Legal Theory Blog

Tsai & Ziegler on Movement Jurists and Dobbs

Robert L. Tsai (Boston University - School of Law) & Mary Ziegler (University of California, Davis - School of Law) have posted Abortion Politics and the Rise of Movement Jurists (UC Davis Law Review, Vol. 57, 2024) on SSRN.  Here is the abstract:

This article employs the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial codification can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.

In this article, we focus on one type of judge that is ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure—who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives—has emerged as a visible supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists.

Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology—as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by ideology or party loyalty.

We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court.

Tushnet on Varieties of Constitutionalism

Mark Tushnet (Harvard Law School) has posted Varieties of Constitutionalism on SSRN.  Here is the abstract:

This essay, to appear in a revised version in the Elgar Research Handbook on Constitutionalism and Legal Theory, deals with two broad varieties of constitutionalism: political versus legal/judicial constitutionalism, and procedural (liberal) and programmatic (substantive) constitutionalism. The varieties are continuums rather than sharply defined categories, of course.

It examines the arguments political constitutionalists use to reject challenges that the rules of ruling must be entrenched against majoritarian revision and enforced as law by courts, and their defense of political constitutionalism as a sufficiently stable method of resolving disagreements about the rules of ruling. It then examines the arguments legal/judicial constitutionalists make for a two-fold proceduralization to deal with reasonable disagreements about substantive policy, the first into a constitution and the second into judicial resolution of disagreement through the use of modes of reasoning that do not reproduce the underlying disagreements (and notes the challenge that such reasoning actually reproduces such disagreements but obfuscates that fact).

Merely procedural constitutions must deal with, among other things, the constitutional version of the liberal paradox of tolerance, which some do through doctrines of militant democracy. Substantive constitutions here are divided into three subcategories: identitarian (ascribing a specific vision of nationhood, often ethnonationalist, into the constitution); constitutions incorporating second- and later generation rights (economic and environmental); and transformative constitutions. The essay examines various difficulties associated with each of these forms.

Highly recommended.  Download it while it's hot!

Lee on Decentralized Collaboration

Edward Lee (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Decentralized Collaboration Through Private Ordering (American University Law Review, Vol. 73, 2023) on SSRN.  Here is the abstract:

This Article is the first in legal scholarship to set forth the theory of decentralized collaboration and to demonstrate, by an empirical study of the Top 25 NFT projects, its application by startups that have employed a new, more innovative approach to creative production. Decentralized collaboration refers to the creative activities among various unrelated actors, who are involved in creating a shared project of content production through a decentralized, asynchronous process open to the public. Utilizing a combination of smart contracts that create non-fungible tokens (NFTs) recorded on blockchain and intellectual property (IP) licenses setting forth rights for the NFT owners to use associated content, such as visual characters, a substantial majority of the NFT projects have adopted a far more permissive approach to IP licensing that facilitates decentralized collaboration by granting the NFT owners the right to commercialize the artworks, including by making derivative works. Under this arrangement, the NFT owner who commercializes the artwork and engages in decentralized collaboration gets to keep all the profits derived. At the same time, most of the Top 25 NFT projects still impose some restrictions, such as a prohibition against using the project’s trademarks to prevent the potential abandonment of trademark rights. This innovative approach to creative production—in which startups enlist their customers to become cocreators, who receive commercial rights to monetize the artwork identified by NFTs—is a dramatic change from the traditional All Rights Reserved approach of the major media industries. Proponents of this more permissive approach believe it has greater potential for empowering creators and maximizing the Internet for creativity. The economic downturn, however, poses formidable challenges for all businesses, not just NFT startups.

Keck on Democratic Backsliding

Thomas M. Keck (Syracuse University - Maxwell School of Citizenship and Public Affairs) has posted Free Speech in an Age of Democratic Backsliding (International Journal of Constitutional Law, 2023) on SSRN.  Here is the abstract:

This review essay draws on recent books by Richard L. Hasen and Jacob Mchangama to reflect on the difficult tradeoffs faced by civil liberties advocates in the context of democratic backsliding.

Creutzfeldt on Ombuds and Cultural Patterns

Naomi Creutzfeldt (University of Kent) has posted Cultural Patterns of Disputing Behaviour? (Zeitschrift für Rechtssoziologie. 2023.) on SSRN.  Here is the abstract:

This essay builds on my previous comparative work on Ombuds users and develops the notion of cultural patterns, and attitudes, towards disputing in Germany and the UK (Creutzfeldt & Bradford 2018, Creutzfeldt 2016). I argue that expectations of Ombuds processes are grounded in our socialization of legal or legal-adjacent processes. I explore, through the lens of legal consciousness, the role that legal culture plays in our interactions with the Ombuds in two countries. I do this through drawing on evidence from my existing empirical datasets. Then, I discuss the impact of the pandemic on the developed notion of cultural disputing behaviour in Germany and in the UK and I posit that we have to reimagine legal consciousness in the online justice space, which claims its own hegemony. For instance, an indication of the things which shape, or problems which arise out of, or are enhanced by, the digital space shaping our legal consciousness. The essay concludes by suggesting new ways of thinking about our patterns of online disputing, detached from our national cultural context, embracing an emerging digital legal consciousness with an enduring impact on our expectations from a justice system and the Ombuds process.

Barth on the Retained EU Law Bill and EU-Law Conforming Constructions in the UK

Fabian Barth (Bournemouth University) has posted How Will The Revocation Bill Affect The Principle Of EU Law Conforming Construction In UK Law? on SSRN.  Here is the abstract:

Following prolonged political controversy, it now appears that the provisions in the Retained EU Law (Revocation and Reform) Bill which abolish general principles of EU law, as well as its supremacy, might be enacted. This article investigates whether this is likely to affect the principle of EU-law conforming construction, and contemplates three scenarios how EU-derived law might be interpreted once the Bill is enacted.

Contreras on Open Source Biotech

Jorge L. Contreras (University of Utah - S.J. Quinney College of Law) has posted The Evolution Of Open Source Biotech - From Liberty To Justice (Forthcoming in A Human-Centered Approach to Health Innovations (Lisa Biersay, Thomas Pogge, Peter Yu, eds., Cambridge Univ. Press, 2024)) on SSRN.  Here is the abstract:

The COVID-19 pandemic has prompted a resurgence of interest in “open source” approaches to biotechnology development. Like the open source software projects that inspired them, early open source biotech efforts sought to free researchers from the constraints imposed by intellectual property and corporate nondisclosure agreements, thereby enabling an open and broadly collaborative research environment. Benefits realized by users of the products of this research were recognized but they were not the primary focus of the open source approach. More user-oriented proposals that sought to harness open source development to promote social justice through broader access to biomedical products emerged later, and gained significant public attention with the emergence of COVID-19 and the inequitable distribution of vaccines and therapeutics around the world. These inequities have led to new development efforts that invoke open source principles to differing degrees. This chapter traces the trajectory of open source biotech and its evolution from an endeavor focused on the liberty interests of individual researchers to one that primarily seeks to promote social justice in the area of drug development and access While there is a rhetorical resonance between the concept of “open source” development and the achievement of social justice goals, it is not clear that the free and open source approaches that originated in the software industry are always well-suited to achieving these goals in the context of biomedical research. Accordingly, advocates of a more humanistic approach to drug development and the equitable distribution of biomedical products need not adhere to a traditional model open source development but should allow their practices to evolve to fit the needs and goals of equitable biomedical research.

Weinstein-Tull on Everyday Experience of Federalism and Separation of Powers

Justin Weinstein-Tull (Arizona State University College of Law) has posted The Experience of Structure (Arizona State Law Journal, Forthcoming) on SSRN.  Here is the abstract:

How do we experience constitutional structure? We understand structure—federalism and the separation of powers—as the ordering of governmental bodies. Rarely, however, do we ask how those structures affect our daily lives. Courts treat this question abstractly. They assert that federalism and separation of powers create “liberty” for individuals without specifying what that liberty looks like and who enjoys it. They speculate about the values of federalism and the normative virtues of the separation of powers. This is structural reasoning that sounds in human experience, but it is empty, based on little more than conjecture. The consequence is a faulty jurisprudential logic that permits courts to diminish federal rights for specific individuals in favor of uncertain, speculative, and generalized structural benefits that only some enjoy.

