Legal Theory Blog

Legal Theory Bookworm: "The Redress of Law" by Christodoulidis

The Legal Theory Bookworm recommends The Redress of Law by Emilios Christodoulidis.  Here is a description:

From a legal-philosophical point of view, The Redress of Law presents a critical analysis of a number of related doctrinal fields: constitutional, labour and EU Law. Focusing on the organisation and protection of work, this book asks what it means to protect work as an essential aspect of human (individual and collective) flourishing. This is an ambitious and highly sophisticated intervention in contemporary academic and political debates around a set of critically important questions connected to processes of globalisation and market integration. The author redefines the nature of legal and political thought in an age in which market rationality has exceeded its classic domain and has come to pervade the organization of social and political life. This restatement of critical legal theory is intended to defend the concept of constitutionalism and suggest new ways to deploy the law strategically.

Download of the Week: "Establishment's Political Priority to Free Exercise" by DeGirolami

The Download of the Week is Establishment's Political Priority to Free Exercise by Marc O. DeGirolami.  Here is the abstract:

American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Highly recommended.

Bressman & Stack on Chevron

Lisa Schultz Bressman (Vanderbilt University - Law School) & Kevin M. Stack (Vanderbilt University - Law School) have posted Chevron Is a Phoenix (Vanderbilt Law Review, Vol. 74, No. 2, 2021) on SSRN.  Here is the abstract:

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the Court gave judicial deference a particular articulation and set of express justifications that made the principle seem new and bold—and ultimately set it on a path to become convoluted and vulnerable. But judicial deference is no less a foundational principle because Chevron took on a life of its own. And foundational principles—particularly those that help to maintain balance among the branches—do not simply go away. They change and reappear in the law. The Court can try to kill Chevron, but judicial deference will find its way back to administrative law.

For a different perspective that recognizes the fundamental importance of the interpretation-construction distinction, see Lawrence B. Solum (University of Virginia School of Law) & Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)), Chevron as Construction (Cornell Law Review, Vol. 105, No. 1465, 2020) & Lawrence B. Solum, Disaggregating Chevron, 82 Ohio State Law Journal 249 (2021).

Webb on Stories of Violence, Race, and Injustice

Lindsey Webb (University of Denver Sturm College of Law) has posted True Crime and Danger Narratives: Reflections on Stories of Violence, Race and (In)justice (24 J. Gender Race & Just. 131 (2021)) on SSRN.  Here is the abstract:

In the United States, white people have long told both overt and veiled narratives of the purported danger and criminality of people of color. Sometimes known as ‘danger narratives,’ these gruesome accounts often depict the kidnapping, assault, and murder of white women at the hands of men of color. These narratives have been used to promote and justify enslavement, lynching, mass incarceration, and a host of other methods and institutions of white supremacy and racial control.

While white people have been creating and consuming danger narratives, they have also been telling other stories about crime. Like danger narratives, these stories, known as ‘true crime,’ have existed for centuries, purport to be based on actual criminal acts, and largely focus on violence against white women. Like danger narratives, true crime stories are intended to invoke feelings of horror and shock among their audiences and suggest specific methods--arrest, incarceration, or death of the perpetrator--by which social order may be restored. Unlike danger narratives, however, true crime stories focus almost exclusively on white-on-white crime.

Scholars and others often characterize danger narratives as violence-focused stories with explicit racial and racist intent and outcomes, while true crime is generally treated in the media as entertainment, in which crime and punishment are explored largely as if people of color do not exist. This Article challenges this disparate treatment, arguing that true crime narratives serve to justify and support institutions of racial control while claiming racial impartiality. The study of these stories may nevertheless contribute to abolitionist and anti-racist revisioning of our criminal system, as the focus on justice in true crime narratives can inform and inspire alternative visions of justice which are in service to racial equity rather than in support of racial subjugation.

Clark, Conrad, cummings, & Johnson on Brutal Policing & Childhood Trauma

Todd Clark (St. Thomas University School of Law), Caleb Gregory Conrad (University of Arkansas at Little Rock - William H. Bowen School of Law), andré douglas pond cummings (University of Arkansas at Little Rock - William H. Bowen School of Law), & Amy Dunn Johnson (15th Division, 6th Judicial District of Arkansas) have posted Meek Mill's Trauma: Brutal Policing as an Adverse Childhood Experience (33 St. Thomas L. Rev. 158 (2021)) on SSRN.  Here is the abstract:

Meek Mill’s life and career have been punctuated by trauma, from his childhood lived on the streets of Philadelphia, through his rise to fame and eventual arrival as one of hip hop’s household names. his 2018 track "Trauma," Meek Mill describes, in revealing prose, just how the traumatic experiences he endured personally impacted and harmed him. He also embodies a role as narrator in describing the same traumas and harms that impact the daily lives of countless similarly situated young Black people in the United States. As a child, Mill’s lived experience was one of pervasive poverty and fear, as the world surrounding him consisted of large-scale poverty, addiction, crime, violence, and death. As a young man—at just 19 years of age—he was beaten by police, wrongfully arrested and incarcerated, and ultimately convicted of crimes that he did not commit, becoming another statistic as a young Black man swallowed by the American criminal justice system. Meek’s story, lyrics and contributions to hip hop illuminate the Black experience with law enforcement. His personal involvements provide a powerful narrative for exactly how a racially biased criminal justice system perpetrates a trauma that extends far greater than the law has traditionally recognized. This article highlights this narrative through the lens that Meek Mill provides because of his current prominence in hip hop and the importance of his narrative claims. Despite his success in achieving the status of a true hip hop icon, Meek Mill suffered the kind of childhood adversity and trauma that emerging health care research indicates leads to debilitating health outcomes in adulthood.

Powerful health studies conducted over the past two decades have uncovered the startling impact of Adverse Childhood Experiences (“ACEs”). ACEs are traumatic events that occur in childhood, ranging from abuse and neglect to other traumatic experiences derived from household and community dysfunction. Today, ACEs are generally placed by health researchers into seven to ten categories of childhood adversities ranging from sexual, physical and emotional abuse to the incarceration of a family member, living with someone who abuses alcohol or drugs and poverty, community violence and homelessness. These identified categories of trauma, although not fully understood or grasped as late as the 1990s, were known to occur in the lives of children all over the United States; however, the overall impact of childhood trauma on an individual’s long term health outcomes was only first measured in the now famous CDC-Kaiser Permanente ACE study. The findings of this study shook the health care world, forever altering the understanding of the link between childhood trauma and adult health outcomes. These links pushed researchers to look more deeply into the ultimate impact of traumatic childhood experiences on overall adult health. The groundbreaking study concluded that the more trauma a child experiences, the fewer years that child would live as an adult. In fact, in a 2009 study, CDC researchers determined that exposure to childhood trauma literally shortens an individual’s lifespan. On average, a person with six or more ACEs died twenty years earlier than a person that had experienced no Adverse Childhood Experiences.

