Legal Theory Blog

Barker on Insuring Against Punitive Damages

Kit Barker (University of Queensland - TC Beirne School of Law) has posted Insured Punishment: Lamb v Cotogno (Chapter 6 in J Goudkamp and E Katsampouka (eds) Landmark Cases in the Law of Punitive Damages (Hart, 2023) pp 99-128) on SSRN. Here is the abstract:

This piece examines the potentially paradoxical question of whether it is (or should be) possible for a wrongdoer to insure himself or herself against an award of punitive damages. It does so through a detailed examination of the curious case of Lamb v Cotogno, decided by the High Court of Australia in 1987, in which a punitive award was upheld against a defendant who was assumed by all concerned to be fully insured for his tortious wrong.

The piece suggests that the reasons given by the High Court in that case for upholding the award (general deterrence of others, the prevention of vigilantism and the award's expressive, condemnatory value) are strained, to say the least, and that, when the pleading and proceedings of the case are properly understood, a modest sum of aggravated compensatory damages would have been much more appropriate. Although the precise question asked in Lamb is unlikely to be repeated in Australia any time soon, the High Court's reasoning about the underlying justifications for awards continues to have reverberations about the way in which they are understood in a wider range of cases.

The piece contains insights and historical material gratefully gleaned from two counsel who were originally party to the pleading of the case and defence in Lamb. It also contains a wider-ranging review of the insurability of punitive awards across a broader range of common law jurisdictions, both as a matter of fact and law. It further considers which, if any, of the aims of 'punishment' remain credibly achievable when the persons punished is insulated against an award's financial effects.

Huneeus on Non-Human Rights in Latin America

Alexandra Valeria Huneeus (University of Wisconsin Law School) has posted The Three Faces of Non-Human Rights (Oxford Handbook on Comparative Human Rights, Neha Jain and Mila Verstaag, eds) on SSRN. Here is the abstract:

This chapter analyzes the evolving relation of non-human rights and human rights law in Latin America, the region where they first emerged and have undergone the most development, and where human rights law plays a salient role at the domestic and regional level. A review of judgments, laws, and social movements reveals that justifications for extending legal rights beyond humans fall into three categories. First are claims based on the species-level attributes of an animal or other creature: there is a quality of the being in question that demands a certain type of ethical treatment. This type of justification echoes the structure of most arguments for human rights, including deontological, utilitarian, and capabilities approaches. But it extends the protection of rights to animals that share with humans an essential quality, such as the ability to suffer. Second are claims based on legal pluralism. Law in a multicultural state should give voice to the views of indigenous and tribal peoples as well as Western legal traditions. If indigenous or other peoples so request, states should grant legal personhood and rights to natural features or “earth beings” that non-Western peoples hold as persons, or kin, and with whom they live in relation. This is a form of epistemic justice that also provides indigenous peoples and other communities an extra measure of protection from extractive corporate activities. Third are claims based on a new ontology: Some argue that it is time to rethink the most fundamental commitments of Western thought and, specifically, to give a different moral meaning to the distinction and relation between humans and non-humans, as well as the distinction and relation between the living and non-living. Such a change is necessary not (only) as a matter of epistemic justice or legal pluralism, but because it more closely reflects emerging moral intuitions, and because it may help us forge a more sustainable way of life. Each of the three types of claims plays out in different ways in its relationship to human rights. While the first and second can be cast as extensions of existing human rights doctrine, the third aims to radically shift our major premises but is struggling to find legal coherence. The chapter’s main contribution is to introduce a typology of nature rights and use it to analyze the relation of nature rights and human rights. Scholarship needs to consider these differences in the argumentative structure because they have implications for many of the questions that we are asking of this emerging body of law, including questions of effectiveness, implementation, and impact on other areas of law.

The argument unfolds in three sections after the introduction. The first section introduces the three types of justification that underlie non-human rights laws and jurisprudence in Latin America. The second examines interactions between each type and human rights law, drawing on recent examples from Latin American judicial dockets. The final section concludes with a look towards next steps in non-human rights scholarship.