In this Article, I make the case for centering a broad base of human experience in structural constitutional law and provide a methodology for doing so. I argue that we experience constitutional structure as a calibration of the role and degree of federal and state governments in our lives. Since we all experience government differently—in ways that often relate to race and wealth—so too do we experience constitutional structure differently. I call this variability experiential pluralism and argue that engaging with this pluralism is essential to the constitutional project of equality. Reasoning from experience, rather than abstract normative theory, requires us to broaden our structural logic so that human experience becomes its primary epistemic source. Doing so both provides the intellectual foundations for a progressive, inclusive structural constitutional law and generates new perspectives on otherwise stalled structural issues like state sovereignty and criminal justice.

Highly recommended.

Jaeger on Experimental Jurisprudence and Whitness

Christopher Brett Jaeger (Baylor Law School) has posted Reasonableness from an Experimental Jurisprudence Perspective (Cambridge Handbook of Experimental Jurisprudence (Kevin Tobia, ed.)) on SSRN.  Here is the abstract:

Legal outcomes often depend on whether conduct is reasonable. But how do we judge what is reasonable? What are the relevant criteria?

Legal theorists have long debated these questions. This Chapter outlines some of the leading theories. It then describes recent experimental work probing lay judgments of what is reasonable, examining how these findings align, or do not align, with legal theory. The experimental findings indicate that the lay concept of reasonableness is hybrid: what lay people judge to be reasonable depends on multiple considerations, some of which comport with prominent legal theories and some of which do not. Building on the idea that reasonableness is a hybrid concept, this Chapter raises important additional questions about reasonableness—questions that experimental jurisprudence is well-suited to explore.

Highly recommended.

Parks on Whiteness

Gregory Scott Parks (Wake Forest University - School of Law) has posted Whiteness as Ideology (Case Western Reserve Law Review, Vol. 73, No. 2, 2023) on SSRN.  Here is the abstract:

In 1993, Cheryl Harris published her pathbreaking article, “Whiteness as Property,” in the Harvard Law Review. In it, she explored the interrelations between whiteness, a socially constructed form of racial identity, and property. Three years after Harris’s publication, Ian Haney López offered additional nuance and texture to the idea that race is a social construct. In short, racial identity manifests and perpetuates itself through various economic, legal, and institutions to allocate power and resources to some—and not other—”racial” groups. In the United States, some Whites use race as a social construct to support a racial hierarchy or caste system.

Political ideology reflects the interrelated attitudes and values that people have about society’s proper goals and how to achieve them. It influences people’s beliefs, emotions, thoughts, and actions. The conservative to liberal spectrum provides a continuum along which one can assess these components. It is a “yardstick” by which one can identify parties, political leaders, laws, and policy. Political ideology is predictive of the extent to which individuals are discriminating or inclusive, status quo or change oriented, past- or future-oriented, and obedient or challenging of authority.

In this article, I argue that whiteness is the ideology of a sizable portion of American citizens, largely on the political Right, more specifically among President Donald Trump’s supporters. For them, whiteness—and the historical power, value, and control of resources associated with it—has become all-consuming, the driving force behind their ideology. It is why the values that have traditionally been associated with conservatism have been cast aside by those on the political Right in exchange for Trumpism. Nothing more clearly highlights this phenomenon than many Republicans’ rejection of the rule of law/law and order and support for law enforcement in light of the January 6 (2021) Insurrection.

Wolff on European Court of Human Rights Case Law on Religion and Belief

T. Wolff (Amsterdam Law School, University of Amsterdam) has posted Cogency, Seriousness, Cohesion, and Importance: Assessing the Strasbourg Case-Law on Religion or Belief (Oxford Journal of Law and Religion, 2023) on SSRN.  Here is the abstract:

In Campbell and Cosans v the United Kingdom (1982), the European Court of Human Rights (ECtHR) determined that a view must ‘attain a certain level of cogency, seriousness, cohesion and importance’ to be considered a religion or belief under Article 9 of the Convention. The Court has seemed hesitant to provide much guidance beyond the words quoted. This article’s first aim is to attempt a comprehensive interpretation of these requirements by examining clues as to their meaning and scope in the case law of the last 40 years. This includes well-known cases like Pretty and Gough, as well as recent cases like Vavřička and De Wilde. The second aim is to evaluate these standards in light of liberal egalitarian principles, specifically, the principle of ‘integrity’ developed by Cécile Laborde. Integrity refers to the value of living in accordance with one’s profound beliefs, which are distinguished from mere preferences and inclinations. The argument presented is that the objective versions of cogency, cohesion, and importance endorsed by the ECtHR are incompatible with the subjectivist value of integrity. Conversely, depending on which of three possible interpretations of seriousness one finds most plausible, the ECtHR’s version of seriousness may align with the integrity view.

Legal Theory Lexicon: Rules, Standards, Principles, Catalogs, and Discretion

Introduction

Early on in law school, law students begin to realize that legal norms are not all cut from the same cloth. Some rules provide "bright lines," others "fuzzy lines," and yet others, no lines at all. The "reasonable person" test in tort law constrains in a very different way than does the rule against perpetuities in property. That is, legal norms differ in the extent to which they constrain those who are charged with applying them.

We can slice and dice legal norms in various ways. In this post, we will investigate the idea that legal norms can be sorted into five general classes: rules, standards, principles, catalogs, and discretion. Let's stipulate to the following descriptions and definitions to get the discussion off the ground:

Rules are the most constraining and rigid. Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant (unless the case falls within the penumbra of a rule with vague content).

Standards provide an intermediate level of constraint. Standards guide decisions but provide a greater range of choice or discretion; standards define a set of mandatory considerations.

Principles are even less constraining. Principles provide mandatory considerations for judges. Whereas, standards identify an exhaustive set of considerations for adjudication or policy making, a principle identifies a member of a nonexhaustive set, leaving open the possibility that other unspecified considerations may be relevant to the decision.

Catalogs are a hybrid form of legal norm.  A catalog consists of a list of things that are within (or without) the legal norm, and then an explicit or implied sweepings clause, e.g., "and other things like the foregoing."  Catalogs require judges to make decisions about what things not on the list are relevantly similar to the things on the list.

Discretion is a final option.  The relevant legal norm may simply be a secondary rule that grants discretion to an official (frequently a judge).

This post provides an introduction to rules, standards, principles, catalogs, and discretion for law students (especially first-year law students) with an interest in legal theory.

Rules

Although the phrase "legal rule" can be used in a broad sense, to refer to all legal norms, whether they be cast in the form of a bright-line rule, a standard that is in the form of a balancing test, or even an abstract principle, there is also a narrower sense of "rule" that distinguishes rules from standards and principles.

Rules themselves vary--let's use hard and soft to refer to the poles of a continuum. A rule is harder if both the conditions for its application and the consequences that follow are defined by bright-line distinctions that admit of easy application. The rule that disqualifies persons who are not 35 years of age from eligibility for the Presidency of the United States is quite hard or rigid. Rules become softer as they criterion for the application and/or the consequences to which they lead become fuzzier. If the constitution had limited the presidency to "adults," then there could have been cases in which the question whether a particular candidate was unclear. Twelve-year olds are clearly not adults but twenty-five year olds clearly are. In between, the necessity of drawing a somewhat arbitrary line makes the "adult" rule relatively softer than the "35-year old" rule.

Standards

Standards are less constraining than even "soft" rules. Whereas a rule defines a triggering condition and a consequence, a standard may define a set of relevant considerations and options. One familiar example of a standard is provided by the fairness component of the International Shoe test for personal jurisdiction. That test requires a court to find that a state's assertion of personal jurisdiction violates the Due Process Clause on the basis of a give factor balancing test, which refers to the defendant's interest, the plaintiff's interest, the interest of the forum, judicial efficiency and economy, and substantive policy concerns.

Like rules, standards themselves vary in their capacity to guide and constrain the decision-making process. Some standards give the decision maker substantial guidance, by specifying relatively specific and concrete factors the decision maker should consider and the relative weight or importance of those factors. Other standards are much more open ended, requiring consideration of factors that are general and abstract. Standards that refer to "all the circumstances," "the interests of justice," or "equitable considerations" are particularly soft. Standards that require the evaluation of "cost to the defendant" or "serious invasions of privacy" are relatively harder, providing greater constraint and guidance.