This reality, that traumatic childhood experiences are directly and inextricably linked to negative health outcomes, is now widely recognized in the public health and clinical literature. Dr. Robert Block, former President of the American Academy of Pediatrics, has warned that “[a]dverse childhood experiences are the single greatest unaddressed public health threat facing our nation today.” More recently, this literature has begun to explore the connection between trauma and race, outlining how structural violence and historical trauma—particularly violence and discrimination experienced by Black, indigenous, and persons of color—is often experienced both at the individual and community levels. Such work has focused on improving economic opportunities for trauma- stricken communities, improving the physical/built environment, and supporting the development of healthy social-cultural environments. The prevailing framework for addressing the ACEs crisis has been a medical model focused on interventions for individual survivors and communities rather than addressing the glaring systemic issues that directly contribute to the vast majority of the trauma suffered by those communities and the individuals and families that inhabit them. Largely and undeniably absent from the body of work on childhood trauma, and the proposed solutions to confronting and rectifying its deadly impact, is the exploration of how the American legal and justice systems, from municipal law enforcement to the appellate courts, stands at the epicenter of the current crisis.

Each of the recognized categories of ACEs listed in medical screening instruments used by physicians to identity trauma have a direct nexus to the justice system. If we as a society are committed to treating ACEs as the public health crisis that they are, it is incumbent upon us to examine where and how our legal system is complicit in perpetuating trauma upon minority children. In addition, we need to consider how it can intervene—both at the individual and structural levels—to eliminate practices that contribute to multi-generational cycles of trauma and work to equip those with justice-system involvement to succeed and build the resilience necessary to heal minority individuals and communities who have been stricken by trauma and its life-long negative consequences. Indeed it is the responsibility of our justice system, as a major contributor to so-called “social determinants of health.”

Meek Mill, in his intimate autobiographical tracks of "Trauma," "Oodles O’Noodles Babies," and "Otherside of America," describes experiencing not just several instances of childhood trauma as identified by the CDC-Kaiser Permanente study, but as a teenager, he suffered additional cruel trauma at the hands of U.S. police and a criminal justice system that wrongly imprisoned and unfairly positioned him in a revolving door between probation and prison. The data tells us that the trauma Meek experienced as a child and teenager statistically predicts a poorer life expectancy for him than those individuals that experienced no trauma or little trauma as a child and youth. Because of the anti-Black culture of policing in America, and because of the deep systemic racism that permeates the criminal justice system, simple exposure to U.S. policing and its courts should qualify as an Adverse Childhood Experience for Black and minority children—one that contributes to harmful adult outcomes, including a shortened life expectancy. Mill’s personal childhood trauma as described in his music carefully extrapolates the ways that American policing and the criminal justice system literally traumatized and endangered his young Black life, as it does so many Black children.

This article begins in Section I by providing an in-depth examination of ACEs research, including how the groundbreaking original ACE study discovered the direct link between high ACE scores and poor health outcomes and the prevalence of ACEs in the Black community. It then turns, in Section II, to a brief discussion of the broad ACE category of social disadvantage, and how a child growing up in an environment built on a foundation of poverty and violence will inevitably have more trauma, more ACEs, and be harmed through his or her experience of toxic stress. Section III will provide an overview of anti-Black policing and how law enforcement, as currently constituted, traumatizes minority communities and youth. Section IV explains how criminal charging, jailing, and sentencing traditions have disproportionately targeted Black men, contributing to the trauma that their children and families experience with the loss of a loved one to death or incarceration. The article next argues that minority youth exposure to U.S. law enforcement agents and the justice system at large functions as an ACE for youth of color in a way that is simply not present for non-minority youth and, as such, should be added to the list of ACEs that are formally recognized by public health officials. Finally, the article concludes with how Meek Mill himself is seeking to reform a system rife with debilitating trauma. Throughout each section, Meek Mill, and the raw lyrics from some of his most personal tracks, will serve as an illustration, and example, of how social disadvantage, police misconduct and brutality, and the American criminal justice system at large, cause harmful and lifelong trauma for Black Americans.

Miller on Equilibrium Adjustment Theory & the Second Amendment

Darrell A. H. Miller (Duke University School of Law) has posted Second Amendment Equilibria (Northwestern University Law Review, Vol. 116, No. 1, 2021) on SSRN.  Here is the abstract:

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although this Essay recognizes factors that make Second Amendment equilibrium-adjustment distinctive and challenging, the theory may nonetheless allow courts and scholars to get some purchase on the problem of change in Second Amendment adjudication and provide a vocabulary to explain the objectives of the emerging doctrine for the right to keep and bear arms.

Maurer on War Crime Clemency

Daniel D. Maurer (Dept of Law, United States Military Academy at West Point) has posted War Crime Clemency: The President's Self-Defeating Pardon on SSRN.  Here is the abstract:

A president’s long-recognized discretion to pardon just about any offense for literally any reason at almost any time leaves little room to argue that such power can be constrained any further by law. Supreme Court decisions, scholarship, and presidential precedent over the last two centuries amply (though grudgingly) support a theory of nearly unilateral and “unfettered” authority, perhaps a last vestige of the British monarchy left in the hands of a democratically accountable chief executive – controversial, but nevertheless constitutional. But when it comes to a specific class of misconduct – war crimes – interpreting and applying this constitutional power requires a second look, for it invariably intersects with another Article II power – a president’s role and authority as the military’s commander-in-chief. Rather than amplifying this other long-recognized discretionary power to wage war, the pardon power arguably weakens it under certain conditions. This intersection is not merely an academic puzzle on the nature of presidential power; it is a collision of a president’s right with a series of quite specific presidential responsibilities and authorities over the military’s criminal justice system he has only because Congress believes that a commander-in-chief should wield them. The collateral damage from this collision ironically harms the very institution and profession the president relies on for military action, advice, and ability. Whether this damage is historically contingent on particular presidents or is a predictable consequence of all such pardons is a question that cannot be answered yet.

