote the interests of justice in the United States as the technology develops.

Mudau on Zimbabwe’s Non-implementation of Devolution

Paul Mudau has posted A Critical Analysis of Zimbabwe’s Non-implementation of Constitutional Injunctions on Devolution on SSRN.  Here is the abstract:

Zimbabwe’s 2013 Constitution provides for a multi-level system of government whereby the government is constituted at national, provincial and local levels. Despite the new Constitution being relatively comprehensive about the devolution of powers to the subnational levels of government, the country is still trapped within the post-independence highly centralised unitary state design. Although the new Constitution was adopted in 2013, devolution has not yet been fully implemented in Zimbabwe. This non-implementation of the constitutional injunctions on devolution, almost a decade after the promulgation of the Constitution, brings into question the country’s commitment to the devolution of powers and constitutionalism. This article critiques this state of affairs, and identifies the politico-legal factors responsible for the country’s non-implementation of the constitutional injunctions on the devolution of powers to subnational levels of government. This article’s central thesis is that the full devolution of powers is one of the significant levers of constitutional transformation in Zimbabwe.

Nwaeze on the Metaverse, NFTs, & IP

Godstime Nwaeze (Nnamdi Azikiwe University, Faculty of Law) has posted NFTs and Metaverse: Exploring the Challenges and Prospects for IP Lawyers in the Digitalized World on SSRN.  Here is the abstract:

This unprecedented technological advancement comes with promise and peril for content creators and consumers. In these digital worlds, various digital goods are bought and sold. These goods, though not physical, represent the same goods that are found in the normal marketplace. Consequently, companies are apprehensive about the intellectual property of goods to be sold in the metaverse. Protecting these assets invites a flurry of new legal challenges, and this is where the IP lawyers find their prospects. The field of IP covers inventions, artworks, symbols and trademarks which are legally protected by patents, copyrights and trademarks laws. This paper explores the implications of NFTs in metaverse for companies and consumers, and the place of IP laws in that regard.

Fletcher & Khalil on the Indian Child Welfare Act & Anticommandeering

Matthew L. M. Fletcher (University of Michigan Law School) & Randall Khalil (University of Michigan at Ann Arbor) have posted Preemption, Commandeering, and the Indian Child Welfare Act (Wisconsin Law Review, Vol. 2022, No. 5, 2022) on SSRN.  Here is the abstract:

This year (2022), the Supreme Court agreed to review wide-ranging constitutional challenges to the Indian Child Welfare Act (ICWA) brought by the State of Texas and three non-Indian foster families in the October 2022 Term. The Fifth Circuit, sitting en banc, held that certain provisions of ICWA violated the anticommandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.

We argue that the anticommandeering challenges against ICWA are unfounded because all provisions of ICWA provides a set of legal standards to be applied in state which validly and expressly preempt state law without unlawfully commandeering the States’ executive or legislative branches. Congress’s power to compel state courts to apply federal law is long established and beyond question.

Yet even if some provisions of ICWA did violate the Tenth, we argue that Section 5 of the Fourteenth Amendment sufficiently authorizes Congress’s enactment of ICWA so as to defeat the anti-commandeering concerns. Strangely, no party ever invoked Congress’s power under Section 5 of the Fourteenth Amendment to assess its constitutionality. ICWA seems like an obvious candidate for analysis under Congress’s enforcement powers under Section 5. States routinely discriminated against American Indian families on the basis of their race and ancestry (and their religion and culture), and ICWA is designed to remedy the abuses of state courts and agencies.

We further have no doubt that the state legislatures that adopted ICWA in whole, in part, or as modified also possessed the power to do so, even in the event the Supreme Court holds all or portions of ICWA unconstitutional.

Pappoe on Black Women and Eviction

Yvette N. A. Pappoe (University of the District of Columbia - David A. Clarke School of Law) has posted The Scarlet Letter 'E': How Tenancy Screening Policies Exacerbate Housing Inequity for Evicted Black Women on SSRN.  Here is the abstract:

The COVID-19 pandemic resulted in an unprecedented health and economic crisis in the United States. In addition to 900,000 deaths in the United States and counting, another kind of crisis emerged from the ongoing pandemic – an eviction crisis. In August 2020, an estimated 30-40 million people in America were at risk of facing eviction by the end of the year. Black women renters faced a higher risk of losing their homes. At the onset of the pandemic, federal eviction moratoriums were implemented to prevent the evictions of tenants who were unable to pay their rent during the pandemic. However, the temporary nature of the moratoriums had little to no impact on the persisting effects evictions have on Black women seeking future housing. Black women were most affected by evictions before the pandemic but were devastatingly impacted throughout the pandemic and beyond. The pandemic simply brought this oft forgotten group’s plight to the forefront.

Using an intersectional lens, this Article seeks to analyze the current eviction crisis to highlight who is most burdened and why. There has been widespread concern expressed about the discriminatory effects of landlords’ use of criminal records in making rental decisions and its impact on Black and brown people. This Article is the first to contextualize similar concerns about the use of eviction records and its disparate impact on Black women. Having an eviction record, much like having a criminal record, “blacklists” tenants from finding future housing. Renters with mere eviction filings—not final eviction orders—on their records face the harsh collateral consequences of eviction. I refer to the stigma that follows a person with a record of an eviction proceeding on their public record as the “Scarlet Letter E.” Landlords regularly displace or blacklist Black women who have prior eviction records, thereby preventing them from accessing future available housing units. To assist with this, landlords typically hire tenant screening companies to conduct background reports, which typically comprise information related to a tenant’s criminal history, residential history, credit score, and eviction history. Landlords’ use of these reports disproportionately impacts Black women who have an eviction filing on their record and prevents them from securing public and private housing.

This Article is the first to analyze the disparate impact of the use of eviction filings in rental housing decisions under the FHA. The Article argues that blanket tenant screening policies are arbitrary, artificial, and unnecessary barriers that operate invidiously to discriminate against Black women and therefore violate the Fair Housing Act (FHA). It then recommends some areas of reform, like eviction record expungement, sealing laws, and a ban the box initiative, all of which draw heavily on work related to the use of criminal records spearheaded by organizers and advocates. In addition, the Article suggests an interpretation of the FHA by HUD and the courts to hold landlords and the tenant screening companies that produce these tenant screening reports liable under the FHA for the disparate impact these policies and practices have on Black women.