By way of illustration, consider eligibility for the presidency once again. A rule based approach might limit eligibility to persons of a certain age or to "adults." A standard might specify that the only persons who are "sufficiently mature" may occupy the office of President. This standard is relatively open-ended, and it might disqualify some sixty-year olds from the presidency but allow some 20 year olds to serve.

Principles

Principles are quite different from both rules and standards--at least on the basis of the definitions that we are using. Both rules and standards provide a framework that is, in theory, sufficient for resolving a particular issue in a legal dispute. But as we are using the term, a "principle" only provides guidance for the interpretation or application of a rule or standard. Principles by themselves do not resolve legal issues.

This sense of principle is illustrated by Ronald Dworkin's example of the principle that no one should be allowed to profit from their own wrong, drawn from the case of Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case, the statute of wills would have allowed a murderer to inherit from his victim, but the New York Court of Appeals concluded that the statute should be given an equitable interpretation in light of the common law principle against wrong doers profiting from their wrongs. This principle is not a rule: the law does permit wrong doers to profit from their wrongs in a variety of circumstances. Rather, this general and abstract principle provided guidance in the interpretation and construction of a rule--in Riggs, the rule provided by the statute of wills. (This example is drawn from Ronald Dworkin's famous essay Hard Cases.)

Catalogs

Catalogs can be seen as a compromise between rules and standards, with a twist.  A catalog provides a list that function likes a rule, but then invites expansion of the list.  For example, the Equine Activities Act provides that “No equine activity sponsor, equine professional, doctor of veterinary medicine, or any other person, is liable for an injury to or the death of a participant resulting from the inherent risks of equine activities.”  Suppose that the act had instead said "or similar persons."  Courts would then have been invited to engage in analogical reasoning to extend the catalog.

Discretion

Finally, many legal norms give discretion to a decision maker.  For example, trial judges have discretionary power to decide how many witnesses a party may call on a particular issue.  This decision will be upheld by an appellate court, unless it can be shown that the trial judge's decision was an "abuse of discretion."  This standard of appellate review is highly deferential, but if the trial judge's decision was improperly motivated (e.g., by spite) or irrational, the decision can be reversed.

The Pros and Cons of Rules, Standards, and Principles

What are the pros and cons of rules, standards, and principles? When you have identified a candidate legal norm, when should you argue that the norm should be formulated as a rule, a standard, or a principle? In his famous 1985 article, Pierre Schlag provided this example:

In one torts casebook, for instance, Oliver Wendell Holmes and Benjamin Cardozo find themselves on opposite sides of a railroad crossing dispute. They disagree about what standard of conduct should define the obligations of a driver who comes to an unguarded railroad crossing. Holmes offers a rule: The driver must stop and look. Cardozo rejects the rule and instead offers a standard: The driver must act with reasonable caution. Which is the preferable approach? Holmes suggests that the requirements of due care at railroad crossings are clear and, therefore, it is appropriate to crystallize these obligations into a simple rule of law. Cardozo counters with scenarios in which it would be neither wise nor prudent for a driver to stop and look. Holmes might well have answered that Cardozo's scenarios are exceptions and that exceptions prove the rule. Indeed, Holmes might have parried by suggesting that the definition of a standard of conduct by means of a legal rule is predictable and certain, whereas standards and juries are not. This dispute could go on for quite some time.

Here are some basic ideas about the appropriateness of rules, standards, principles, catalogs, and discretion:

Predictability and certainty. If your goal is ex ante predictability and certainty, then rules are usually the way to go. Predictability and certainty are particularly important when the law seeks to guide future conduct. For example, if we want to deter particular forms of conduct, we may do better to define the conduct in a rule (or in a set of rules) that would enable those who engage in the conduct to clearly see that the proscribed conduct is forbidden. Standards provide less guidance, and principles, almost no guidance at all.

Fairness and sensitivity. On the other hand, if our goal is to insure ex post fairness, then standards may be the way to go. Standards permit flexibility and the consideration of mitigating circumstances. Rigid rules are likely to lead to unfairness in particular cases, because it may be difficult to define in advance all of the circumstances which should count as exceptions to the rule.

Complexity and Incommensurability.  Some decisions involve very complex judgment calls that involve the application of multiple and incommensurable factors to particular situations that are highly variegated or even unique.  This is a situation where rules are unlikely to work well, and therefore standards or discretion seems appropriate.

The job of principles. Principles seem best suited for another sort of legal task. Principles cut across doctrinal fields. The same principle--one may not benefit from one's own wrong, for example--may apply in torts, contracts, and the law of wills. Thus, principles are particularly well suited to give legal form to concerns which operate in a wide variety of particular contexts.

Conclusion

Legal theorists need to be able to identify rules, standards, principles, catalogs, and discretion.  More importantly, legal theorists need to be able to argue the pros and cons of formulating legal norms in these standard forms. The main goal of this post has been to enable you to distinguish a rule from a standard and to see that principles operate in a different way than either rules or principles. I also hope that the post has provided you with some tools that will enable you to make arguments like: “this rule would better be reformulated as a standard, because . . ." And arguments, like, “that legal norm really isn't a standard at all, it is better described as a principle.” I've provided some additional references, for those who want to pursue these ideas further.

Related Lexicon Entries

• Legal Theory Lexicon 001: Ex Ante/Ex Post
• Legal Theory Lexicon 017: The Rule of Law
• Legal Theory Lexicon 024: Balancing Tests
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 072: Scalars and Binaries 

References

• Larry Alexander, What are Principles, and Do They Exist? (2013).
• Baird & Weisberg, Rules, Standards, and the Battle of the Forms: A Reassessment of § 2-207, 68 Virginia Law Review 1217 (1982).
• Ronald Dworkin, Hard Cases in Taking Rights Seriously (1977).
• Herbert Hart & Albert Sacks, Hart & Sacks' The Legal Process: Basic Problems in the Making and Application of Law (University Casebook Series®) (William N. Eskridge Jr. & Phillip P. Frickey eds. 2001).
• Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L. REV. 557 (1992) .
• Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685 (1976).
• Gideon Parchomovsky & Alex Stein, Catalogs, 114 Colum. L. Rev. (forthcoming 2014).
• Pierre J. Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985).

Permanent Version

Legal Theory Lexicon 026: Rules, Standards, Principles, Catalogs, and Discretion

(This entry was last modified on June 25, 2023.)

Legal Theory Bookworm: "After Meaning" by d’Aspremont

The Legal Theory Bookworm recommends After Meaning: The Sovereignty of Forms in International Law by Jean d’Aspremont.  Here is the abstract:

Inspiring and distinctive, After Meaning provides a radical challenge to the way in which international law is thought and practised. Jean d’Aspremont asserts that the words and texts of international law, as forms, never carry or deliver meaning but, instead, perpetually defer meaning and ensure it is nowhere found within international legal discourse.

In challenging the dominant meaning-centrism of the international legal discourse and shedding light on the sovereignty of forms, this book promotes a radical new attitude towards textuality in international law. The author offers new perspectives on interpretation, critique, history, comparison, translation and referencing, inviting international lawyers to reinvent their engagement with these discourses. Chapters define meaning and form in international law, explore deferral of meaning and make an unprecedented use of post-structuralist theory to rethink international law.

After Meaning will be an essential reference point for legal scholars, researchers and students who seek to understand a different way of thinking about meaning in international law. The book’s engagement with post-structuralism will also prove beneficial to anyone interested in the philosophy of language and literary theory.

And from the reviews:

‘If you are the rare kind of jurist on the international scene disposed to engage in introspection so radical that none of your epistemic postulates will be safe, not even your most evident assumptions (that the words of a law-text carry a meaning at once ascertainably present and transmissible, for example), if you think you can withstand the affective cost of such profound intellectual self-transformation, then this title might be your rare kind of book.’ -- Pierre Legrand, Ecole de droit de la Sorbonne, France

Download of the Week: "Judges Under Stress: Legal Complexes and a Sociology of Hope" by Halliday

Terence C. Halliday (American Bar Foundation) has posted Judges Under Stress: Legal Complexes and a Sociology of Hope on SSRN.  Here is the abstract:

Interdisciplinary sociolegal scholarship over the past thirty years has demonstrated that the epochal struggle for political liberalism over all continents over the longue durée invariably implicates not only lawyers but also judges within a wider legal complex. This article brings into juxtaposition the comparative and historical research on legal complexes with the stresses confronted by judges in Central and Eastern Europe. The article proceeds in five parts.