That is because President Trump’s three war crime pardons in 2019 were historic firsts: never before had a president pardoned any soldier for conduct incidental to combat action that violently victimized a non-combatant who was otherwise protected by the international laws of war from unlawful armed force. They were a proof of concept that a president could indeed “go there;” but they were also a proof of consequences not yet fully explored in the literature and not at all by the courts. In exercising his singular strength by pardoning war crimes, a president’s power and credibility is paradoxically weakened for three reasons: he ignores or rejects the duties imposed on the very institution he relies on to achieve political objectives through armed force; he devalues the professional expertise of his military agents; and he delegitimizes the military criminal justice system that this institution relies on to promote, enforce, and signal its professional commitments to certain martial values, norms, and requirements – including adhering to the laws of war. Flexing muscle on one arm atrophies muscle on the other. The contrary view is that constitutionally required civilian control of the armed forces means his discretion to flex or atrophy his credibility with the military whenever he wants.

Trump’s war crime pardons offer an opportunity to explore whether common arguments and conventional applications of the pardon power are entirely relevant to this class of offenses and this kind of offender. This article suggests, because they lead to a self-defeating paradox (the collision between two independent and stout express Article II powers), that they are categorically distinct; it sketches this new prudential argument for curtailing war crime pardons based on a president’s “standing” or relationship he necessarily bears to the military as its commander-in-chief and to the conduct he absolves. Any future case for judicially invalidating such a pardon, for legislating a containment strategy to (at least) deter such a pardon, or for adopting a set of principles for presidential self-restraint, must account for this challenge.

Wasserman on "Our Kardashian Court (And How to Fix It)" by Sherry

Howard Wasserman (Florida International University (FIU) - College of Law) has posted A Court with No Names: Anonymity and Celebrity on the “Kardashian Court” (106 Iowa L. Rev. Online 47 (2021)) on SSRN.  Here is the abstract:

In "Our Kardashian Court (And How to Fix It)," Suzanna Sherry argues that the solution to the problem of judicial celebrity is to require the Supreme Court to issue one per curiam opinion with no separate concurrences or dissents and no vote counts. This Response explores issues, problems, and opportunities raised by her creative plan--including some things lost and gained, why it may be too late to make this change, how to expand the plan to lower courts, and how to combine it with other court-reform proposals.

Recommended.

Maggen on Legalistic Filter Bubbles & Nonconsensual Pornography

Daniel Maggen (Yale University, Law School) has posted Law In, law Out: Legalistic Filter Bubbles and the Algorithmic Prevention of Nonconsensual Pornography (Cardozo Law Review, Vol. 43, 2022) on SSRN.  Here is the abstract:

In 2019, Facebook announced that it has begun using machine learning algorithms to preemptively screen uploads for nonconsensual pornography. Although the use of screening algorithms has become commonplace, this seemingly minor move from reactive to preemptive, legal analysis–based prevention—this Article argues—is part of a groundbreaking shift in the meaning and effect of algorithmic screening, with potentially far-reaching implications for legal discourse and development.

To flush out the meaning of this shift, the Article draws on the filter bubble theory. Thus far, the phenomenon of filter bubbles has been synonymous with personalized filtering and the social polarization and radicalization it is prone to producing. Generalizing on this idea, the Article suggests that the control filtering algorithms have over the information brought before users can shape users’ worldviews in accordance with the algorithm’s measure of relevance. Algorithmic filtering produces this effect by enhancing users’ trust in the applicability of the measure of relevance and “invisibly hiding” any information that conflicts with it. The Article argues that in the case of filtering algorithms that use a legal classification as their measure of relevance, the result is a legalistic filter bubble that can essentialize dominant legal paradigms and suppress information that challenges their usefulness and decency. These effects, the Article suggests, can significantly impede legal evolution as they drive a wedge between adjudication and the greater normative universe it inhabits.

In the case of filtering algorithms that use the legal category of nonconsent as their measure of relevance, the emergence of a filter bubble will effectively cement nonconsent as the gravamen of violative distribution and insulate decision-makers from exposure to consensual harms. Although the Article does not suggest that we ban consensual but harmful distribution of sexual materials, it argues that the emergence of a filter bubble can hinder the development of a vibrant normative debate on the meaning of sexual autonomy.

Interesting and recommended.

Smith on Sachs on Originalism & Standards

Michael L. Smith has posted Originalism and the Inseparability of Decision Procedures from Interpretive Standards on SSRN.  Here is the abstract:

In his forthcoming article, Originalism: Standard and Procedure, Stephen Sachs describes an unending debate between advocates of originalism and their critics. Originalists argue that certain historic facts play a role in determining the meaning of constitutional provisions. Critics respond that making determinations about these facts is difficult, if not impossible for judges, attorneys, and the general public. Sachs seeks to rise above this debate, arguing that originalism should not be treated as a procedure for interpreting the constitution, but instead as a standard by which interpretations may be judged. Even if originalism does not set forth a set of rules for its implementation, it is still of use to the extent that it provides an account of what interpretations are correct or mistaken, and may point interpreters toward “rules of thumb” for interpreting the Constitution.

This Article takes issue with this approach. First, Sachs argues that treating originalism as a standard, rather than a procedure, effectively avoids critiques over difficulties of implementing originalism. But whether originalism can be implemented remains an important consideration when choosing between standards of interpretation. If a standard typically cannot be implemented that standard is less preferable to an alternate standard of interpretation that is easier to implement. Second, the move to a focus on standards further alienates discussions that are already technical and theoretical from the practical realities that judges, attorneys, and the general public face. Even if treating originalism as a standard avoids implementation critiques, theorizing about originalism at this level is even less useful for actors in the real world.

Originalism is not like other instances in law where statutes or opinions refer to other opinions, statutes, or third-party publications. Instead, originalism requires rigorous and complex analysis of historic facts to determine the original public meaning of constitutional provisions—an undertaking that most judges, attorneys, members of the public, and even legal academics may find challenging. Treating originalism as a standard does not avoid this concern—and even if it did, these issues should be confronted, rather than evaded.