Hennington on Risk Assessment Algorithms and Pretrial Detention

Matt Hennington (University of Mississippi School of Law) has posted Show Me the Numbers: Due Process and Equal Protection Challenges to the Use of Risk Assessment Algorithms in the Pretrial Context on SSRN. Here is the abstract:

Technology brings great advances; however, in the legal field, technology can become used as a tool to perpetuate racial bias. Risk assessment algorithms provide that threat since judges have come to rely on them in various contexts. However, in the pretrial context, judges face the risk of incarcerating an innocent person based on a numerical risk assessment score, which deprives the defendant of his or her individuality and possibly perpetuates the assumption that people of color commit more crimes. Therefore, incorporating a critical race theory framework, a Due Process challenge to the use of these tools exists in the right to effective assistance of counsel as these tools provide an unfair advantage to the prosecution by hampering the defense counsel’s ability to present a narrative. Furthermore, a potential Equal Protection challenge exists to tools that explicitly use gender as a factor. Although no Equal Protection claim exists for a disparate impact of these tools on minority populations, the disparate impact has important public policy considerations beyond Equal Protection in efforts to reduce crime and foster trust between the police and minority communities. Ultimately, the use of risk assessment algorithms must comply with the Constitution, and the stories of each individual defendant should always have the chance to be heard.

Becker & Ahlborn on Irish Constitutional Identity and International Investment Agreements

Michael A Becker (Trinity College Dublin - School of Law) & Christiane Ahlborn (Trinity College Dublin) have posted Protecting Irish Constitutional Identity on the International Plane: Costello v Government of Ireland on SSRN. Here is the abstract:

In Costello v Government of Ireland, the Irish Supreme Court held that ratification of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its member states would infringe upon Irish juridical sovereignty. The judgment reflects a more general trend of rejecting international investment agreements . With the aim of drawing out the implications of Costello for Ireland’s international relations, this article assesses Costello in its comparative European and international context, taking into account the interaction between different legal orders. Part II discusses the relationship between sovereignty and constitutional identity, which is central to the Supreme Court’s finding that ratification of CETA would infringe the Irish Constitution. Based on the argument that CETA operates as a matter of international law, Part III explains that CETA does not establish a parallel jurisdiction that would deal with the same disputes as Irish courts under Article 34 of the Constitution. Part IV examines the Supreme Court’s reasoning in light of Ireland’s other international commitments, including its consent to dispute settlement by international courts and tribunals such as the European Court of Human Rights and the International Court of Justice. Part V discusses difficulties with the proposal to amend the 2010 Arbitration Act and suggests alternative ways of reconciling CETA with Irish sovereignty, particularly via a requirement to exhaust local remedies before pursuing claims before a CETA tribunal.

Recommended!

Tolmie & Stubbs on Battered Woman Syndrome and Gender Bias

Julia Tolmie (University of Auckland - Faculty of Law) & Julie Stubbs (University of New South Wales (UNSW, Australia) - Faculty of Law) have posted Battered Woman Syndrome in Australia: A Challenge to Gender Bias in the Law? on SSRN. Here is the abstract:

This chapter examines the use of battered woman syndrome in Australian cases where women have been charged with an offence committed in response to, or under the influence of, domestic violence. It outlines the rationale for using battered woman syndrome and questions whether evidence concerning the syndrome has been effective in challenging gender bias in the law.

McCabe on Climate Change Litigation and Standing

Margaret Sova McCabe (University of Arkansas - School of Law) & Jordan C. Budd (University of New Hampshire School of Law) have posted Standing To Enforce The Future: Citizen Suits And Climate Change (Boston College Law Review (Forthcoming 2025)) on SSRN. Here is the abstract:

Climate change poses an incalculable threat to human civilization. To forestall or perhaps avert its most devastating consequences, “[d]eep, rapid and sustained” reductions must be made in greenhouse gas (GHG) emissions that are fueling the climate crisis. Despite recently enacting the first significant federal legislation to address this threat, the United States – which generates more GHG emissions than any nation but China – continues to fall far short of the requisite reductions. Notwithstanding a political environment that likely precludes further legislative action in the immediate future, this Article takes as its starting point the premise that these circumstances might change, and that Congress might choose to use its lawmaking powers to significantly expand federal efforts to reduce the nation’s GHG emissions.