First, based on comparative research, it offers a conceptual analysis of six distinctive meanings of judges and judiciaries as (i) single persons, (ii) conglomerations, (iii) institutions, (iv) collective actors, (v) cases, and (vi) symbolic ideals.

Second, it identifies varieties of stressors—adverse pressures on judges—that erode the legitimacy and efficacy of different categories of judges. Different classes of stressors appear to have affinities with the six ways that judges and judiciaries are understood and conceived.

Third, building on empirical evidence across the world in the past 400 years, with special reference to Egypt, Pakistan, Taiwan and Hong Kong in recent decades, it proposes that a theory of legal complexes sharpens focus on interactions among practicing legal professions that will influence the robustness of judges’ ability to cope with stress. Domestic legal complexes can include judges, private lawyers, government lawyers, legal academics and prosecutors. International legal complexes increasingly affect the viability of robust, resilient and adaptive judiciaries when they are under threat.

Fourth, it argues that evidence on legal complexes can move scholarship on judges under stress from static frameworks of social structures to the dynamics of a sociology of hope. Legal complexes offer structural resourcefulness and repertoires of action, including street demonstrations and public protests, media campaigns and boycotts, bar association declarations of support and granting of awards, to educating publics.

Fifth, the paper identifies four sets of contingencies that recur comparatively in legal complex efforts to relieve stress on judges and judiciaries. The many points at which judiciaries can be defended and promoted, the sheer profusion of ways that combinations of legal complexes can combine and contend for judiciaries, together conjoin to offer hope that often springs from a redemptive irony of repression by authoritarian rulers who seek to erode judicial authority and undermine a liberal-legal order.

Highly recommended.

Kim on a National ID System

Nathaniel Kim (Georgetown University, Law Center) has posted National ID for Public Purpose (Georgetown Law Technology Review, Vol. 7 (2023)) on SSRN.  Here is the abstract:

Though there has been much discussion (both in policy circles, legal academia, and mainstream media) of the possibility of a national ID system in the United States, little academic work has been done to examine how recent technological innovations can deliver certain security and transparency capabilities that would quell a great deal of the concerns that have been raised (from across the political spectrum) regarding national ID. This paper identifies the primary fears which underlie common arguments against a national ID scheme and pinpoints certain technological and cryptographic developments that could realistically be integrated into a new ID system to alleviate those fears. The paper also acknowledges the very real obstacles that could get in the way of a nationwide implementation, and proposes both technical and legal mechanisms to overcome those obstacles. Especially in the aftermath of the COVID-19 pandemic, where crucial public functions such as public health surveillance and vaccine tracking could have significantly benefited from a national ID system, this paper argues for a national ID that is designed from the get-go with public service delivery needs in mind, instead of the needs of national security or law enforcement.

An interesting student piece.

Miller on the Concept of the Police

Eric J. Miller (Loyola Law School Los Angeles) has posted The Concept of the Police on SSRN.  Here is the abstract:

The organization of the modern police is a contingent social choice about how to engage in the process of governance when regulating public order on the street. The police are the agency authorized to act upon the state’s duty to govern in response to public emergencies. The duty to govern exists when there is some urgent social need that could be resolved by acting, and some person or institution has the resources and ability to do that act. The duty is impersonal: anybody with the relevant skill set is obligated to act to address the relevant need. Problems can arise, however, when too few individuals respond or too many compete to resolve the need. A core feature of governance, then, is to create publicly recognized institutions with special authority, resources, and abilities to address the demand for public services when someone needs to step in and do something to the exclusion of ordinary members of the public.

Police agencies are further characterized by various powers and duties. These powers are normative powers to change the legal status of the people with whom the police interact, rather than physical powers to use some amount of violence to coerce individuals to comply with police demands. The core powers of the police include the powers to make authoritative determinations about how to respond to an emergency, to detain individuals, and to trespass upon their person or property, along with conjoined duties to govern, to protect, and to intervene at risk to themselves.

The dominant approach attempts to distinguish the police from other institutions using the police ability to use violent to respond to public emergencies. On the governance based model of the police, however, the ability to use force is simply one of the resources available to the police, and does not mark them off as different from other public governance agencies.

Highly recommended.

Berman on Blameworthiness and Culpability

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted “Blameworthiness” and “Culpability” Are Not Synonymous: A Sympathetic Amendment to Simester (Criminal Law & Philosophy, Forthcoming) on SSRN.  Here is the abstract:

Andrew Simester’s new book, Fundamentals of Criminal Law: Responsibility, Culpability, and Wrongdoing , is a masterful analysis of the doctrines of the general part of the criminal law and the multiple, overlapping functions that those doctrines serve. Along the way, Simester makes explicit what criminal law theorists routinely presuppose—that the ordinary words “blameworthiness” and “culpability” pick out the same moral concept. This essay argues that this assumed equivalence is mistaken: two concepts are in play, not one. Roughly, to be blameworthy is to be justly liable to blaming practices in virtue of being at fault, and to be culpable is to act in a fashion that manifests or issues from insufficient concern for morally weighty interests. Culpability is not identical to blameworthiness, but rather a ground of blameworthiness: to be culpable is one way to be at fault, thus one way to be blameworthy. More importantly, culpability is not the exclusive ground of blameworthiness; an agent can be at fault, hence blameworthy, without being culpable. This essay defends these conceptual claims and draws forth some implications for two theses that Simester advances: that it is morally permissible to punish persons for criminal negligence and that it is unjust to punish persons who don’t deserve it.

Highly recommended.

Green on Federal Common Law Permissions

Michael S. Green (William & Mary Law School) has posted Federal Common Law Permissions and Federal Noughts (William & Mary Law School) on SSRN.

When a state’s courts have a practice of not providing plaintiffs with relief — because no relevant cause of action under the state’s law exists — the state has a common law rule that permits the defendant to refuse to provide relief. Because there are countless such scenarios, state common law permissions are ubiquitous.

One might think that state courts deny relief due to the absence of law creating a cause of action, not the presence of a common law permission. But that cannot explain how courts reason in choice-of-law cases where one state has a cause of action and the other does not. The court making the choice will take the latter state to have law, with regulatory purposes — law that preempts the causes of action of other jurisdictions when it applies, but that can also not apply, in which case the defendant’s compensatory obligations are up to the other state’s law. The absence of law can’t do that. Only law can. Since there is no enacted law, the law at issue must be unenacted law, or common law.

Just as common law permissions exist under state (and foreign) law, so they exist under federal law. But federal common law permissions are not as prevalent as their state law variants. They exist only when one considers the absence of a federal cause of action to be relevant for preempting foreign causes of action. Usually it is the absence of a cause of action of a state that is relevant.

If there is a federal common law permission and it applies to the facts, the defendant is permitted to refuse to provide relief under federal law and the cause of action of any other nation (although not the cause of action of a state) is preempted. When the federal common law permission does not apply, the defendant’s refusal to provide relief is — as I will call it — noughted under federal law: there are no federal grounds for granting or denying relief to the plaintiff. The matter is yielded to a cause of action or a permission of the foreign nation (although a state’s cause of action may also apply).

The distinction between federal noughts and common law permissions is essential in understanding federal causes of action whose international scope has been limited due to interpretive principles like the presumption against extraterritoriality. There are two ways of understanding how federal law treats facts that fall beyond the limitation: they might be noughted under federal law or a federal common law permission might apply. The failure to distinguish between the two scenarios has led to confusion and injustice.

Sometimes a federal court will apply a federal common law permission but treat it like a nought. An example is Justice Alito’s opinion in Hernandez v. Mesa, 140 S.Ct. 735 (2020). The result is injustice and incoherence about extraterritorial effect. Federal common law is applied extraterritorially without adequate justification, because it is understood as the absence of law — a legal nothing.