Calabresi, Lawson, & Kostial on the Original Meaning of Necessary

Steven G. Calabresi (Northwestern University - Pritzker School of Law), Gary Lawson (Boston University School of Law), Elise Kostial (Yale University - Law School) have posted What Mcculloch V. Maryland Got Wrong: The Original Meaning of 'Necessary' is Not 'Useful', 'Convenient', or 'Rational' on SSRN.  Here is the abstract:

McCulloch v. Maryland, echoing Alexander Hamilton nearly thirty years earlier, claimed of the word 'necessary' in the Necessary and Proper Clause: 'If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports that one thing is convenient, or useful . . . to another.'. Modern case law has translated that understanding into a rational-basis test that treats the issue of necessity as all but nonjusticiable; The Supreme Court has never found a congressional law unconstitutional on the ground that it was not 'necessary . . . for carrying into Execution' a federal power. Marshall, and Hamilton before him, were simply wrong in their empirical claim about the meaning of 'necessary'. We show, using founding-era dictionaries, an extensive corpus linguistic study of founding-era sources, and intertextual and intratextual analysis, that the original meaning of 'necessary' cannot plausibly be equated with 'convenient', 'useful', 'conducive to', or 'rational'. The case against Marshall and Hamilton’s linguistic claim is simply overwhelming. That does not mean that executory laws are 'necessary' only if 'indispensable', as the State of Maryland, echoing Thomas Jefferson, argued in McCulloch. While that strict meaning finds support in many of the sources that we examine, it does not constitute the best meaning in the specific context in which the term 'necessary' appears in the Constitution: A clause defining the incidental powers of agents. In that setting, familiar from the law of agency, a better fit is James Madison’s view that executory laws are necessary if they exhibit “a definite connection between means and ends, ”'showing some obvious and precise affinity' between the laws and the powers which they implement. In modern parlance drawn from another context, one might say that executory laws are necessary if they are congruent and proportional to the task to which they are put. Our principal goal in this article is not to defend this Madisonian view of necessity but simply to show that Marshall and Hamilton’s linguistic claim about the meaning of 'necessary' is false. We do not offer a comprehensive account of the original meaning of the Necessary and Proper Clause beyond this simple observation. But because McCulloch’s dictum has become canonical, we examine some of the leading cases involving federal power to see whether substituting a congruence-and-proportionality test for the test of usefulness, convenience, or rationality would make a large difference in outcomes. Holding all other elements and applications of doctrine equal, we find only a few cases in which getting right the original meaning of 'necessary' might make a difference – and those cases are already widely seen as anomalous under current doctrine. Nonetheless, there is value in getting such things right, including focusing attention on the extent to which the Necessary and Proper Clause rather than the Commerce Clause is the key to understanding the scope of federal power.

Highly recommended.  Download it while it's hot!

Sultany on Palestine & Human Rights Law

Nimer Sultany (University of London, School of Oriental & African Studies - School of Law) has posted The Question of Palestine as a Litmus Test: On Human Rights and Root Causes (Palestine Yearbook of International Law, vol 23) on SSRN.  Here is the abstract:

Recent mainstream human rights discourse displays a paradoxical movement. On the one hand, there is a growing movement toward the acknowledgement of the reality of Israeli apartheid. On the other hand, there is growing recognition of the long-standing impunity that enabled the consolidation of apartheid in the first place. The first move may revive faith in international law whereas the recognition of impunity would seem to increase skepticism toward the law’s ability to deliver the promise of accountability and thus increase a sense of futility. The question becomes the nature of law’s predicament and whether better enforcement or more law can remedy it. In other words, the question is whether change in the terms of the legal analysis would lead to a significant change in law’s ability to hold the powerful to account and reduce suffering. This article argues that the Question of Palestine remains a “litmus test” for international law and human rights and their ability to address historical wrongs. Part II contrasts the legalistic and holistic approaches of mainstream international human rights organizations in their apartheid reports in order to illustrate the indeterminacies and limits of apartheid’s application in the Palestine context. Despite differences between human rights organizations’ reports, as well as changes in their own reporting and framing over time, the main failings are “structural” because they reflect the limitations, assumptions, and legitimating effects of the human rights discourse and international legal tools they deploy. Thus, the rest of the article contextualizes these reports in wider trends and assesses their potential legal and political effects. Since these reports seek to provide a comprehensive conflict-mapping account, Part III examines the limits of this search for root causes and the full context in which systematic human rights violations occur. It distinguishes between approaches to root causes that centralize occupation, discrimination, or colonialism, and argues that although the apartheid reports provide better context than has hitherto been offered in mainstream human rights discourse, they do not go far enough. This is because they de-politicize and de-historicize the Question of Palestine when they omit colonialism as a relevant framework to understanding Zionist practices, as evident in the exclusion of Palestinian self-determination from the crime of apartheid’s application. Equally consequential is the omission of imperialism as a root cause, in particular United States (US) support for Zionist colonialism. Foregrounding colonialism and imperialism as root causes uncovers law’s complicity in the infliction of injustice on the Palestinians. Part IV examines the “discourse of failure” that prompts this search for root causes in light of long-standing impunity. This discourse blames the failure on the state or the international community’s political will. It thus reduces the failure to a question of lack of enforcement or selectivity and obscures the role of imperialism by referring to an abstract “international community.” Consequently, it absolves law from complicity despite the fact that impunity and selectivity are endemic in international law and relations. Part V unpacks the selectivity argument in light of recent international action against Russian aggression in Ukraine. It illustrates that the critique of selectivity fails to recognize the rules’ unfairness and that selectivity is a legal – no less than political – condition, as the International Criminal Court’s (ICC) practice illustrates. Consequently, demanding better enforcement and offering more and better law is unlikely to solve the predicament of impunity. If the problem is not law’s absence as much as law’s complicity in injustice, then more law is not going to resolve it.

Highly recommended.