Were Congress to do so, and if its response included direct restrictions on GHG emission activities in addition to incentive and subsidy arrangements, federal policy would require powerful accompanying enforcement mechanisms to reach the vast number of GHG sources subject to regulation. Among the most far-reaching enforcement tools at the disposal of Congress is its authorization of private suits to restrain or penalize prohibited conduct. Such actions, referred to as citizen suits, are an integral part of most federal regulatory programs and would likely play an important role in any federal effort to broadly regulate GHG emissions. This central enforcement mechanism, however, likely faces an insurmountable hurdle in the context climate-change policy: the increasingly restrictive standing doctrine of the current Supreme Court. To establish standing to sue, a private enforcer must meet the Court’s highly restrictive test for Article III standing, including proof of a causal association between the requested relief and the substantial remediation of the litigant’s injury. For the Justices who now control the Court, litigation that makes incremental progress toward the future resolution of a vast and ongoing injury is not enough to justify the exercise of federal jurisdiction.

The injuries caused by climate change result from the collective activity of an incalculably vast number of GHG emitters across the world. Any effort to fully remediate climate-related injuries will necessarily require a similarly vast and collective global intervention – including, potentially, citizen suits that individually target just a small proportion of overall global GHG emissions. Such suits thus must rest on the principle that Article III permits incremental relief that, in the aggregate, helps turn the tide against climate change. As this Article explains, it is highly likely that a majority of the current Court will repudiate that proposition.

In view of this impediment to private enforcement, the Article proposes that Congress consider pairing, whenever possible, direct regulatory restrictions on emissions activities with parallel restrictions on associated prerequisite activities. GHG emissions arise from economic arrangements that often involve activities that inflict harms unrelated to climate change – for example, localized environmental and health injuries arising from the processing, transportation, and distribution of methane-emitting cattle. Litigants separately harmed by such prerequisite activity will meet the requirements of Article III standing, since the relief they seek will directly – not incrementally – remedy their separate injuries. Accordingly, legal restrictions on those prerequisite activities would be subject to citizen suits based on the injuries they directly inflict, with the consequence of restricting dependent but otherwise nonjusticiable emission activities as well.

The Article illustrates how this approach might work in the context of regulating the cattle industry, which accounts for a significant proportion of GHG emissions in the United States. In addition to direct regulation, which would not support standing for private enforcement, the Article describes how separate regulatory restrictions on concentrated animal feed operations (CAFOs) would effectively reduce methane emissions associated with cattle by constraining the industry’s prerequisite production and distribution channels. Since CAFOs inflict a variety of localized environmental and health injuries as a consequence of their massive scale, individuals subject to such harms would have standing to bring citizen suits to challenge their operation – with the collateral effect of restricting a primary source of GHG emissions.

Fehr on "Search and Seizure" by Diab & Hunt

Colton Fehr (University of Saskatchewan - College of Law) has posted Book Review of Search and Seizure by Robert Diab and Chris Hunt (2025) (47 Manitoba Law Journal (forthcoming)) on SSRN. Here is the abstract:

This book review discusses Robert Diab and Chris Hunt's recent book publication, "Search and Seizure." Irwin Law’s “Essentials” series is deservedly among the most populous on bookshelves in Canadian law schools, libraries, and offices. While the series typically provides concise overviews of broad topics like criminal or constitutional law, it more recently has begun to include editions on particularly complex constitutional rights protected under the Canadian Charter of Rights and Freedoms.1 Professors Robert Diab and Chris Hunt’s recent addition on the protection against unreasonable search and seizure provided in section 8 of the Charter falls into the latter category. Their contribution is most welcome given the rapidly evolving nature of the jurisprudence interpreting and applying this notoriously complex right. In light of these challenges, Justice Martin captures the contribution made by the book perfectly in her foreword: “this excellent book… provides a precise and digestible presentation of the right to privacy and the jurisprudence interpreting section 8 of the… Charter 2."

Osofsky on Wellness and Tax

Leigh Osofsky (University of North Carolina (UNC) at Chapel Hill) has posted Wellness and The Tax Law (Georgia Law Review (forthcoming)) on SSRN. Here is the abstract:

The tax law has long provided extensive subsidies for "medical care." These subsidies cost the government hundreds of billions of dollars a year. The definition of medical care, which is at the heart of these subsidies, originated many decades ago, at a time when there was little to no conception of wellness.