Sometimes a federal court dismisses a case because the facts are noughted under federal law but acts as if a federal permission had been applied. Here my example is Justice Scalia’s opinion in Morrison v. National Australia Bank, 61 U.S. 247 (2010), in which he upended the established practice of dismissing federal noughting cases for lack of subject matter jurisdiction, arguing that they should be dismissed for failure to state a claim instead. The result has been confusion, most notably concerning federal jurisdiction and preclusion.

Although my argument is primarily focused on the confusion between federal common law permissions and noughts, it has a transformative impact on many foundational legal issues. It massively increases the amount of recognized state common law. It substantially increases the amount of recognized federal common law. It attacks a prevailing philosophical view that legal permissions are absences. And it has a dramatic effect on theories of statutory interpretation, by offering noughting and common law permission conceptions of what it means for a statute to “not apply.”

Highly recommended.

Lande on Statutory Textualism and Antitrust Enforcement

Robert H. Lande (University of Baltimore - School of Law) has posted Textualism as an Ally of Antitrust Enforcement: Examples from Merger and Monopolization Law (Utah Law Review, Vol. 2023, No. 4, 2023) on SSRN.  Here is the abstract:

Advocates of vigorous antitrust enforcement should not fear the rise of textualism. The Sherman Act, Clayton Act and FTC Act were all enacted as a result of the progressive movement. These laws were written in large part to protect the interests of consumers against possible exploitation by trusts, cartels, monopolists, and large merging firms. It should not be surprising that textualism’s focus on the precise words of these statutes should help the cause of consumers and vigorous antitrust enforcement.

Consider the original words in Section 2 of the Sherman Act, and also some specific words that were not used in the statute. Section 2 makes it unlawful for any person to “monopolize, or attempt to monopolize . . .. .” There is nothing in the statute, no language in Section 2, that requires anticompetitive conduct. No words carve out an exception for an efficiently acquired monopoly.

Consider also Section 7 of the Clayton Act which prohibits mergers the effect of which “may be substantially to lessen competition or to tend to create a monopoly.” The statute uses “may” instead of other terms that sometimes are used in current case law, such as “is likely to” or “will.” Textualist analysis shows that “may” demands a tougher approach to merger enforcement than these alternatives.

The plain words of Section 7, moreover, do not contain or permit an efficiencies defense, at least for mergers that may “tend to create a monopoly.” Because the statute contains no such efficiencies defense, textualist analysis means that courts erred when they created one.

Highly recommended.

Goldrosen on Marijuana Legalization, Gun Fatalities, and Bruen

Nicholas Goldrosen (Institute of Criminology, University of Cambridge) has posted Subtracting 420 from 922: Marijuana Legalization and the Gun Control Act After Bruen on SSRN.  Here is the abstract:

Numerous states have legalized marijuana for medical and recreational use. Nonetheless, federal law prohibits users of marijuana, which remains illegal federally, from possessing firearms. I interrogate this legal tension from two angles. First, this paper brings empirical evidence to this conversation: Does legalizing marijuana lead to more gun deaths?

It doesn’t. This article analyzes the effect of recreational and medical marijuana legalization on gun homicides, suicides, and deaths as well as on gun prevalence, gun purchasing, and federal gun prosecutions. I combine administrative data from the National Vital Statistics System, National Instant Criminal Background Check System, and United States Sentencing Commission for the period from 2010 through 2020. To estimate a causal effect, I employ a difference-in-differences method with staggered treatment timing from Callaway and Sant’Anna (2021) to compare states that have legalized marijuana to those that have not yet legalized marijuana but will during the study period. There is no evidence of a statistically significant treatment effect of either recreational or medical marijuana legalization on firearms deaths, homicides, or suicides. Additionally, there is no evidence that legalization causes greater firearms sales or prevalence, or that the federal gun prohibition for marijuana users deters gun killings post-legalization.

Secondly, this regulation has received new scrutiny after the Supreme Court’s recent ruling in NYSRPA v. Bruen, under which firearms regulations must be justified by consistency with “this Nation’s historical tradition of firearm regulation.” Courts have come to conflicting answers on whether the prohibition on gun ownership by marijuana users accords with the Second Amendment under Bruen. I therefore survey three potential legal paths for resolving the conflict between state legalization of marijuana and federal gun laws. First, legislators might directly amend the Gun Control Act to allow for gun possession by some or all marijuana users. Second, legislators might reform marijuana’s status within the Controlled Substances Act more broadly. Finally, an uncertain future for the controlled-substance-user prohibition exists in the courts post-Bruen. The Bruen decision’s unworkable tests do not clearly support either upholding or striking down this ban. If anything, the interpretation of the federal ban on gun possession by marijuana users under Bruen highlights the impracticability of its test. Amongst these solutions, I argue that broader Controlled Substances Act reform is the likeliest to provide consistency while not harming public safety.

Recommended.

Moiseienko on Foreign Policy Sanctions and Crime

Anton Moiseienko (ANU College of Law) has posted Crime and Sanctions: Beyond Sanctions as a Foreign Policy Tool (German Law Journal (Forthcoming)) on SSRN.  Here is the abstract:

Targeted sanctions, namely asset freezes and travel bans, are no longer the province of foreign policy alone. They are increasingly often used by governments in response to crime, such as corruption, human rights abuse, cybercrime, drug trafficking, and transnational organized crime writ large. Such sanctions are imposed based on permissive evidential standards, such as that of “credible evidence” or “reasonable grounds to suspect.” Their advent has added a new layer to a multi-tier system of state responses to crime. First, there is the traditional approach of criminal prosecution and conviction based on the criminal standard of proof. Second, one rung below is non-conviction based asset forfeiture, a notionally civil confiscation of supposed proceeds of crime that eschews the need for compliance with a suite of criminal trial safeguards. At the third level of this hierarchy are crime-based targeted sanctions, which vest the state with the greatest latitude in dealing with suspected criminals. Based on a wide-ranging analysis of international practice, this article contends that not only are crime-based sanctions de facto a criminal justice tool, but also that a coherent set of principles is required to determine their relationship with other responses to criminal behavior.

Recommended.

Hill & Crowe on Sexual Consent Law in Australia

Guzyal Hill (Charles Darwin University) & Jonathan Crowe (Bond University - School of Law) have posted Harmonising Sexual Consent Law in Australia: Goals, Risks and Challenges ((2024) 49(3) Monash University Law Review (Forthcoming)) on SSRN.  Here is the abstract:

The 2021 Australian of the Year, Grace Tame, sought to persuade ‘all governments across Australia to adopt the same definitions of consent, grooming, the age of a child, and sexual intercourse’. However, sexual consent law harmonisation in Australia faces formidable obstacles. We argue that an affirmative consent standard represents the appropriate goal of harmonisation, while potential risks include levelling-down reforms and undermining the role of competitive federalism. We identify four main obstacles to legal harmonisation, including strong advocacy coalitions, jurisdictional differences, historical failures and political disincentives. We conclude these obstacles do not mean harmonisation is undesirable or impossible, but it would require prolonged attention, resources and political will, as well as a nuanced understanding of the difficulties involved.

Fox on the Abortion Double Bind

Dov Fox (University of San Diego: School of Law) has posted The Abortion Double Bind (American Journal of Public Health (forthcoming, Volume 113) on SSRN.  Here is the abstract:

Medically needed abortion care is being delayed and denied because doctors are understandably wary not to cross the line set by ambiguous medical exceptions to felony prohibitions against ending a pregnancy. Yet the very abortion that state bans outlaw as first-degree homicide, other parts of our legal system actually command as essential care to save a patient’s life or preserve her health. Clinicians are left a precarious double bind: trapped between (1) the risk of criminal conviction for ending a pregnancy that’s not dangerous enough, and (2) the risk of civil liability for not ending a pregnancy that’s too dangerous, under state malpractice law or a federal statute that requires emergency medical treatment. The chilling effect of vague emergency exemptions doesn’t mean that it would be better for states to specify eligible conditions. Detailed lists might reassure tentative physicians in performing an abortion under particular circumstances. But such medical preclearance would also operate to suppress the case-by-case discretion that’s critical to provide that’s responsive to context under time-sensitive conditions. This article traces key features of the abortion double bind to the era before Roe v. Wade. And it spells out concrete actions that concerned professionals and the groups that represent them should take to reduce the risk of being sued or prosecuted for exercising reasonable medical judgement and good-faith legal interpretation.

Highly recommended.