Goldammer on Case Selection by the U.S. Supreme Court and the Italian Constitutional Court

Matthew Goldammer (Notre Dame Law School) has posted Functional Equivalence Despite Formal Differences?: Comparing Case Selection Mechanisms in the Supreme Court of the United States and the Constitutional Court of Italy (California Western International Law Journal, Forthcoming) on SSRN.  Here is the abstract:

A legal system’s apex court wields immense authority by issuing final judgments from which there is no further appeal. The Supreme Court of the United States and the Constitutional Court of Italy are both apex courts and, when working through and ultimately deciding cases, affect their countries’ legal and social consciousness in tangible and potentially long-lasting ways. Though the form of these apex courts’ constitution, composition, and jurisdiction differs significantly, both courts utilize case selection mechanisms that functionally achieve similar results and goals. This Essay compares and analyzes these courts’ case selection mechanisms in their proper context and scope, noting the ramifications that these case selection mechanisms might have on the apex courts’ respective legal systems. This Essay ultimately concludes that when comparing how these apex courts choose cases, it is proper to adopt a via media approach, one that ultimately considers both the formal differences and functional similarities of these apex courts’ case selection mechanisms.

Legal Theory Lexicon: Corpus Linguistics

Introduction

Law students quickly learn that the interpretation of legal texts is an important component of legal practice.  Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision.  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called "corpus linguistics," has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  As always, the Lexicon is aimed at law students with an interest in legal theory.

Situating Corpus Linguistics

Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflecting in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or "plain meaning textualism") has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.

The turn to textualism and originalism is based in part on a recognition of the importance of two theoretical distinctions.  The first distinction is between "communicative content" and "legal content."  Legal texts communicate content to readers: the communicative content of a text is roughly what we call the "linguistic meaning" of the text.  But operative legal texts also create "legal content."  For example, constitutional provisions give rise to doctrines of constitutional law.  These legal rules may be direct translations of the linguistic meaning of the text, but sometimes the legal content can be significantly different from the communicative content: the First Amendment to the United States Constitution begins "Congress shall pass no law," but the legal doctrines that implement the freedoms of speech and press apply to judicial and executive action. 

Closely related to the distinction between communicative content and legal content is the interpretation-construction distinction.  When this distinction is made, the meaning of "interpretation" is the discovery of the communicative content, whereas "construction" means the determination of legal effect.  One important component of communicative content is "conventional semantic meaning"--the meaning that assigned to words and phrases by patterns of usage.  Dictionary definitions, if they are accurate, report conventional semantic meanings.

During the period when living constitutionalism and purposivism were the dominant approaches to the interpretation and construction of statutes, the precise linguistic meaning of statutory and constitutional provisions was relatively unimportant.  Because courts did not consider themselves bound by the meaning of the words and phrases, fine distinctions about meaning were much less important than the identification of the purposes and values that would determine the outcome of constitutional and statutory disputes.  But with the turn to formalist approaches like originalism and textualism, questions of meaning became significantly more important.

One approach to conventional semantic meanings relies on linguistic intuitions and dictionary definitions.  But this method has important limitations.  Linguistic intuitions are not infallible, and they may be affected by motivated reasoning.  Dictionary definitions are based on limited data collection and subjective judgments by the lexicographers who compile the dictionaries.  This raises the question whether there are better, more accurate, and more objective approaches.

The gradual ascent in the importance of the linguistic meaning of legal texts occurred at roughly the same time as another important development in the legal academy--the rise of interdisciplinary approaches in general and of empirical legal studies in particular.  This focus on empirical and interdisciplinary methods lead legal scholars (especially those with training in linguistics and the philosophy of language) to corpus linguistics--a data driven approach to linguistic meaning.

In sum, the turn to corpus linguistics in law is (at least in part) a result of the new emphasis on the meaning of legal texts (formalism) and the turn to interdisciplinary methods (empirical legal studies and linguistics).

How Does Corpus Linguistics Work? 

 Corpus linguistics begins with data sets, singular "corpus" or plural "corpora."  These data can be very large--with millions or even billions of words.  For example, the Corpus of Contemporary American English (COCA) consists of approximately 520 million words.  News on the Web (NOW) consists of more than 5.21 billion words.

Corpus lexicography uses these datasets to investigate the meaning of words and phrases.  Whereas traditional dictionary lexicography relied on researchers compiling instances of usage by reading various sources, the corpus approach allows random sampling from large databases with blind coding by multiple coders.

A complete description of the methods of corpus lexicography is beyond the scope of this brief Lexicon entry, but there are two search techniques that can be described briefly.  The first of these is the Key-word-in-context (or KWIC) search.  This method is simple: a corpus is searched for the occurrence of a string (a word or phrase) and reports back the context in which the string occurs.  The individual instances can then be coded for meaning.  The result will be a set of meanings and data about the frequency of the meanings with the sample.  The second method involves a search for the collocates of a word or phrase: for example, the word "bank" might have collocates like "river," "shady," "deposit," and "ATM."  Collocates may help to disambiguate a word like "bank" that has multiple meanings.

Application of Corpus Linguistics to Legal Interpretation

How can the techniques of corpus lexicography be applied to the interpretation of legal texts?  The primary role of the corpus approach is the identification of conventional semantic meanings for words and phrases.  This use of corpus linguistics was pioneered by Associate Chief Justice Thomas Lee of the Utah Supreme Court.  In State v. Rasabout, the defendant was convicted of violating a Utah statute that made it a crime to “discharge any kind of dangerous weapon or firearm . . . from an automobile . . . ; from, upon, or across any highway; . . . or . . . within 600 feet of . . . a house.”  The word "discharge" has two meanings relevant to firearms: one meaning is roughly "to shoot" and another is "to unload."  The former meaning would result in a violation for each shot fired, but the second would result in only one violation for emptying all of the bullets contained in the firearm.  In a concurring opinion, Justice Lee used a COCA search to demonstrate that the sense of discharge that applies to a single shot is much more common than the alternative sense.  Justice Lee reasoned that this frequency data supported an inference that the ordinary or plain meaning of the statute supported a conviction for multiple violations of the statute.