Ó hAdhmaill on Former Political Prisoners in Northern Ireland

Féilim Ó hAdhmaill (University College Cork) has posted Equal Citizenship for a New Society on SSRN.  Here is the abstract:

In the aftermath of the Good Friday/Belfast Agreement in 1998 and as part of the Irish Peace Process political prisoners were released back into their communities. This report looks at the experience of republican ex-prisoners in the new dispensation and in particular the obstacles they face in accessing services and employments. The research is based on both quantitative and qualitative methods involving republican ex-prisoners in Belfast. It shows that whilst they are generally respected in nationalist communities, often looked to for leadership with many being elected to political office, they continue to face obstacles and discrimination when it comes to acquiring employment, education and training outside their communities or accessing public and private services.

Wallace on the Moral Rights of Corporations

Duncan Wallace (Monash Law School) has posted Like Frankenstein’s Creature, Corporations Have Been Misunderstood on SSRN.  Here is the abstract:

A corporation may have legal rights, but that does not mean it has moral rights underneath'. That, at least, as I discuss in this talk, is one understanding of corporate rights – an understanding that is today widespread, especially amongst progressives. That is not the only understanding of corporate rights available to us, however. There is another. This alternative understanding, which I explore, holds, instead, that a corporation does have underlying moral rights. Further, it holds that these underlying moral rights are what a corporation’s legal rights ought, in fact, to be based upon. Using this alternative understanding of the corporation, I discuss investor-owned public companies. I demonstrate, on the basis of this alternative understanding, that the underlying moral rights of public companies are ignored under law today. I argue that public companies, in fact, are treated as slaves. I finish by commenting on the negative consequences of corporate enslavement for the environment.

This is the text of a talk given at the 2021 inaugural Environmental Law Doctoral Researchers’ Workshop, hosted by Melbourne Law School’s Centre for Resources, Energy and Environmental Law and UNSW Sydney Faculty of Law & Justice.

Ruben on Guns, Other Weapons, & the Second Amendment

Eric Ruben (SMU Dedman School of Law) has posted Law of the Gun: Unrepresentative Cases and Distorted Doctrine (Iowa Law Review, Forthcoming) on SSRN.  Here is the abstract:

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation.

This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia v. Heller constitutionalized a policy area far broader than most appreciate, one that involves not only guns but various other weapons. The Article then shows how litigation fails to reflect that breadth. Guns are just one category of “arms” that most Americans choose not to own or carry for self-defense, but guns alone saturate Second Amendment case law. Non-gun arms are out of view when judges establish and apply Second Amendment doctrine. The Article contends that this gun-centricity, by obscuring the ways Americans exercise Second Amendment rights, has led judges to exaggerate burdens, misread history, and espouse short-sighted doctrine to implement the right to keep and bear arms. More generally, the Second Amendment case study in this Article exposes litigation circumstances that create a heightened risk of such distortion and proposes possible solutions.

Lloyd on Replacing the Canons with Queries

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Recasting Canons of Interpretation and Construction into "Canonical" Queries on SSRN.  Here is the abstract:

This Article advocates recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes).

As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time.

Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction.

Schmidt on Judicial Minimalism in the Lower Courts

Thomas P. Schmidt (Columbia University - Law School) has posted Judicial Minimalism in the Lower Courts (Virginia Law Review, Forthcoming) on SSRN.  Here is the abstract:

Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and is defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, where the vast bulk of Article III adjudication takes place. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which counsels judges to avail themselves of various techniques of not deciding cases (the so-called “passive virtues”) on grounds of prudence; and Thayerian minimalism, which counsels judges to refrain from invalidating the actions of the political branches except in cases of clear illegality. The Article then argues that several institutional features of lower courts make judicial minimalism a particularly compelling ideal for lower court judges. At the same time, some of those same institutional features make minimalism difficult to attain on a consistent and system-wide basis. Further, attending to the differences between the lower courts and the Supreme Court reveals that minimalism is in tension with the institutional logic of the Supreme Court. In all, the Article aims both to clarify judicial minimalism and to place it in its proper institutional home. After making the case for lower court minimalism, the Article proposes strategies for realizing it: First, developing a concept of judicial role fidelity that is tailored to the institutional realities of lower courts, and second, reforming case assignment rules, nationwide injunctions, and the size of the federal bench to help channel lower courts toward more minimalist outcomes.

Highly recommended.  Download it while it's hot!

DeGirolami on Religious Exemptions & the Dismantling of Civil Religion

Marc O. DeGirolami (St. John's University - School of Law) has posted Establishment's Political Priority to Free Exercise (Notre Dame Law Review, forthcoming) on SSRN.  Here is the abstract:

American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Highly recommended.

Hishon on Bereavement Leave in Ontario

Riel Hishon (York University - Osgoode Hall Law School) has posted Grieving Should Not Be a Privilege: Recommended Changes to Bereavement Leave in Ontario on SSRN.  Here is the abstract:

This paper examines legislation and government policy regarding bereavement leave. The aim of this paper is to compare Ontario’s current bereavement leave policies to those in other jurisdictions, and provide recommendations on how Ontario’s policies can be improved. Recommendations provided include: 1) expand the definition of who the employee can take bereavement leave for (on the occasion of their death); 2) increase the total number of days of bereavement leave offered to five days; 3) require that one of the five days of leave be paid if the death is of an immediate family member; 4) remove the requirement that a person have been an employee for two consecutive weeks prior to taking bereavement leave; and 5) mirror Quebec’s categories of extended leave. Bereavement leave is critical to the mental health of those who have experienced a loss and these changes will improve the mental health of workers and contribute to the de-stigmatization of grief. Grieving should not be a privilege reserved for those who have enough savings and vacation days to afford it.

Schearer on Freedom of the Press in Civil War Maryland

Michael Schearer (Liberty University, Department of History) has posted The Lincoln Administration and Freedom of the Press in Civil War Maryland on SSRN.  Here is the abstract:

Across all of American history, the accumulation of state power during times of war and national emergency has been the most destructive threat to freedom of the press. Clashes between the government and the press have occurred as early as the Quasi-War with France and recently as the War on Terror. Freedom of the press came under sustained assault during World War I and again during the Vietnam War. But perhaps the most outrageous violations of freedom of the press came during the Civil War.

Although suppression of freedom of the press by the Lincoln Administration took place across a broad swath of the Union, the battle between government and press was particularly acute in border states because of their slave populations and secessionist sentiments. In particular, Maryland presented a complex challenge to President Lincoln during the Civil War. The people of the slaveholding state were sympathetic to the South, but its economy was becoming increasingly integrated with the industrial North. Most importantly, Maryland's strategic location placed it on three sides of Washington, D.C.; and its secession would leave the national capital completely surrounded by the Confederacy.