Wendel on Lawyers and Citizen Co-Deliberation

W. Bradley Wendel (Cornell University - School of Law) has posted How Can You Have Law Without Lawyers? Legal Formalism, Legality, and the Law Governing Lawyers (Thilo Kuntz & Paul B. Miller, eds., Methodology in Private Law Theory: Between New Private Law and Rechtsdogmatik (Oxford University Press 2023) (forthcoming)) on SSRN>  Here is the abstract:

Lon Fuller’s famous parable of King Rex, which begins The Morality of Law, is intended to show how governing through law differs in morally significant ways from governing by top-down commands or the exercise of managerial discretion. Few observers have noticed a key omission from Fuller’s story: There are no lawyers in Rex’s kingdom. Rex aimed to make law, which affects the practical reasoning of citizens. In order to do this, it is necessary for citizens to grasp the way in which the law has an impact on what they have reason to do. Borrowing from Hart’s idea of the internal point of view, many philosophers today believe that the normativity of law depends on participating competently in a social practice of evaluating, claiming, justifying, and making demand on each other with reference to the community’s law. If that is so, lawyers are a necessary feature of a legal system.

It is clear that lawyers are epistemically necessary for law to provide guidance to its subjects. Not only is the language of law inaccessible to people without legal training, but non-lawyers also lack the specialized training necessary to determine the precise holding of a case, interpret statutory language, and understand the interaction of common law, statutes, regulations, and constitutional provisions. The argument in this chapter goes beyond epistemic necessity, however. I contend that an important function of the law is to provide reasons that may be given by one citizen to another in justification of actions that affect the interests of others. In T.M. Scanlon’s terms, interpersonal morality is a system of “co-deliberation.” In a highly legalized society, the co-deliberation about what we owe to each other will frequently make reference to what the law permits or requires. To the extent that participating in a social practice of co-deliberation requires the assistance of experts in the law, lawyers do not perform merely an epistemic function but in fact constitute the relevant social practice along with rulers and citizens. If this relationship holds, it has considerable implications for the norms regulating the conduct of lawyers.

Highly recommended.

Koopman & Widen on a Reasonable Human Driver Standard for Automated Vehicles

Philip Koopman (Carnegie Mellon University) & William H. Widen (University of Miami - School of Law) have posted A Reasonable Driver Standard for Automated Vehicle Safety on SSRN.  Here is the abstract:

Current “safe enough” Autonomous Vehicle (AV) metrics focus on overall safety outcomes such as net losses across a deployed vehicle fleet using driving automation, compared to net losses assuming outcomes produced by human driven vehicles. While such metrics can provide an important report card to measure the long-term success of the social choice to deploy driving automation systems, they provide weak support for near-term deployment decisions based on safety considerations. Potential risk redistribution onto vulnerable populations remains problematic, even if net societal harm is reduced to create a positive risk balance. We propose a baseline comparison of the outcome expected in a crash scenario from an attentive and unimpaired “reasonable human driver,” applied on a case-by-case basis, to each actual loss event proximately caused by an automated vehicle. If the automated vehicle imitates the risk mitigation behaviors of the hypothetical reasonable human driver, no liability attaches for AV performance. Liability at-taches if AV performance did not measure up to the expected human driver risk mitigation performance expected by law. This approach recognizes the importance of tort law to incentivize developers to continually work on minimizing driving negligence by computer drivers, providing a way to close gaps left by purely statistical approaches.

Kochenov on the EU and the Dialogical Rule of Law

Dimitry Kochenov (CEU Democracy Institute, Budapest; CEU Department of Legal Studies, Vienna; Princeton University - Princeton School of Public and International Affairs) has posted Supremacy Rule of Law Undermines the European Union (Forthcoming in Marek Safjan (ed), Revival of the Rule of Law (Intersentia, 2024)) on SSRN.  Here is the abstract:

The Court of Justice is failing the dialogical Rule of Law test as it deploys the Rule of Law to pre-empt necessary dialogue and to disqualify substantive arguments of principle originating in other legal orders. The Rule of Law thus emerges as a trump card making the vital dialogue on which EU law directly depends impossible. Such deployment of the Rule of Law ruins the basic coherence of the EU legal system, as the Court does not measure itself by the same standards that it applies to the national courts, while embracing a multitude of conflicting approaches to the Rule of Law and judicial independence, steeply departing from EU law’s own established principles, as well as ECHR standards in Rule of Law cases. Such use of the principle is both dangerous and directly opposed to the very essence of European constitutionalism. It is an attack on the substance of the Rule of Law, as it opposes vital checks on the arbitrary power of the sovereign – in this case the Herren der Verträge. The abusive misuse of the Rule of Law rhetoric to render the EU less accountable and undermine the dialogical pluralist essence of EU constitutionalism is what I term ‘supremacy Rule of Law’.

Klein & Khoo on Religious Statements in Financial Contracts

Paul-Olivier Klein (Magellan, iaelyon, Jean-Moulin Lyon 3) & Shee-Yee Khoo (Bangor Business School, Bangor University) have posted Paying for Religion? The Effect of Religious Statements in Financial Contracts on SSRN.  Here is the abstract:

What happens when financial contracts contain religious statements? Financial prospectuses and contractual documentation of Islamic bonds often refer to sacred principles in unambiguous terms. We show that the use of religious references in these contracts is priced by investors. In general, religious priming leads to a reduction in the yield paid by issuers. The effect is sizeable and exists after controlling for diverse confounding drivers. It is not limited to debt value but spreads to equity value. It also varies across bond’s risk and primarily benefits less risky issuances. At the same time, priming excessively is sanctioned by investors. Securing investors’ attention early, building on a diverse religious rhetoric, and selecting rare religious words reinforce the effect. Additional tests consistently confirm the robustness of the findings.

Mik on AI Contract Formation

Eliza Mik (The Chinese University of Hong Kong (CUHK) - Faculty of Law; TILT; Melbourne Law School) has posted Much Ado about Artificial Intelligence or: the Automation of Contract Formation ((2022) 30 International Journal of Law and Information Technology 484) on SSRN.  Here is the abstract:

Every day, millions of decisions are made based on information provided by computers and millions of transactions are concluded automatically, by means or with the assistance of computer programs. Computers can accept payment and dispense products. Computers can also calculate the optimal price and predict the demand for the product. Technology enables us to automate a wide range of tasks involved in the process of forming contracts. Contrary to popular belief, such novel transacting practices are easily accommodated by existing legal principles, at least when it comes to the common law of contract. The latter is technology neutral and generally disregards the manner the parties’ statements come into existence. Considerable uncertainty would result if the statements we see on our computer screens could be disavowed on the basis that they were the product of mindless computer operations. This paper contends that legal analyses must start with the law, not with overdramatized descriptions of technology or the assumption that contract law cannot accommodate such.

Recommended.

Chabot on Delegation of Spending Power & Originalism

Christine Kexel Chabot (Marquette University Law School) has posted The Founders' Purse on SSRN.  Here is the abstract:

This Article addresses a new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau, and the Supreme Court has agreed to review its decision this term. Notwithstanding the fact that Congress authorized the Bureau’s budget “by law,” the Fifth Circuit held that this law violated the Appropriations Clause because it granted the Bureau substantial budgetary independence in two key respects: first, it afforded the Bureau broad discretion to self-direct its budget for an unlimited duration, and second, it granted the Bureau permanent funds that were drawn from interest-based earnings of the Federal Reserve system. The Fifth Circuit supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, section 9’s Appropriations Clause. Defenders of the Fifth Circuit’s ruling have likewise justified its holding with formalist and originalist arguments that the Bureau’s budgetary independence amounts to an unconstitutional delegation of legislative spending power. The broader debate about delegation of spending power extends beyond the Bureau and calls into question laws awarding similar budgetary independence to financial regulators such as the Federal Reserve as well as the Biden Administration’s ability to forgive student loans (and spend debt owed the government) “without specific statutory authorization.”

Originalist claims to a nondelegation doctrine that limits the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for general temporal limitations on Congress’s revenue and spending powers. Second, early congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit, and upon the recommendation of Secretary of the Treasury, Alexander Hamilton, early congresses granted an agency known as the Sinking Fund Commission power to self-direct a permanent fund that was drawn from interest-based earnings on debt held by the United States. To establish an affordable new federal government, early congresses also funded a majority of federal officers including core law enforcement officials and even a new agency through permanent and independently directed fees that were paid by private parties. This history shows that Article I, section 9 means what it says and requires only that Congress authorize spending “by law.” Critics who have questioned the constitutionality of broad delegations of spending power have strayed from the lessons of both text and history.