The use of corpus lexicography may be even more important in the case of constitutional or statutory provisions that were drafted long ago, for example, the provisions of the United States Constitution drafted at the Philadelphia Convention were written using the linguistic conventions of the late eighteenth century--well more than two centuries ago.  Because of linguistic drift, the meaning of some of the words and phrases may have changed over time.  For example, the phrase "domestic violence" now refers to violence with a family such as spouse abuse, but in the late eighteenth century it referred to activities like riots and insurrections within the boundaries of a state.  By using date restricted searches from corpora that include usage in the late eighteenth century, corpus linguistics can be used to identify the range of semantic meanings during the time the unamended constitution was drafted.

Limitations on Corpus Linguistics

Corpus lexicography can identify the set of conventional semantic meanings that were available to the drafters of a contract, will, rule, regulation, statute or constitutional provision, but there are important limitations, including the following:

• Technical meanings: Many legal texts employ "terms of art" or technical language, including, of course, the specialized usages of lawyers.  Coding a random sample of usages from a general-purpose corpus is not a good technique for sorting out technical usages, but using a corpus that is comprised of legal texts from the relevant community of lawyers would enable identification of the relevant range of technical meanings.
• Limits on the Probative Value of Frequency Data:  Frequency data may be useful in identifying the "ordinary" or "plain" meaning of a legal text--especially if one sense of an ambiguous word or phrase is overwhelming predominant.  But where there are multiple sense of a word or phrase, frequency data, although relevant, should be supplemented by context, which often will reveal which sense was communicated to the intended readership.
• The Special Problem of Modulation:  Corpus approaches may not be suited to the identification of what are called "modulations"--the use of a word in a new sense.  For example, the Recess Appointments Clause may have used the word "recess" in a new modulated sense, in which the recess of the Senate is defined in contrast to the "session" of the Senate.  This modulated sense of the word recess would apply to "intersession recesses" but would not apply to other breaks (including short lunch breaks) that are within the literal meaning of the word "recess."
• Semantics versus Pragmatics (especially contextual enrichment):  Corpus lexicography has an important role to play in determining the semantic meaning of legal texts, but the bare semantic meaning of a text is not necessarily equivalent to the text's full communicative content.  One of the reasons that communicative content is richer than semantic content (literal meaning) is that authors can convey additional meaning through what are called "contextual enrichments."  For example, the great philosopher of language identified the phenomenon of "implicature," whereby an author can communicate content without stating it.  Grice's famous example is a letter of recommendation: the letter states that the candidate was punctual and attended class regularly.  The semantic content is mildly positive, but in the context of a recommendation, this is "damning with faint praise" and communicates the message that the candidate is not qualified for the position.

Because of these limitations, corpus linguistics does not provide a complete method of statutory or constitutional interpretation.  For example, in the case of the United States Constitution, the method of corpus linguistics could be combined with study of the constitutional record and immersion of the linguistic world of the period in which a given constitutional provision was written.

Conclusion

The introduction of a new methodology to legal theory is a rare event, but corpus linguistics is one of the black swans.  It is still early days, but the use of corpus methods has already begun in earnest--both in the courts and the academy.  The Bibliography provides many of the key sources in a literature that still can easily be read in just a few days.

Related Lexicon Entries

• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 051: Vagueness and Ambiguity
• Legal Theory Lexicon 071: The New Originalism
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 079: Communicative Content and Legal Content

Bibliography

• Wayne Davis, Implicature, Stan. Encyc. Phil. (last revised Sept. 22, 2010), http://plato.stanford.edu/entries/implicature/
• Clarissa Hessick, Corpus Linguistics and the Criminal Law, 2018 B.Y.U. L. Rev. (2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3031987
• Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L. J. 788 (1018), https://www.yalelawjournal.org/article/judging-ordinary-meaning.
• D. Carolina Núñez, War of the Words: Aliens, Immigrants, Citizens, and the Language of Exclusion, 2013 BYU L. Rev. 1517 (2013)
• Vincent B. Y. Ooi, Computer Corpus Lexicography (1998)
• Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101 (2016)
• James C Phillips, Daniel M. Ortner & Thomas R. Lee, Corpus Linguistics & Original Public Meaning: A New Tool to Make Originalism More Empirical, 126 Yale L.J. F. 21 (2016)
• Lawrence M. Solan, Can Corpus Linguistics Help Make Originalism Scientific?, 126 Yale L.J. F. 57 (2016)
• Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95 (2010)
• Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2018 B.Y.U. L. Rev. (forthcoming 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019494
• Lee J. Strang, How Big Data Can Increase Originalism’s Methodological Rigor: Using Corpus Linguistics to Reveal Original Language Conventions, 50 U.C. Davis L. Rev. 1181 (2017).

Cases

• State v. Rasabout, 356 P.3d 1258 (Utah 2015)
• People v. Harris, 885 N.W.2d 832, 838–39 (Mich. 2016). 

(This entry was last revised on September 4, 2022.)

Legal Theory Bookworm: "Predictive Policing and Artificial Intelligence," edited by McDaniel & Pease

The Legal Theory Bookworm  recommends Predictive Policing and Artificial Intelligence, edited by John McDaniel & Ken Pease.  Here is a description:

This edited text draws together the insights of numerous worldwide eminent academics to evaluate the condition of predictive policing and artificial intelligence (AI) as interlocked policy areas. Predictive and AI technologies are growing in prominence and at an unprecedented rate. Powerful digital crime mapping tools are being used to identify crime hotspots in real-time, as pattern-matching and search algorithms are sorting through huge police databases populated by growing volumes of data in an eff ort to identify people liable to experience (or commit) crime, places likely to host it, and variables associated with its solvability. Facial and vehicle recognition cameras are locating criminals as they move, while police services develop strategies informed by machine learning and other kinds of predictive analytics. Many of these innovations are features of modern policing in the UK, the US and Australia, among other jurisdictions.

AI promises to reduce unnecessary labour, speed up various forms of police work, encourage police forces to more efficiently apportion their resources, and enable police officers to prevent crime and protect people from a variety of future harms. However, the promises of predictive and AI technologies and innovations do not always match reality. They often have significant weaknesses, come at a considerable cost and require challenging trade- off s to be made. Focusing on the UK, the US and Australia, this book explores themes of choice architecture, decision- making, human rights, accountability and the rule of law, as well as future uses of AI and predictive technologies in various policing contexts. The text contributes to ongoing debates on the benefits and biases of predictive algorithms, big data sets, machine learning systems, and broader policing strategies and challenges.