Times have changed in the medical world. Medical science now emphasizes that wellness practices, like exercise, meditation, and social connection, have an important impact on physical as well as mental health, including by playing a significant role in preventing and treating disease. Under the tax statute, medical care includes "treatment. .. or prevention of disease." The tax law nonetheless disallows subsidies for wellness expenditures under the theory that they are "merely beneficial to general health." This tension between medical science and tax law demands that we reappraise tax law's medical care subsidy.

This Article engages in that reappraisal. It asks what justifies tax law's extensive medical care subsidy and whether it remains justifiable today. The traditional justification for tax law's medical care subsidy is that medical care is different from consumption. As a result, when tax law subsidizes medical care, even in a regressive way, it is not subsidizing spending on personal pleasure or regular, personal maintenance; rather, it is subsidizing compulsory expenses that restore a loss. Yet, the new medical science around wellness reveals that what we have long thought of as pure consumption constitutes medical care. Moreover, changes in the scope of the subsidy over time have resulted in tax law subsidizing many items that are far from compulsory, catastrophic medical expenses. The result is that tax law’s medical care framework subsidizes some forms of consumption, but not others, in a haphazard, incoherent, and ultimately unjustifiable way.

After exploring the problems with tax law’s medical care subsidy, this Article offers three potential paths forward: an expansion of tax law’s medical care subsidies to more fully account for all expenses that prevent or treat disease; a contraction of tax law’s subsidies to more closely match justifiable goals, such as insuring against catastrophic and compulsory medical expenses; and a progressive wellness credit. This Article finds that the third approach best accounts for how consumption can be medical care and best responds to the ways that higher-income taxpayers benefit from higher privilege to consume.

Gyory on the Pregnant Workers Fairness Act

Madeleine Gyory (New York University School of Law) has posted The Reasonable Pregnant Worker on SSRN. Here is the abstract:

Pregnant workers often need changes to their work responsibilities to stay healthy during pregnancy while earning a needed paycheck. Congress passed the Pregnant Workers Fairness Act (PWFA) in December 2022, entitling many workers for the first time to "reasonable accommodations" for their pregnancy, childbirth, and related medical conditions, so long as they do not impose an "undue hardship" on their employer. The PWFA dictates that the law's key terms, "reasonable accommodation" and "undue hardship," should be construed as they are under the Americans with Disabilities Act (ADA), ADA caselaw, and new PWFA regulations issued by the Equal Employment Opportunity Commission (EEOC) in April 2024. But what if these sources conflict? ADA caselaw frequently departs from the ADA's statutory and regulatory text, and is in tension with the EEOC's new PWFA regulations, producing a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants.

This Article is the first to address how the chaotic ADA doctrine will impact implementation of the PWFA and to consider how ADA caselaw should be read in conjunction with the EEOC's new PWFA rule. Anticipating future litigation, this Article proposes a framework for litigants and courts assessing reasonable accommodation claims under the PWFA that adapts ADA precedent to account for the PWFA regulations. It argues that the PWFA rule is entitled to some deference under Loper Bright Enterprises v. Raimondo because Congress delegated specific authority to the EEOC to interpret the phrase "reasonable accommodation." Finally, this Article demonstrates why, under its proposed framework, the PWFA will often require employers to accommodate temporary transfers, remote work, and leave, notwithstanding conflicting ADA caselaw.

Recommended.

de Britto on the Social Function of Copyright

Vitoria Maturana de Britto (Munich Intellectual Property Law Center (MIPLC)) has posted The Social Function of Copyright on SSRN. Here is the abstract:

This thesis deals with the need to recognize a balance between the individual rights conferred on authors in the copyright system and the common interests of society. It investigates the application of the social function to copyright. In this sense, this theory indicates that no individual right should be considered absolute and that there should always be a balance between individual rights and the common interests of society. This approach also goes through the concepts of common interest and what this balance of interests means.

The common interest refers to the general social interest, not the sum of individual interests. Furthermore, it is not necessarily the interest imposed by a government, but a social objective. The balance that must be made is between individual rights and the common interest, which can also be identified through individual rights that have been recognized based on common objectives, such as fundamental rights.

In the context of copyright, based on its justifications and the limits and exceptions already established in legal systems, we analyze its common interest in promoting the cultural development of society, as a way of contributing on a general and personal level to the construction of individuals' personal perception. Because of this common interest, there are two rights, the right of access and the right of creation/reuse, which must be balanced against the exclusive rights of authors of artistic and literary works.