Highly recommended.

Izraeli on Religious Women and Multicultural Vulnerability

Sagy Watemberg Izraeli (Bar-Ilan University - Faculty of Law; Åbo Akademi University - Study of Religions; Hebrew University of Jerusalem - Philosophy, Politics, & Economics (PPE)) has posted Religious Women’s Paradox of Multicultural Vulnerability: Liberal-Democratic Mechanisms’ Failures and the Question of Membership on SSRN.  Here is the abstract:

Multiculturalism, legal pluralism, laws and rights of religious and cultural freedom – for half a century literature and legislation have contended profusely with their repercussions for women. For women members of the community, the very acquisition of collective rights by their communities frequently entails the forfeiting of individual civil rights – the “paradox of multicultural vulnerability”. The intersectionality of their communal membership, their womanhood, and the legal system to which they are subject, manifests in combined disadvantages, oppressions, and marginalisation as vulnerable members within the community. Liberal-democratic solutions to the paradox, however, continue to fail. The deference to human rights, to the values of autonomy, equality, and freedom, the adherence to international or transnational human rights’ and gender equality treaties, have not yet solved women’s paradox of multicultural vulnerability, at least not substantially. What is the obstacle to remediation that causes continuous contention between liberal-democratic approaches of multiculturalism and liberal-democratic principles of the human rights to those women members of the religious or cultural communities?

This paper aims to pave a significant step forward in understanding and rectifying the complexity of the paradox of multicultural vulnerability by identifying and offering a typology of the failures of liberal-democratic mechanisms attempted hitherto. Doing so will elucidate the underlying elements that interact together to give rise to the paradox. Underlying the typology, this paper will exhibit the etic standpoint that current liberal-democratic legal and academic literature maintain in their approach to the paradox of multicultural vulnerability. Subsequently, this paper suggests that the chronic failure of liberal-democratic States to remedy the paradox of multicultural vulnerability lies in the incongruity between the problem and the solutions attempted. Specifically, that the contentions of literature and legislation with the paradox of multicultural vulnerability fail to touch upon the three-tiered root of the paradox – pertaining to that triadic relationship of law-community-woman: 1. the lack of recognition of the role of liberal-democratic laws in producing the paradox; 2. the religious tenet of legitimacy that underscores the paradox and is constructed through the socio-legal interaction of the emic definition of the religious community and the etic legal one; 3. the misidentification of religious women’s normative claims as external to the religion rather than deriving from within their religiosity. This paper offers a new understanding of the paradox of multicultural vulnerability for implementation in both research and legislation, specifically regarding religious women. Finally, this paper will engage with the conceptualisations of religious membership interwoven in each root, and their legal implications.

Norton on Trustworthiness and the Media

Helen L. Norton (University of Colorado Law School) has posted Getting to Trustworthiness (But Not Necessarily to Trust) (3 Journal of Free Speech Law 7 (2023)) on SSRN.  Here is the abstract:

As ethicist and political scientist Russell Hardin observed, our willingness to trust an actor generally turns on our own experience with, and thus our own perceptions of, that actor’s motives and that actor’s competence. Changes over time and technology can alter our experience with a particular actor and thus our willingness to trust or distrust that actor.

This symposium essay focuses not on how to encourage the public to trust the media, but instead on how the media’ can behave in trustworthy ways--in other words, how its choices can demonstrate its trustworthy motives and competence. Examples include refusing to amplify destructive behavior. Disclosing data sources, evidence sets, the personal data that the media collects from its users and what it does with it. Demonstrating epistemic humility, by, for example, investing in self-education about scientific and other technical matters. Seeking out and responding to public feedback and scrutiny.

Auz on the Inter-American Court of Human Rights and Climate Change

Juan Auz (Tilburg Law School; Hertie School; Potsdam Institute for Climate Impact Research) has posted Climate Crisis and the Testing of International Human Rights Remedies: Forecasting the Inter-American Court of Human Rights (The Hague Academy's Centre for Studies and Research in International Law and International Relations Series (Forthcoming)) on SSRN.  Here is the abstract:

The climate crisis is already affecting and will continue to affect human and natural systems across the planet, especially in Global South geographies like Latin America and the Caribbean (LAC). Undoubtedly, this jeopardises entire communities’ enjoyment of human rights. In response to this ever-increasing challenge, international human rights courts and bodies have only recently started adjudicating some climate crisis concerns. So far, only one of these organs has specified obligations for states to appropriately address the climate crisis. Against this backdrop, this chapter will interrogate if international human rights remedies can contribute, in any meaningful manner, to tackle the climate crisis and if they could be redesigned for improvement. The Inter-American Court of Human Rights (IACtHR) case law with environmental dimensions will be scrutinised to provide a situated case study on how international human rights remedies are designed. The rationale of the IACtHR as a case study is that it has jurisdiction over most of LAC, a climate-vulnerable region, rendering it an excellent geographical candidate to test the tools of international law. Since climate litigation is still extraneous to the IACtHR, it is argued that its indigenous peoples’ rights case law is a good proxy for analytical extrapolation, given its rich discussions for collective environmental protection. This chapter will first introduce how environmental reparations have been dealt with in international human rights courts and bodies. Secondly, an analysis of the emergence of climate litigation before international human rights bodies and the associated remedial outcomes will be conducted. Thirdly, aiming to test the limits of human rights remedies in a concrete legal space, a more granular examination of the indigenous peoples’ rights case law before the IACtHR will be elaborated. Fourthly, based on the effectiveness of remedies in the examined case law, this section will put forward three climate litigation scenarios (mitigation, adaptation, and loss and damage) to propose options for remedial design. Ultimately, this chapter aims to anticipate the future of climate remedies at the IACtHR and imagine them in a way that seriously considers remedial relevance and effectiveness.

Likhovski on Jurisprudence and Nationalism in the British Empire

Assaf Likhovski (Tel Aviv University - Buchmann Faculty of Law) has posted Jurisprudence and Nationalism in the British Empire in the Early Twentieth Century: India, Egypt, and Palestine Compared (The English Historical Review (Forthcoming)) on SSRN.  Here is the abstract:

This article discusses works on jurisprudence produced by authors from three British-ruled territories (India, Egypt, and Palestine) in the early decades of the twentieth century. It argues that these works were part of a non-Western jurisprudential wave that appeared in different parts of the British Empire at the time. Legal scholars working in these territories were not passive recipients of legal ideas imported from the metropole: their works were more cosmopolitan than those produced in the United Kingdom, using ideas drawn from English thinkers but also referring to Continental and American historical and sociological theories of law. The use of such theories was combined with an interest in the ideas and values of local religious legal systems (Hindu law, Islamic law, and Jewish law, respectively). These systems were depicted as superior to Western law—not only because local legal scholars saw them as the historical source of Western jurisprudential conceptions but also because they were viewed as a possible source of collectivist values that would replace the individualist values of transplanted Western law. While there were many similarities between the works written in the three territories, the article also highlights certain differences in the way religious legal systems were viewed in the places examined.

Hoagland & Harpalani on Original Intent, Social Equality, and Affirmative Action

Jeffrey D. Hoagland (New Mexico Court of Appeals) & Vinay Harpalani (University of New Mexico - School of Law) have posted Original Intent, Racial Equality, and the Conundrums of Colorblindness (Maryland Law Review, Vol. 83, Forthcoming 2023) on SSRN.  Here is the abstract:

American constitutional and political discourse on race has long tied together originalism and social equality, intertwined with notions of federalism. In the recent affirmative action cases, Students for Fair Admissions (SFFA) v. Harvard and SFFA v. University of North Carolina at Chapel Hill, both parties have advanced originalist arguments and appealed to notions of social equality. This interplay is not new and actually predates the Fourteenth Amendment itself. We see it echoed in the rhetoric of the Lincoln Douglas Debates, one hundred sixty-five years ago. Here, Lincoln and Douglas both appealed to the original intent of the Founders and made claims about social and political equality of Black and White Americans, approaching these issues from different perspectives and linking them to competing visions of federalism. The affirmative action cases have similarly presented different views of original intent and equality, centered on the both the constitutionality and the fairness of government racial classifications. Taken together, the affirmative action cases and the Lincoln Douglas Debates demonstrate the uniquely American rhetorics that continue to dominate contemporary social and political debates on race.