Written in a clear and direct style, this book will appeal to students and scholars of policing, criminology, crime science, sociology, computer science, cognitive psychology and all those interested in the emergence of AI as a feature of contemporary policing.

Download of the Week: "The Coherence of Prison Law" by Dolovich

The Download of the Week is The Coherence of Prison Law by Sharon Dolovich.  Here is the abstract:

In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state. In terms of doctrine, I show that, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers to construct doctrinal standards for prison law cases that strongly incline courts to rule for defendants. Yet skewed doctrinal standards alone cannot explain prison law’s strong pro-state bent, since courts hearing prison law cases will often side with defendants even when plaintiffs’ claims are strong on the merits and even when defendants’ arguments strain credulity. To achieve this effect also requires a judicial readiness to see the state’s case through an especially sympathetic lens and to exhibit a studied indifference to plaintiffs’ constitutional rights and lived experience. As I show, the Court’s prison law opinions persistently exhibit this orientation, which I term dispositional favoritism. When federal courts hearing prison cases follow this lead, as they frequently do, they can wind up favoring defendant prison officials in any number of ways hard to square with either the record or the relevant legal rules. These dynamics, hidden in plain sight, had been present in the prison law doctrine for decades. Then came Covid-19. As this essay shows, the methods courts used to deny the COVID claims of incarcerated plaintiffs were the same that have been used for years to deflect prisoners’ constitutional claims more generally. COVID, in short, definitively confirmed the terrible coherence of prison law: it is consistently and predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated. These features collectively embody the plainly divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases.

Highly recommended.

Baker on a Jurisprudence of Love

Jeffrey R. Baker (Pepperdine Caruso School of Law) has posted A Sermon on the Law: The Jurisprudence of Love on SSRN.  Here is the abstract:

This essay, in the form of a sermon to lawyers and lawmakers, articulates a liberating, progressive, theological jurisprudence of love. This jurisprudence seeks the empowerment of all people and advances a strong policy preference for the poor and disenfranchised. Rooted in scripture, this critical rule measures law and policy in the United States against fundamental human dignity. This is an ancient, radical message for contemporary law and policy. This theory of love is a critique of reactionary, right-wing fundamentalism. It condemns emerging Christian nationalism, affirms inclusive democracy, provides a systemic assessment for policy and politics, and marks a path toward beloved community. Drawing on doctrines that have underpinned movements for abolition, universal suffrage, peace, and civil rights, the homiletic form quickens a positive, normative jurisprudence with accessible rhetoric that avoids partisan, academic shibboleths. Relying on Black and Latin American liberation theologies; feminist, indigenous, and Asian theologies; natural law jurisprudence; critical theories; and Anglican, Catholic, Evangelical, and Orthodox sources, the essay aims to reconcile antagonists with a compelling, universal commitment to restoration and justice by tracing the imperative legal and policy implications of love.

Kim on the Digital Markets Act

Yunsieg Kim (University of Missouri at Columbia - University of Missouri School of Law) has posted The Digital Markets Act and the Illusion of 'Future-Proof' Tech Regulation on SSRN.  Here is the abstract:

On July 5, 2022, the European Parliament passed the Digital Markets Act (DMA), intended to curb anticompetitive behavior and other unfair practices by platforms such as Apple and Google. For example, Apple’s App Store is currently the only means of distributing apps for iOS. Apple has been accused of exploiting such gatekeeping powers to engage in self-preferencing—such as ranking Apple apps above third-party apps in the Apple App Store’s most-popular-apps charts.

Whereas conventional antitrust law targets conduct that harms efficiency, like price-fixing, the DMA prohibits acts deemed to be “unfair” independent of whether they affect efficiency. For example, a gatekeeper “shall not treat more favo[]rably[] in ranking . . . products offered by the gatekeeper itself than similar services or products of a third party” and “shall apply transparent, fair and non-discriminatory conditions to such ranking,” “independent from the actual . . . effects of the conduct of a given gatekeeper . . . on competition.” European authorities also stress their goal of “future-proofing” the DMA. To that end, the European Commission can “supplement” the DMA’s various provisions, including the self-preferencing ban, without legislative amendment.

This Article argues that the DMA would be ineffective, counterproductive, and unnecessary for restraining gatekeepers’ app stores from self-preferencing. The DMA would be ineffective because, even if gatekeepers use only “transparent, fair and non-discriminatory” criteria to rank apps, facially neutral criteria such as revenue and the number of users can be manipulated to produce biased rankings. For example, an app ranked first for revenue ranks fifty-third for user numbers, and such criteria can be weighted to create any number of rankings favoring certain apps. If gatekeepers resist complying with the requirement to use only neutral criteria to rank apps, it would be difficult for regulators to force compliance by micromanaging ranking criteria because they can number in the hundreds, are guarded secrets, and are well-suited for trade secret protection.

The DMA would also be counterproductive to consumer welfare because it would enable arbitrary punishments of platforms and distort how app developers compete. Article 13 prohibits any activity that the Commission in its sole discretion deems to be a circumvention of the DMA, regardless of the act involved. The effectively unrestricted scope of Article 13 would undermine gatekeepers’ inclination and ability to operate in the internal market. As to distorting competition, the DMA’s self-preferencing ban does not appear to allow exceptions, even when a gatekeeper’s app is actually superior to the competition. Finally, existing law is already capable of restraining app stores from self-preferencing, without the DMA’s byzantine obligations and impracticable future-proofing scheme. I argue that competition from third-party app stores can deter gatekeepers from biased ranking practices, and that existing law can force a gatekeeper to compete by establishing a claim of anticompetitive tying involving the gatekeeper’s operating system and its app store.