Deciding that the loss of the capital would be intolerable to the war effort, the Lincoln administration suspended the writ of habeas corpus as part of a larger, deliberate campaign to keep Maryland in the Union. The suspension was the foundation upon which the administration suppressed freedom of the press in Maryland. This strategy involved imprisonment without trial of journalists and publishers, seizing their property, deportation beyond the Federal lines, shuttering of their newspapers, and barring their publications from using the mails. These events represented among the most egregious violations of civil liberties in American history.

Kalanic, Gutierrez, & Marchant on Products Liability & AI Soft Law

Joshua D. Kalanic (Arizona State University (ASU), Sandra Day O'Connor College of Law, Students), Carlos Ignacio Gutierrez (Arizona State University (ASU) - Sandra Day O'Connor College of Law), & Gary E. Marchant (Arizona State University - College of Law) have posted AI Soft Law and the Mitigation of Product Liability Risk on SSRN.  Here is the abstract:

Artificial intelligence systems present various types of risks, but are generally not subject to comprehensive government regulation at this time. Soft law measures such as private standards have been developed to fill this governance gap, but a major limitation of such standards is that they are not directly enforceable, and so many companies may not comply with them. This article examines the thesis that compliance with soft law standards may provide some protection from product liability, thus providing additional incentive for companies to adopt and comply with such standards. Using U.S. case law as the focus of analysis, compliance with private standards does not provide an absolute shield against liability, but can provide persuasive evidence of due care that can diminish liability risks in most U.S. state jurisdictions. Conversely, while failure to abide by soft law standards does not automatically result in liability, it can provide probative evidence that a company has not exercised due care, and thus should be held liable. Moreover, compliance with soft law standards can provide an effective defense against punitive damages in many States if a company’s AI system does harm people or property and is held liable for compensating such damages. These findings suggest that protecting against such liability provides a powerful incentive for companies to comply with soft law standards.

Godfrey on Group Protest by Prisoners

Nicole B. Godfrey (University of Denver Sturm College of Law) has posted 'Inciting a Riot': Silent Sentinels, Group Protests, and the Importance of Protecting Prisoners' Petition and Associational Rights (Seattle University Law Review, Vol. 43, No. 4, 2020) on SSRN.  Here is the abstract:

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article proceeds in three parts. First, Part I provides the historical background necessary to understand the utility of the Silent Sentinels as an example demonstrating the importance of protecting the rights to petition and association for the disenfranchised. From there, Part II provides an overview of the doctrinal law associated with prisoners’ rights to petition and associate. Part II also discusses the deference to prison officials inherent to First Amendment doctrine as applied to prisoners. Finally, Part III examines how the activities of the Silent Sentinels amount to what almost all prison systems call “inciting a riot” under modern prison regulations and argues that such a result is inconsistent with the purpose and values of the First Amendment. Part III concludes by cataloguing examples of modern prison protest and calling for more robust protections for such protest.

Brown on Mental States & Negligence Law

Teneille R. Brown (University of Utah - S.J. Quinney College of Law) has posted Minding Accidents on SSRN.  Here is the abstract:

This article is about a fascinating, unexplored paradox in negligence doctrine. Respected treatises and textbooks tell us that proving breach does not require knowing anything about the defendant’s mental states. Deciding whether the defendant's conduct was objectively unreasonable should be based solely on his external, observable conduct. This distinguishes civil negligence from the more moralistic criminal law, by avoiding the messiness of mens rea inferences. At the same time, most jurisdictions have incorporated the “reasonable foreseeability” test for duty, breach, and proximate cause—a test that I will demonstrate requires interrogating what the defendant subjectively knew, perceived, and imagined. This creates a confusing form of doublespeak, where mental state inferences exist everywhere while not being explicitly allowed anywhere.

I submit that foresight is considered a “malleable standard” and “vexing morass” precisely because of this doublespeak. We have failed to recognize that foresight is an epistemic, mental state. Its evaluation by jurors therefore occurs in the shadows of the law, without any judicial instruction or guidance. Once we appreciate that foresight is an epistemic state, we can see how it maps directly on to the psychological construct of “episodic foresight,” a process which has been rigorously studied. Relying on this established literature, I deconstruct the psychological components of foresight to imbue the legal concept with greater precision and validity.

My analysis reveals a few key things. First, when outcomes are bad, assessments of foresight are notoriously inflated, often in counterintuitive ways. Second, foresight always depends on the defendant's idiosyncratic mental states and values (such as the avoidance of guilt, semantic knowledge, or prioritizing short-term gains), which often cannot be labeled objectively unreasonable or reasonable. Finally, on average, healthy adults are terrible at anticipating and predicting the future. Because jurors are not instructed on the necessary components of foresight, and how fallible each of them is, they likely fail to calibrate “reasonable foreseeability” to a norm of poor performance.

Highly recommended.

Gebru on Fashion Design Copying & the Rationale for IP

Aman Gebru (Duquesne University School of Law) has posted The Piracy Paradox and Indigenous Fashion (Cardozo Arts & Entertainment Law Journal, Vol. 39, No. 2, 2021) on SSRN.  Here is the abstract:

The conventional justification of intellectual property laws is that recognizing exclusive rights is indispensable for encouraging creativity. The Piracy Paradox challenged this assumption by providing strong evidence of the fashion industry’s robust creativity in the face of widespread copying of designs, thereby suggesting that some types of creativity may not need exclusive rights. This Article examines the applicability of the piracy paradox in the context of non-Western cultures. It categorizes indigenous fashion as those open to commercialization and those closed to it. With some important caveats, this Article suggests the piracy paradox may apply to indigenous fashion that is open to commercialization. However, tolerance of unauthorized copying, which is at the core of the piracy paradox thesis, does not seem to exist in the case of sacred or restricted indigenous fashion. Instead of resulting in more creativity, unauthorized copying of indigenous fashion has created the hot-button issue of cultural appropriation and a relationship of mistrust between source communities and mainstream designers. This Article concludes by suggesting that recognizing enforceable cultural rights, creating professional ethical principles, and implementing corporate social responsibility standards can serve as mechanisms of creating a harmonious relationship between indigenous communities and mainstream fashion designers.