Fontana on Washington as the Capital

David Fontana (George Washington University Law School) has posted The Democratic Problems with Washington as the Capital (24 Theoretical Inquiries in the Law, Forthcoming) on SSRN.  Here is the abstract:

Democracy demands a capital city that represents a country and is not removed from it. If the government is to be of the people and for the people, then the capital must be able to relate to the people—and the people to the capital. In the United States, democracy struggles not just because of what happens outside of and comes to Washington, but because of what happens inside Washington. The federal government, in other words, faces democratic problems because of the type of place that Washington is. There are many factors to consider in deciding where a country should be governed from, but the ability of the capital to understand the country it governs is certainly one of the most important of these factors. The goal of this symposium article is to consider the contemporary democratic crisis in these geographical terms.

Washington was initially a rural area meant to govern a rural country. It has gradually turned into a dynamic metropolitan area meant to govern a country featuring many—and many different—dynamic metropolitan areas. During its entire history, though, Washington has remained dominated by a single company: the federal government. A company town will struggle to attract and to cultivate the large range of people featured in the United States. Given that a company town struggles to satisfy the democratic demands of a capital, the question then becomes whether other types of places would better satisfy these democratic demands.

Zurn on Constitutional Interpretation and Public Reason

Christopher F. Zurn (University of Massachusetts Boston - Department of Philosophy) has posted Constitutional Interpretation and Public Reason: Seductive Disanalogies (in Public Reason and Courts, ed. Silje Langvatn, Wojciech Sadurski and Mattias Kumm (Cambridge University Press, Cambridge: 2020), 323-349) on SSRN.  Here is the abstract:

Theorists of public reason such as John Rawls often idealize constitutional courts as exemplars of public reason. This paper raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the United States Supreme Court, the paper argues that while it does engage in reason giving to support its decisions—as the public reason strategy suggests— those reasons are (largely) legalistic and specifically juristic reasons—not the theorists’ idealized moral-political reasons on matters of fundamental principle. But if constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The paper extends beyond the U.S. case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts.

I'm making an exception to my usual policy of posting only recently published or forthcoming papers.  Recommended.

Simon on Copyright, Moral Rights, and the Social Self

David A. Simon (Harvard Law School) has posted Copyright, Moral Rights, and the Social Self (Yale Journal of Law and the Humanities, Vol. 34, 2023) on SSRN.  Here is the abstract:

Moral rights—noneconomic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction.

On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the “harm” they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate question of whether and to what extent the Investment Theory is justified.

Recommended.

Bassok on the Rich Picture Approach to Comparative Constitutional Law

Or Bassok (University of Nottingham - Faculty of Law and Social Sciences) has posted The World of Constitutionalism is Not Flat (24.4 German Law Journal (2023) (Forthcoming)) on SSRN.  Here is the abstract:

In recent years, the emerging field of comparative constitutional law has been swept by a new approach with a scientific allure known as the Large-N approach. The methodology of this approach requires flattening the world of constitutional law by reducing the meaning of constitutional determinations into countable data. One of the difficulties in resisting this trend is that while many constitutional scholars have offered accounts that do not flatten the world of constitutional law, their methodology remains unarticulated and rarely discussed. Paul Kahn is one of the few scholars who offered an account of how to conduct non-doctrinal research of constitutional law. This Article aims to distil several principles of Kahn’s methodology, discuss its limitations, and demonstrate why it is superior to the Large-N approach. To achieve these goals, I chose to focus on three books on the German constitutional system that are based on dissertations written at Yale University, where Kahn teaches. Based on my discussion of these three books, I argue that Kahn’s methodology offers an approach which I dub the “Rich Picture” approach (or Rich-P). The Rich-P approach exposes that participants in a constitutional discourses understand constitutional materials, such as constitutional documents or judicial opinions, through a conceptual array that varies between legal orders. Without acknowledging the conceptual “eyeglasses” we wear when investigating constitutional determinations, measurements of the entire world of constitutionalism may lead to catchy soundbites and tweets, but to conclusions that are misleading at best.

Dagan & Samet on Massively Discretionary Trusts

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) & Irit Samet (King’s College London; King's College London - The Dickson Poon School of Law) have posted What’s Wrong with Massively Discretionary Trusts (138 Law Quarterly Review 629 (2022)) on SSRN.  Here is the abstract:

In this article we offer a theoretical analysis of the massively discretionary trust (MDT) from the perspective of the justice requirements imposed by a liberal conception of the state. We aim to show that conceptual, doctrinal or policy-driven analyses of this legal phenomenon cannot fully account for the profound way in which it undermines the legitimacy criteria of the trust relationship. Building upon our theory about the place of trusts in a liberal property regime, we aim to show why the MDT should not be recognised as a legitimate form of property holding in a liberal society.

Recommended.

Dane on Religious Exemptions

Perry Dane (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Weaponization, Polarization, and the Structure of Religious Exemptions on SSRN.  Here is the abstract:

In our current state of extraordinary national division, the two great opposing “teams” often act like magnetic poles, aligning an ever-increasing number of individual disputes into mere instances of the larger battle over ideology and identity. More than that, these powerful magnetic forces also amplify the controversies swept under their influence and even fundamentally distort the terms of those debates and their stakes.

This sign of the times is apparent in the current state of debates over religion-based exemptions and the relationship between religious rights and anti-discrimination norms. The old alignments in the debate over religion-based exemptions have shattered. Yet one thing remains the same. As has long been true and seems almost inevitable in the dynamics of the encounter between religion and state, the positions that both sides take, the questions they ask, and the language that they employ, have all taken on a certain symmetrical cast. Unpacking those symmetries in the current debate ends up challenging the analytic structure of the doctrine of religion-based exemptions in ways that are ways that are both deeply revealing and possibly intractable.

Halliday on Judges Under Stress

Terence C. Halliday (American Bar Foundation) has posted Judges Under Stress: Legal Complexes and a Sociology of Hope on SSRN.  Here is the abstract:

Interdisciplinary sociolegal scholarship over the past thirty years has demonstrated that the epochal struggle for political liberalism over all continents over the longue durée invariably implicates not only lawyers but also judges within a wider legal complex. This article brings into juxtaposition the comparative and historical research on legal complexes with the stresses confronted by judges in Central and Eastern Europe. The article proceeds in five parts.

First, based on comparative research, it offers a conceptual analysis of six distinctive meanings of judges and judiciaries as (i) single persons, (ii) conglomerations, (iii) institutions, (iv) collective actors, (v) cases, and (vi) symbolic ideals.

Second, it identifies varieties of stressors—adverse pressures on judges—that erode the legitimacy and efficacy of different categories of judges. Different classes of stressors appear to have affinities with the six ways that judges and judiciaries are understood and conceived.

Third, building on empirical evidence across the world in the past 400 years, with special reference to Egypt, Pakistan, Taiwan and Hong Kong in recent decades, it proposes that a theory of legal complexes sharpens focus on interactions among practicing legal professions that will influence the robustness of judges’ ability to cope with stress. Domestic legal complexes can include judges, private lawyers, government lawyers, legal academics and prosecutors. International legal complexes increasingly affect the viability of robust, resilient and adaptive judiciaries when they are under threat.

Fourth, it argues that evidence on legal complexes can move scholarship on judges under stress from static frameworks of social structures to the dynamics of a sociology of hope. Legal complexes offer structural resourcefulness and repertoires of action, including street demonstrations and public protests, media campaigns and boycotts, bar association declarations of support and granting of awards, to educating publics.

Fifth, the paper identifies four sets of contingencies that recur comparatively in legal complex efforts to relieve stress on judges and judiciaries. The many points at which judiciaries can be defended and promoted, the sheer profusion of ways that combinations of legal complexes can combine and contend for judiciaries, together conjoin to offer hope that often springs from a redemptive irony of repression by authoritarian rulers who seek to erode judicial authority and undermine a liberal-legal order.

Highly recommended.