Sciullo on Democratic Order

Nick J. Sciullo (Texas A&M University - Kingsville) has posted The Un-Reality of Democratic Order: An Alternative (St. Thomas Journal of Law and Public Policy 15, no. 2, 522-543 (2022)) on SSRN.  Here is the abstract:

While recent events in the United States have cast renewed doubt on the fragile democratic experiment that is this country, the more accurate account of an alternative reality is the idea of democratic order, which has often been described as central to democratic governance. This is the belief that democracy is necessarily ordered, and that order is consistent with democracy. But the existence of this order is dubious at best, and this has been historically true. Indeed, much of what is colloquially described as “American democracy” is deeply flawed. There is no democratic order and never has been. It is not QAnon, Trump, Fox News, and OAN that threaten democratic order, but rather it is the idea that democracy is or ever has been ordered.

If we focus too much on democracy’s perceived benefits and remain convinced that it is the best of all possible options despite wide-ranging critiques, then we miss the opportunity to critique democracy and challenge some of our ideas about democracy to promote a better form of democracy. Deluding ourselves about some classical democratic age that we ought to aspire to softens our ability to do the hard critical work needed to build more supportive and participatory schemes of governance. In an era of fake news, deception, post truth, and related concepts, we need to be that much more critical as we are inundated with the uncritical because we are all affected by the deluge of information that makes it more difficult to make sense of the world. The information age has given us access to so much more information than we could ever process, there is little doubt democracy is constantly struggling to keep up and falls victim to wide-ranging misinformation and disinformation campaigns and conspiracy theories.

Staszewski on Interpreting Ballot Initiatives

Glen Staszewski (Michigan State University College of Law) has posted Interpreting Initiatives Sociologically (Wisconsin Law Review, Vol. 2022, No. 5) on SSRN.  Here is the abstract:

When state courts interpret successful ballot initiatives, they characteristically rely upon formal sources of legal meaning to attribute an intent to the voters that is usually a fiction. One potential response to this interpretive dilemma is for state courts to rely upon originalist or textualist methods and associated populist rhetoric to assign an original public meaning to the law that was presumably understood and endorsed by the voters. This approach would substitute the fiction of popular intent with the pretense that “the People” can speak with a single voice through the initiative process, and that state courts can neutrally and objectively hear and articulate their will. Because courts can utilize originalist or textualist methods to interpret successful ballot initiatives in a manner that is consistent with their own preferences, while attributing their choices to the People, this approach is profoundly undemocratic.

State courts could instead forthrightly acknowledge that voters lack an ascertainable intent on most interpretive problems, and that a ballot initiative’s original public meaning on the precise question at issue is often ambiguous. Interpretive litigation is therefore frequently, and necessarily, a continuation of the lawmaking process. Like other policy choices in a pluralistic democracy, the resulting decision should reflect the most justifiable option on the merits under the circumstances based on reasoned consideration of the relevant legal, ethical, and sociological criteria. Drawing loosely upon progressive-era jurisprudential theory, I label this approach “sociological jurisprudence.”

While prior efforts to instantiate sociological jurisprudence have foundered on legitimate concerns regarding the judiciary’s limited institutional competence and questionable democratic pedigree, this Essay contends that those concerns could be counteracted in the initiative context by assigning decision-making authority over interpretive disputes to a deliberative jury. The deliberative jury would be presented with data, views, and arguments regarding the relevant legal, ethical, and sociological considerations, and charged with selecting the most justifiable understanding of the initiative based on this information. State courts would perform the limited roles of referring cases to this interpretive process and reviewing the constitutionality of the deliberative jury’s decision. This approach would promote federalism’s experimental spirit and direct democracy’s preference for lawmaking by the people, while counteracting characteristic problems with the initiative process and improving the quality of constitutional dialogue within the states.

Highly recommended.

Trivedi on the Adoption and Safe Families Act

Shanta Trivedi (University of Baltimore School of Law) has posted The Adoption and Safe Families is Not Worth Saving: The Case for Repeal on SSRN.  Here is the abstract:

The controlling federal family regulation law, the Adoption and Safe Families Act of 1997(“ASFA”) has long been criticized for unnecessarily terminating the rights of parents and leaving thousands of children in its wake without legal parents or any prospect for adoption. Critics highlight the irreparable destruction ASFA has caused to the Black community, and many suggest that this impact is by design, not disproportionate impact. As a result, a growing movement of impacted parents, advocates, and scholars has called for ASFA’s total repeal. This article draws on the work of these impacted parents and children, advocates, and scholars to argue that a law whose foundation is built on inherently prejudicial policies, cannot be repaired; it must be dismantled in its entirety. It analyzes attempts at reform to demonstrate that any attempt at amendment would be insufficient. Further, it explains why in addition to the positive legal implications, repealing ASFA has symbolic importance to those most impacted by the law and its attendant policies. The article concludes by proposing a path forward that respects the right to family integrity and recognizes the importance of supporting and investing in communities.

Ring on Patent Law & Climate Change

Caoimhe Ring (University of Oxford) has posted Patent Law and Climate Change: Innovation Policy for a Climate in Crisis (Harvard Journal of Law & Technology Volume 35, Number 1 Fall 2021) on SSRN.  Here is the abstract:

Meeting the Paris Agreement target of maintaining global average temperature increases well below 2.0°C requires rapid innovation in climate-friendly, or green, technologies. A substantial literature has mapped the relationship between patent law and climate change, with the concern that patents are likely to interfere with progress on climate goals, yet there is little agreement on the solutions to this problem. This Note suggests patents may be less significant for green 'invention', at its early research stages, but that patents may still be important for green 'innovation'—encouraging the commercialization and diffusion of mature energy technologies.The main contribution of this Note is the contention that patents may have a thus-far under-examined role in promoting green innovation at the commercialization stage of innovation. Despite these intuitions, there has been inadequate investigation of entrepreneurial patenting practices from a theoretical or empirical standpoint. This is problematic as a matter of present knowledge, but it also risks neglecting a key component of the patent system as it affects green innovation. Commercialization and diffusion, it appears, have escaped attention owing to a failure to take stock of the broader innovation context. To remedy these issues, this Note draws on the innovation system literature, which may provide a useful framework to analyze patent law in the context of a variety of innovation incentive mechanisms which seek to respond to the innovation policy challenge posed by climate change.