Moraru on the EU Right to Asylum

Madalina Moraru (Centre for Judicial Cooperation (RSCAS); Masaryk University - Faculty of Law) has posted The EU Fundamental Right to Asylum: In Search of its Legal Meaning and Effects (Iglesias Sánchez and González Pascual(eds), Fundamental Rights in the EU Area of Freedom, Security and Justice (Cambridge University Press 2021)) on SSRN.  Here is the abstract:

This chapter analyses the scope, content and justiciability of the EU fundamental right to asylum, as laid down in Article 18 of the EU Charter of Fundamental Rights, as these are still open questions. In addressing these questions, the chapter will begin by analysing the scope of application of the EU fundamental right to asylum as interpreted by the CJEU. It will then turn to the content of the EU fundamental right to asylum. To this end, it will first consider the case law of the CJEU and domestic courts interpreting Article 18 and then additional legal sources, focusing in particular on the principle of non-refoulement enshrined in the Refugee Convention and the rights to asylum provided for in the EU Treaties and domestic constitutions. In conclusion, the author shows that the legal meaning of the right to asylum and its effectiveness have been clarified and enhanced by national courts rather than the CJEU, although the CJEU’s contribution has been essential in enhancing procedural safeguards concerning the EU fundamental right to asylum.

Hammer on "Fulfillment" by MacGillis & "Amazon Unbound" by Stone

Josh Hammer (Edmund Burke Foundation; Newsweek) has posted How Do You Solve a Problem Like Amazon? (American Affairs Journal) on SSRN.  Here is the abstract:

Jeff Bezos' Amazon is the sine qua non of the Digital Age. But the company is also deeply problematic, insofar as the immense clout and monopolistic influence it wields over an otherwise-sovereign citizenry.

This essay, partially a book review of two recent books about Amazon and Bezos, also considers what legal tools we should consider to rein in Amazon and its fellow Big Tech oligarchs. An atrophying citizenry awaits whether our elected officials will wake up and break up Amazon before it is too late.

Vollmer on SEC Authority to Adopt Climate-Change Disclosure Rules

Andrew N. Vollmer (Mercatus Center at George Mason University) has posted Does the SEC Have Legal Authority to Adopt Climate-Change Disclosure Rules? on SSRN.  Here is the abstract:

The Securities and Exchange Commission is planning to propose new mandatory disclosure rules on climate change without further statutory authority from Congress. The purpose of this comment is to explain that the SEC does not currently have statutory authority to adopt such disclosure rules.

When evaluated against the Supreme Court’s normal and straightforward method of determining an agency’s rulemaking power, the two main securities acts limit the SEC’s power to issue disclosure rules to specific types of information, such as the business of the company selling the securities, the management, capital structure, and financial statements. Climate-change disclosure rules would have a different subject matter and a different objective from the kind of disclosure requirements Congress permitted the SEC to write.

The need for the SEC to have explicit statutory power for climate-change disclosure rules is important to the U.S. form of self-government and the accountability of government officials to the voters. The SEC should respect the role of Congress in setting national policy and stay within the bounds of its statutory authority.

This paper was written in anticipation of the SEC, as a full commission, voting to request public comment on a climate-change disclosure proposal. It will be adapted as a comment and will be filed with the SEC shortly after that.

Grad & Turnbull on COVID-19 & Harmful Speech

Kenneth Grad (York University, Osgoode Hall Law School) & Amanda Turnbull (York University, Osgoode Hall Law School; Ethics, Law & Society, Trinity College, University of Toronto) have posted Harmful Speech and the COVID-19 Penumbra (Canadian Journal of Law and Technology, Vol. 19, No. 1, July 2021) on SSRN.  Here is the abstract:

There has been a disturbing rise in harmful speech during COVID-19. Many have been shocked by the deluge of malign information, which has disseminated widely and rapidly on account of technological advancement, globalization, and digital interconnectivity. But we should not have been surprised. The historical record reveals that pandemics inevitably lead to an increase in false information and hate speech. This paper makes two central claims. First, the themes of disinformation have remained remarkably consistent across pandemics. We illustrate this through an examination of harmful speech that has spread during three prior pandemics and the current pandemic. COVID-19 is unique only in the ease with which disinformation has spread, amplified, and reverberated over the internet. Second, we argue that COVID-19 presents a unique and valuable opportunity to tackle online disinformation. We highlight three promising avenues for combating harmful online speech that have emerged during COVID-19 and suggest avenues for further inquiry. In so doing, we seek to inspire a discourse of resilience. Technology presents both the problem and the solution; through emphasis on effective measures at combating online harms, we can heed the lessons of the past and provide for a better future and a safer online environment.

Harpaz on Tax Policy & COVID-19

Assaf Harpaz (Duke University, School of Law) has posted Tax Policy and COVID-19: An Argument for Targeted Crisis Relief (Cornell Journal of Law and Public Policy, Forthcoming) on SSRN.  Here is the abstract:

The COVID-19 pandemic caused a sharp global economic decline. The U.S. government responded to the downturn with record fiscal legislation totaling over $5 trillion, which includes considerable tax relief. Most notably, the U.S. government distributed over $800 billion in three rounds of advanced refundable tax credits (known as recovery rebates, or stimulus checks) to most households. Tax relief has been unprecedented in scale but has often been the product of political circumstances rather than theorized conception. Tax relief thus remains largely undertheorized and politically motivated.

This Article examines the U.S. tax policy response to the COVID-19 crisis, focusing on recovery rebates for individuals. It evaluates considerations for reforming tax relief and proposes several changes for future crises. First, the Article recommends targeting credits towards low-income households. This should be accomplished by decreasing phase out thresholds and increasing credit amounts. Second, the Article recommends targeting credits towards households which lost income or whose income did not substantially increase. This should be accomplished by implementing a recapture (repayment) requirement at the end of the tax year from households whose income increased beyond the phase out threshold, subject to a safe harbor. These proposals increase vertical equity and effectiveness, allow increased aid to those who suffered the most and enhance economic stimulus. Additionally, the Article explores arguments for universal benefits and recurring payments. It thereby examines the widely publicized debate on fiscal response to COVID-19 and suggests meaningful improvements to tax policy response for future crises.

Geistfeld on Proximate Cause

Mark Geistfeld (New York University School of Law) has posted Proximate Cause Untangled (80 Md. L. Rev. 420 (2021)) on SSRN.  here is the abstract:

The many facets of tort liability are filtered through the requirement of proximate cause, which has made the element confusing and the source of considerable controversy. Is proximate cause properly determined by the directness test or the foreseeability test, each of which has been both widely adopted and roundly criticized? Is there any defensible conception of a direct cause? Is foreseeability an adequately determinate method for limiting liability? If so, is foreseeability relevant to duty, to proximate cause, or to both elements? Disagreement about all these matters stems from the failure to fully untangle the role of proximate cause across all elements of the tort claim.