Finally, let's look at the Pelham case, judged by the CJEU, as an example of the need for greater attention to be paid to the application of the social function to copyright, in the context of sampling techniques in the music industry.

Sevel on the Rule the Values of the Rule of Law

Michael Sevel (The University of Sydney - Faculty of Law) has posted The Values of the Rule of Law (Michael Sevel (ed.), The Routledge Handbook of the Rule of Law (2025)) on SSRN. Here is the abstract:

Is the rule of law worth the trouble? Why should anyone want to live in a society in which it is realized? When it is achieved, what improvement has been made? And what exactly has been improved? My aim here is to begin to develop a general, analytical classificatory scheme for the wide variety of claims about why and how the rule of law is valuable. This will be informed by some standard concepts and distinctions from moral and political philosophy, the traditional home to long-standing debates about value as such. In developing the scheme, it will become apparent that there are persistent ambiguities in common claims about the rule of law's value. The intended purpose of the scheme is to begin to resolve such ambiguities.

Recommended.

Linna et al on Deepfakes and National Security Cases

Daniel W. Linna Jr. (Northwestern Pritzker School of Law & McCormick School of Engineering), Abhishek Dalal (Northwestern University - Northwestern Pritzker School of Law), Chongyang Gao (Northwestern University), Paul W. Grimm (Duke University School of Law), Maura R. Grossman (University of Waterloo - David R. Cheriton School of Computer Science; York University - Osgoode Hall Law School), Chiara Pulice (Northwestern University), V.S. Subrahmanian (Northwestern University), & Hon. John Tunheim (United States District Courts) have posted Deepfakes in Court: How Judges Can Proactively Manage Alleged AI-Generated Material in National Security Cases on SSRN. Here is the abstract:

Dall-E. ChatGPT. GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI generated content have proven to be unreliable, and also biased. Humans have also proven to be poor judges of whether a digital artifact is real or fake. There is no foolproof way today to classify text, audio, video, or images as authentic or AI generated, especially as adversaries continually evolve their deepfake generation methodology to evade detection. Thus, the generation and detection of fake evidence will continue to be a cat and mouse game. These are not challenges of a far-off future, they are already here. Judges will increasingly need to establish best practices to deal with a potential deluge of evidentiary issues.

We will discuss the evidentiary challenges posed by Generative AI using a civil lawsuit hypothetical. The hypothetical describes a scenario involving a U.S. presidential candidate seeking an injunction against her opponent for circulating disinformation in the weeks leading up to the election. We address the risk that fabricated evidence might be treated as genuine and genuine evidence as fake. Through this scenario, we discuss the best practices that judges should follow to raise and resolve Generative AI issues under the Federal Rules of Evidence.

We will then provide a step-by-step approach for judges to follow when they grapple with the prospect of alleged AI-generated fake evidence. Under this approach, judges should go beyond a showing that the evidence is merely more likely than not what it purports to be. Instead, they must balance the risks of negative consequences that could occur if the evidence turns out to be fake. Our suggested approach ensures that courts schedule a pretrial evidentiary hearing far in advance of trial, where both proponents and opponents can make arguments on the admissibility of the evidence in question. In its ruling, the judge should only admit evidence, allowing the jury to decide its disputed authenticity, after considering under Rule 403 whether its probative value is substantially outweighed by danger of unfair prejudice to the party against whom the evidence will be used. Our suggested approach thus illustrates how judges can protect the integrity of jury deliberations in a manner that is consistent with the current Federal Rules of Evidence and relevant case law.

Rappaport on the American Creed and Constitutionalism

Aaron J. Rappaport (UC Law, San Francisco) has posted The American Creed and the Constitutional Order (58 Creighton L. Rev. __ (2024)) on SSRN. Here is the abstract:

Liberal democracy faces an existential threat in the United State today. Political polarization and the rise of far-right extremism both raise questions about the institutional structure’s continuing viability. For the first time in recent memory, Americans are questioning whether the nation might ultimately become undemocratic, illiberal, or both. This essay explores a neglected cause of this political crisis and, more importantly, offers a possible long-term path forward.