Lando on Courts & Climate Policy

Henrik Lando (Copenhagen Business School - CBS Law) has posted Should courts decide climate policies? on SSRN.  Here is the abstract:

Climate litigation has become a trend in recent years. In one form such litigation organized citizens seek to require governments to set more ambitious CO2-abatement goals. In the Dutch Urgenda case, which is held to be a landmark case, the plaintiffs prevailed, forcing the Dutch government to change its climate policies. Using Urgenda as illustration, this article provides reasons for being skeptical of such climate litigation. One central reason for skepticism is the courts’ lack of democratic legitimacy, but this article focuses on another reason, namely that court litigation cannot be trusted as a mechanism for making good climate decisions. This functional reason for skepticism is well illustrated in the Urgenda case, where the courts framed the policy question in a manner that made it conducive to court adjudication, but where this framing was untenable. The Supreme Court referred to a scientific and political consensus about the need for more ambitious abatement and inferred that the Dutch State’s greater obligations then followed from human rights principles and the precautionary principle. However, this framing was invalid, as there is no clear scientific or political consensus about the required degree of abatement and as neither human rights nor precautionary principles provide a coherent framework for weighing costs and benefits of alternative climate policies. In the absence of this framing, the Court would have had to consider the theories that seek to weigh costs and benefits of more abatement, and such consideration of alternative theories cannot reliably be conducted through the mechanisms of legal adjudication. For one thing, courts are in civil trials restricted to considering the evidence that litigants bring forth. Notably, in Urgenda, the Dutch government could not be expected to dispute facts or theories to which it was politically committed. Moreover, the theories weighing costs and benefits are inherently complex, and judges cannot be expected to be able to choose between them. For instance, choosing between different theoretical prescriptions requires an understanding of the very intricate question of the proper rate of discounting over time.

Farwell on "Identity Capitalists" by Leong

Ellen Farwell (New England Law | Boston) has posted A Real Seat at the Table: Identity Capitalism and State Law Efforts to Diversify Corporate Boards (56 New Eng. L. Rev 141 (2022)) on SSRN.  Here is the abstract:

This Response applies the lens of identity capitalism as articulated in Professor Nancy Leong in Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality (2021) to the issue of corporate board membership, highlighting the potential for the law to be a tool for progress and not mere protection. The Response argues that with respect to corporate board membership the law could go beyond protecting outgroups to ensure that outgroup members have seats of meaningful power and influence. The Response begins with a description of current trends relating to the composition of public company boards of directors and recent statutory efforts to increase the diversity of these boards. Through the lens of Professor Leong’s identity capitalism, the Response argues that lawmakers have a chance to proactively solidify the power and influence of outgroup directors of corporate boards and limit the inadvertent reinforcement of identity capitalism.

Pauli on Neutrality

Carol Pauli (Texas A&M University School of Law) has posted The "End" of Neutrality: Tumultuous Times Require a Deeper Value (Cardozo Journal of Conflict Resolution, Vol. 23, Iss. 3, 2022, pp. 557-571) on SSRN.  Here is the abstract:

This essay has observed that, when times are tumultuous, third parties who intend to be neutral may need some mooring beyond the norms that are shifting. It argues that neutrality is an unsatisfying value in such times and suggests that neutrals look to the deeper values of their field. It proposes human dignity as a good place to begin, and it invites others to explore whether an initial commitment to the inherent worth of every person would make a helpful difference in practice.

Helfer & Land on the Facebook Oversight Board & Human RIghts

Laurence R. Helfer (Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts) & Molly K. Land (University of Connecticut School of Law) have posted The Facebook Oversight Board's Human Rights Future on SSRN.  Here is the abstract:

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board’s ability to hold Meta accountable or protect the rights of the platform’s users because of its narrow jurisdiction and nonexistent enforcement power. We argue that the skeptics incorrectly compare the Board to a domestic court. The central dilemmas and challenges that the Oversight Board faces—as a body of consent-based jurisdiction and constrained authority—are similar to those confronted by international human rights tribunals.

Viewing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of the Board’s structure, decision-making, and potential future trajectory. Key design features that observers have criticized are, we argue, strengths the Board can use to expand its authority over time, develop human rights norms, and influence other efforts to regulate social media platforms. In fact, when compared to human rights tribunals, the Board’s achievements are impressive. In just two years, it has issued decisions on issues ranging from hate speech to misinformation, pushed Meta to give more consideration to the context of speech, and obtained important concessions from the company regarding transparency, government take-down requests, and the impact of content moderation on marginalized communities.

This Article is the first to examine the human rights origins of the Oversight Board, its strategies for pressuring Meta to improve its content moderation policies, and how it is extending human rights norms to private social media companies. We complement this analysis with a range of recommendations for the Board to be even more effective, as well as explore possible risks and challenges, including backlash, whitewashing, and negative spillover. Our sanguine vision of the Board’s future is thus by no means assured. Nonetheless, when viewed in light of the experience of international human rights tribunals, the Board has the potential to serve as an important check on Meta and to significantly advance the promotion and protection of human rights online.

Highly recommended.

Carpenter, Mark, Shanahan, & Steinberg on State Civil Courts

Anna E. Carpenter (The University of Utah S.J. Quinney College of Law), Alyx Mark (Wesleyan University Dept. of Government; American Bar Foundation), Colleen F. Shanahan, (Columbia University - Law School), & Jessica Steinberg (George Washington University - Law School) have posted The Field of State Civil Courts (Columbia Law Review, Vol. 122, No. 5, 2022) on SSRN.  Here is the abstract:

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social needs and structural inequality and what all of this means for the present and future of American democracy.

Two key motivations drive scholarly interest in state civil courts. One motivation is generating knowledge. Historically, legal scholarship has largely ignored the most common and ordinary aspects of American civil justice in favor of studying the uncommon and the extraordinary. Thus, many of our core premises and assumptions—in civil procedure, administrative law, contracts, torts, and even constitutional law—are based on an understanding of only a sliver of formal civil justice activity. By case count, that slice is roughly two percent, the percentage of civil cases handled by federal courts each year, creating a glaring existential problem for legal scholarship. We need to know about the institutions that handle the other ninety-eight percent of civil matters to answer the most basic questions about civil law and the civil justice system, to say nothing of exploring broader social, economic, and political questions that intersect with civil courts’ work.