In a negligence case, for example, duty determines the risks that factor into the duty to exercise reasonable care. This property implies that the duty must be limited to the risks of foreseeable harm in order for the standard of reasonable care to govern only those harms. Foreseeability for this purpose is defined by the general zones of danger or reference classes that the reasonable person would consider when estimating the likelihood of accidental harm, reducing foreseeability to a behavioral concept that is adequately determinate for resolving the issue of breach. The element of proximate cause then provides a case-specific requirement that the plaintiff’s injury must be within a general category of foreseeable harms encompassed by both the tort duty and its breach—a necessary predicate for liability. The prima facie case accordingly requires the foreseeability test to establish proximate cause for the breach of a duty that is limited to the risks of foreseeable harm.

Once liability has been established, the damages phase of the case requires a further inquiry to fix the full extent of compensable harm proximately caused by the tortious conduct. The foreseeability test produces inequities in the determination of damages that the directness test fairly resolves. This inquiry is structured by the uniformly adopted rule that permits full recovery for an unforeseeably large harm, such as a crushed skull, that was directly caused by a tortious force that would normally cause minor injury, such as a bump on the head. This rationale also explains why the intentional torts exclusively rely on the directness test, eliminating culpability as a confounding factor in the analysis of proximate cause. Because the directness test is a rule for equitably determining compensatory damages, its tort rationale does not justify the directness test for proximate cause in criminal cases, contrary to a widely adopted assumption. Instead of being competing formulations, the directness and foreseeability tests each address different components of a tort claim, explaining why each one is both widely adopted and yet roundly criticized when employed as the only method for determining proximate cause.

Recommended.

Goldman & Miers on Online Account Termination & Content Removal

Eric Goldman (Santa Clara University - School of Law) & Jess Miers (Santa Clara University - School of Law) have posted Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules (1 Journal of Free Speech Law 191 (2021)) on SSRN.  Here is the abstract:

This article reviews a dataset of U.S. judicial opinions involving Internet services’ user account terminations and content removals. The Internet services have prevailed in these lawsuits, which confirms their legal freedom to enforce their private editorial policies (“house rules”). Numerous regulators have proposed changing the legal status quo and restricting that editorial freedom. Instead of promoting free speech, that legal revision would counterproductively reduce the number of voices who get to speak online. As a result, laws imposing “must-carry” requirements on Internet services will exacerbate the problem they purport to solve.

Recommended.

Legal Theory Lexicon: Public and Private Goods

Introduction

One of the most powerful ideas that legal theory borrows from economics is the idea of a "public good." Sooner or later law students learn that within the framework of contemporary neoclassical economics, the standard line is that public goods (e.g. national security) should be provided by government whereas private goods (e.g., automobiles) ought to be provided by markets. For legal theorists, the line between public and private goods tracks one of the important fault lines in the law--between the private law fields of property, contract, tort, and so forth and public law fields such as environmental law, administrative law, and constitutional law. This post provides a basic introduction to the economic distinction between public and private goods for law students (especially first year law students) with an interest in legal theory.

It may be helpful to quickly preview the basic idea. So here goes:

• Public goods have two characteristics--nonrivalrousness and nonexcludability. For example, consumption of national defense is nonrivalrous (my being protected by the U.S. armed forces doesn't diminish your protection). National defense is a nonexcludable good: the Army cannot say to Mexico, "Solum hasn't paid his national defense bill, "Go ahead and attack him."
• Private goods are rivalrous and excludable. If I own a laptop computer, my use of it diminishes your ability to use it; therefore, my consumption of the laptop rivals yours. Moreover, I can exclude you from the use of my laptop (by locking it up when I am not using it).

On the neoclassical picture, we use markets to provide goods like laptops (that are excludable and rivalrous), but government provides goods like national defense (that are nonexcludable and nonrivalrous).

A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources."

Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following:

• The phrase "public good" or "public goods" shall be used in this post to refer to the economists’ idea of goods (in the broad sense that includes both "goods" and "services") that meet the criteria of nonrivalrousness and nonexcludability.
• The phrases "public interest" or "common good" shall be used to refer to the idea of goods that benefit the public at large as distinguished from goods or interests that benefit a faction (or "special interest group").
• The phrase "public resource" shall be used to refer to private goods that are owned by the government or held in trust for the public. National parks are indisputably public resources, but it may not be the case that they are public goods in the economic sense.

We could use the phrase "public good" to refer to the public interest or to public resources, but for the purposes of this post, let's stipulate that "public good" shall be reserved for the economic sense of the phrase.

The Criteria for Public Goods

There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.)

"Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If I set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time.

"Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law.

Markets and Government

The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle.

But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should.

As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed. 

The Expanded Typology: Public, Private, Toll, and Common Pool Goods

So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two:

1. Public goods are nonrivalrous and nonexcludable.
2. Private goods are rivalrous and excludable.
3. Toll goods are nonrivalrous and excludable.
4. Common pool goods are rivalrous and nonexcludable.

Table One shows the four categories as a two-by-two matrix:

We've covered the first two categories, but we need to consider categories three and four. So let's do that now. 

Toll Goods and Intellectual Property

A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods."

One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.)

Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness.

Common Pool Goods and the "Tragedy of the Commons"

Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.) 

Club Goods

We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course.

Private Goods and the "Tragedy of the Anticommons"

And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good.

Conclusion

The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, the concepts are really very simple and straightforward.

Related Lexicon Entries

• Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks
• Legal Theory Lexicon 007: The Prisoners' Dilemma

Bibliography

• Richard Cornes & Todd Sandler, The Theory of Externalities, Public Goods, and Club Goods (1996).
• Daniel H. Cole, Graham Epstein, & Michael D. McGinnis, Digging Deeper into Hardin's Pasture: The Complex Institutional Structure of 'The Tragedy of the Commons' (2013).

Internet Resources

• Public Goods, The New Palgrave (subscription required)
• Public Good, Wikipedia
• Public Goods and Externalities by Tyler Cowen, The Concise Encyclopedia of Ecomomics
• Tragedy of the Anticommons, Wikipedia
• Christopher Yoo, Copyright and Public Good Economics (2007)

(This post was last revised on August 29, 2021.)

Legal Theory Bookworm: "Abusive Constitutional Borrowing" by Dixon & Landau

The Legal Theory Bookworm recommends Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy by by Rosalind Dixon & David Landau.  Here is a description:

Law is fast globalizing as a field, and many lawyers, judges and political leaders are engaged in a process of comparative "borrowing". But this new form of legal globalization has darksides: it is not just a source of inspiration for those seeking to strengthen and improve democratic institutions and policies. It is increasingly an inspiration - and legitimation device - for those seeking to erode democracy by stealth, under the guise of a form of faux liberal democratic cover. Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy outlines this phenomenon, how it succeeds, and what we can do to prevent it. This book address current patterns of democratic retrenchment and explores its multiple variants and technologies, considering the role of legitimating ideologies that help support different modes of abusive constitutionalism. An important contribution to both legal and political scholarship, this book will of interest to all those working in the legal and political disciplines of public law, constitutional theory, political theory, and political science.

Download of the Week: "Unoriginal Textualism" by Schauer.

The Download of the Week is Unoriginal Textualism by Frederick Schauer.  Here is the abstract:

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

Highly recommended.  Download it while it's hot!

Ribeiro on "Legality" by Shapiro

Gustavo Ribeiro (Campbell University - Norman Adrian Wiggins School of Law) has posted Is Law a Social Plan? Reconstructing Shapiro’s Legality on SSRN.  Here is the abstract:

This paper discusses Scott Shapiro’s book Legality. In this work, Shapiro presents a theory of the nature of Law, which he names “The Planning Theory of Law.” His main claim is that Law can be better understood as a social plan. The idea of plans plays both a metaphorical and descriptive role in Shapiro’s theory. His argument is not only that Law is like planning, but that Law is a social plan.

The book also offers a defense of exclusive legal positivism. Shapiro’s main argument is that the justification for the existence of plans and laws shows that both would fail to achieve their purposes if their existence and content were not defined by social facts alone. For Shapiro, both plans and laws have as justifications for their existence the creation of content-independent reasons for action. While plans are created to settle what to do next, laws are created to settle matters about morality. These similar justifications require that individuals should be able to identify plans and laws using social facts alone, for if to identify our plans or laws, we had to engage in moral reasoning concerning what we should do next (in case of plans) or what morality requires (in case of laws), both plans and laws would not fulfill their purposes.

This paper argues that Shapiro’s defense of exclusive legal positivism ultimately fails. The metaphor for social plans Shapiro created is helpful and insightful for explaining certain aspects of the legal system. However, he ultimately exaggerates the lessons one can draw from the metaphor to plans.

Tamir on Constitutional Norm Entrepreneuring

Oren Tamir (Harvard University, Harvard Law School) has posted Constitutional Norm Entrepreneuring (80 Maryland Law Review, Forthcoming) on SSRN.  Here is the abstract:

Everyone is obsessed today with constitutional norms. They have powerfully penetrated our vocabulary and are mentioned with dizzying frequency. We now know that any account of our valuable constitutional practices cannot end with just politics or law and must also include norms. What is further unique about the current moment in our political era is that an important subset of these norms appears to be exceedingly fragile and is under persistent attack. Some even suggest that the erosion of constitutional norms is at the heart of a global trend of democratic recession. But how precisely do constitutional norms change and ultimately collapse? And is there something actors can do to influence these processes?

This Article’s goal is to explore these questions, both in general and in the context of the alleged trend of democratic recession in particular. It argues that although norms can be understood, following H.L.A Hart, as a “primitive” component in our political systems (given the way they differ from formal law), constitutional norms can in fact attain some of the credentials Hart believed could be attributed exclusively to law. More specifically, the Article claims that we can fashion something akin to “rules of change” and “rules of adjudication” in relation to constitutional norms and accordingly gain a firmer grasp of how they develop, change, and ultimately break down and of how conflicts about constitutional norms are “adjudicated” within our politics. As for “rules of change” for norms, the Article argues that constitutional norms tend to change in predictable ways and as a result of the working of several distinctive mechanisms. As for “rules of adjudication” for norms, the Article identifies a set of concrete strategies that constitutional norm entrepreneurs (who wish to change present norms including bringing forth their demise) and constitutional norm anti-preneurs (who wish to safeguard present norms) can use to try to manipulate constitutional norms to achieve their desired, and oppositional, ends.

The Article concludes by implementing that framework to our present moment of democratic recession. It asks, in other words, what constitutional norm anti-preneurs can do to halt further encroachment upon valuable constitutional norms that appear crucial to the resilience of democratic systems, both in general and in the United States.

New version of an important paper.  Highly recommended.

Bosniak on Territorial Presence & Immigrant Justice

Linda S. Bosniak (Rutgers University School of Law) has posted Territorial Presence as the Ground For Claims: Some Reflections (Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 53-70 (2020)) on SSRN.  Here is the abstract:

"The author sets out to analyse some recent legal developments pertaining to the governance of irregular non-citizen immigrants in the United States. These developments bear on the project of theorising "immigrant justice" as resistance to the growing illiberalization of migration policy. In her view, the very existence of a class of people designated as irregular migrants within state polities presupposes that such polities maintain formal exclusionary border regimes and that in such regimes, some persons are predesignated as ineligible for entry. And even though those exclusion rules do not function to fully preclude entry and presence of such persons, states do not treat their arrival as an automatic basis for full membership either. Hence, irregular immigrants are territorially present in a state that purports to eschew that presence. The author then explores how the idea of “sanctuary” relates to the kinds of claims that both liberal humanitarians and immigrant justice advocates have been making over the last few years. These are claims which ground protection in what exponents cite as the overriding ethical significance of immigrants’ territorial presence – their already-hereness – as the basis for recognition and rights. In particular, the author makes the case that even though "sanctuary" provides a logic of safe harbour, it fails to end the predicament of constitutive based in border exclusionism. For her, the political, social, but also philosophical, struggle for the idea of border abolitionism requires a figurative sword that must go beyond sanctuary so that borders are not just mitigated, but radically deconstructed and even destroyed. The author takes this to be the vital imperative that confronts all legal and political theorists who must engage the normative challenge of rethinking arbitrary law-making in view of the new inequalities that a global political order grounded on sovereign borders produces."

Schauer on Nonoriginalist Textualism

Frederick Schauer (University of Virginia School of Law) has posted Unoriginal Textualism (George Washington Law Review, Vol. 90, 2022) on SSRN.  Here is the abstract:

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

Highly recommended.  Download it while it's hot!