Thomson & Keall on Christie v. York Corporation & Racial Discrimination in Canada

Jane Thomson (University of New Brunswick, Faculty of Law) & Ashleigh Keall (University of Sussex Law School) have posted Silent All These Years: Public Policy, Expressive Harm, and the Legacy of Christie v York Corporation (J Thomson and A Keall, "Silent all these years: Public policy, expressive harm and the legacy of Christie v York Corporation" (2022) UNBLJ (Forthcoming)) on SSRN.  Here is the abstract:

In 1939 the Supreme Court of Canada released its now infamous decision in Christie v York, in which it declined to find that a Montreal tavern's "whites only" policy was contrary to public policy.

This paper reviews Christie in detail, explaining how the Court could and should have found that the discrimination at issue contravened the doctrine of public policy. It also examines each subsequent opportunity the Supreme Court has had to reverse the Christie decision, and how it has consistently failed to do so.

While human rights laws in Canada would now prohibit the treatment Fred Christie received at the York Tavern, there are areas of the private law that remain insulated from such legislation. In those areas, namely private wills, trusts, and scholarships, the doctrine of public policy is used by Canadian courts to remedy discrimination by invalidating otherwise legal operations in private law that harm the public interest.

The substantive harms of Christie have been well documented by other scholars. The primary focus of this paper is on the expressive harm caused by that decision and by the Supreme Court’s subsequent avoidance of the question of public policy’s application to discrimination in the private law. “Expressive harm” is the injury stemming from the expression of a negative or inappropriate attitude that is distinct from its subsequent, material consequences. The harm lies in the expression itself and the message it sends.

In this paper, we argue that the expressive harm from the Supreme Court’s judgment in Christie, which condoned and legitimized racist behaviour by private establishments in Canada, is rivalled by the Court’s subsequent failures to overturn that decision or to engage with the issue of discrimination and public policy at all. When faced with future cases concerning discrimination and the private law, the Court must take the opportunity to acknowledge that the discrimination faced by Fred Christie in 1937 was contrary to public policy then, just as it is today.

Ring on Innovation Policy & Climate Change

Caoimhe Ring (University of Oxford) has posted Patent Law and Climate Change: Innovation Policy for a Climate in Crisis (Harvard Journal of Law & Technology Volume 35, Number 1 Fall 2021) on SSRN.  Here is the abstract:

Meeting the Paris Agreement target of maintaining global average temperature increases well below 2.0°C requires rapid innovation in climate-friendly, or green, technologies. A substantial literature has mapped the relationship between patent law and climate change, with the concern that patents are likely to interfere with progress on climate goals, yet there is little agreement on the solutions to this problem. This Note suggests patents may be less significant for green 'invention', at its early research stages, but that patents may still be important for green 'innovation'—encouraging the commercialization and diffusion of mature energy technologies.The main contribution of this Note is the contention that patents may have a thus-far under-examined role in promoting green innovation at the commercialization stage of innovation. Despite these intuitions, there has been inadequate investigation of entrepreneurial patenting practices from a theoretical or empirical standpoint. This is problematic as a matter of present knowledge, but it also risks neglecting a key component of the patent system as it affects green innovation. Commercialization and diffusion, it appears, have escaped attention owing to a failure to take stock of the broader innovation context. To remedy these issues, this Note draws on the innovation system literature, which may provide a useful framework to analyze patent law in the context of a variety of innovation incentive mechanisms which seek to respond to the innovation policy challenge posed by climate change.

Dolovich on Prison Law

Sharon Dolovich (University of California, Los Angeles - School of Law) has posted The Coherence of Prison Law (135 Harv. L. Rev. F 302) on SSRN.  Here is the abstract:

In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state. In terms of doctrine, I show that, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers to construct doctrinal standards for prison law cases that strongly incline courts to rule for defendants. Yet skewed doctrinal standards alone cannot explain prison law’s strong pro-state bent, since courts hearing prison law cases will often side with defendants even when plaintiffs’ claims are strong on the merits and even when defendants’ arguments strain credulity. To achieve this effect also requires a judicial readiness to see the state’s case through an especially sympathetic lens and to exhibit a studied indifference to plaintiffs’ constitutional rights and lived experience. As I show, the Court’s prison law opinions persistently exhibit this orientation, which I term dispositional favoritism. When federal courts hearing prison cases follow this lead, as they frequently do, they can wind up favoring defendant prison officials in any number of ways hard to square with either the record or the relevant legal rules. These dynamics, hidden in plain sight, had been present in the prison law doctrine for decades. Then came Covid-19. As this essay shows, the methods courts used to deny the COVID claims of incarcerated plaintiffs were the same that have been used for years to deflect prisoners’ constitutional claims more generally. COVID, in short, definitively confirmed the terrible coherence of prison law: it is consistently and predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated. These features collectively embody the plainly divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases.

Highly recommended.

Wolcher on Wittgenstein & Dworkin

Louis E. Wolcher (University of Washington School of Law) has posted Ronald Dworkin's Wittgenstein (Wittgenstein and Other Philosophers, edited by A. Khani & G. Kemp (Routledge), Forthcoming) on SSRN.  Here is the abstract:

Wittgenstein’s influence on the legal theory of the late Ronald Dworkin (1931-2013) is an excellent illustration of the truth of the former’s statement, “The seed I’m most likely to sow is a certain jargon.” Dworkin, one of the most prolific and important legal philosophers of his era, developed a distinctly normative theory that links the rule of law, legal rights, and legal interpretation to the claimed objective unity of legal, moral, and political values, especially in the United States. In doing so he relied directly for support on the authority of Wittgenstein’s concepts “language-games” and “form of life,” and indirectly on the latter’s anti-metaphysical insight (in Dworkin’s words) that “the key to meaning is use.” This chapter discusses both the few points of contact and the large areas of divergence between the methods and goals of these two thinkers. It does so from two opposite yet complimentary perspectives, which it calls “Dworkin’s Wittgenstein” and “Wittgenstein’s Dworkin.” It concludes that Wittgenstein would not have recognized Dworkin’s writings as philosophy but would (perhaps) have respected them as expressions of a secular kind of religious faith – a Religion Without God as the title of Dworkin’s last book would have it.