The underlying roots of the nation’s political crisis lie in the institutional structure of liberal democracy itself. That core structure inevitably generates deep anxieties and grievances, concerns that are intensified by two additional factors –the promulgation of illiberal ideologies, which validate the sense of grievance, and the use of modern propaganda techniques, which spread ideologically-infused messages widely and effectively. Grievances, ideologies and propaganda combine to generate a cycle of radicalization that drives citizens towards extremism.

The only real solution to this problem is, perhaps counterintuitively, an ideological one. Only a compelling ideology of liberal democracy can ameliorate the sense of grievance, counter the illiberal ideologies, and inoculate the public against propaganda. The endeavor to identify such an ideology inevitably leads to the American Creed, the core ideals that were thought to underlie the American experiment. But as this essay argues, the American Creed as conventionally understood is too vague and conflicted to offer a solid foundation upon which to build America’s complex institutional structure.

This paper concludes by articulating a set of requirements that a compelling ideology must possess. The effort serves as a preliminary step towards the articulation of a new and more compelling American Creed.

Elliott on Consumer Financial Protection Bureau v. Community Financial Services Association of America

E. Donald Elliott (Yale University - Law School; Antonin Scalia Law School) has posted Monomaniacal Textualism Undermines Congress's Power of the Purse on SSRN. Here is the abstract:

No structural principle of our government is more fundamental than that the House of Representatives, the part of our national government closest to the people, controls the "power of the purse" to raise and spend money. However, in its Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd. decision, the U.S. Supreme Court upheld a funding mechanism whose only purpose was to make it more difficult for a future House with a different political composition to use appropriations riders to rein in initiatives by the CFPB with which it disagrees. The author contends this erroneous result was a consequence of a jurisprudence of "monomaniacal textualism," which carries a reform too far by considering only the wording and history of constitutional provisions but not their purposes. The article further argues that in considering institutions such as the Administrative State which did not exist at the time the Constitution was adopted, courts should consider the "spirit" as well as the text of the Constitution. It further argues that courts had been using common law methods to interpret colonial charters for a century and a half prior to the ratification of the Constitution, and that by vesting them with "the Judicial power" the drafters and ratifiers of the Constitution conferred on the courts the power to continue doing so.

Agarwal on the Politics of Family Law in India

Akshat Agarwal (Yale Law School) has posted Supriyo and the Politics of Indian Family Law (Indian Law Review (Forthcoming 2024)) on SSRN. Here is the abstract:

The Supreme Court of India's recent rejection of marriage equality in Supriyo Chakraborty v Union of India marks a break from the court's previous decisions on LGBTQ+ rights. Despite doctrinal advances in the court's liberty and equality jurisprudence, it ruled against the petitioners. I argue that a significant way of understanding Supriyo is by locating it in the longer history and politics of family law. Indian family law has long been a site of tension about the precise scope of the State's authority over the family. These tensions have been visible in debates about the constitutionality of religious personal laws and the enactment of a uniform civil code to replace existing family laws. The competing visions of the State's relationship with the family in Supriyo's majority and minority opinions exemplify these tensions. The outcome in Supriyo is thus closely implicated in and influenced by the longue duree of Indian family law.

Synodinou on Digitalization and EU Copyright Law

Tatiana Synodinou (University of Cyprus) has posted Access Restrictions in a Dematerialized World: An EU Copyright Law Perspective on SSRN. Here is the abstract:

Digitalization has radically transformed the way we understand and enjoy property. The function of property has changed. It has been transformed into a right to administer access to resources, such as experiences or functionalities. In other words, we do not need physical possession in order to enjoy it. The concept of property is intrinsically linked with the idea of control over an object. This control and the declaration of the intention to exercise this control can take various forms. From lockers to walls, fences or “no trespass” warnings, the holder of the right sets the terms of access to the property by third parties. Copyright law, as a special kind of “property”, also been subject to the same principles and philosophy. Before digitalization, access controls to the intangible work or other copyright-protected subject matter were exercised through the physical control of the tangible medium incorporating the work (the book, the videotape, the cassette tape). The dematerialization of the medium has created the need to exercise the control over the works in immaterial ways, through technological means. The rise of the Internet and file sharing led to an increase in digital piracy and to the significant development and application of digital rights management (DRM), which has gradually become standard for the distribution of digital content. DRM is a flexible concept and comprises any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorized by the right holder. The reality of controlling the use of works has been viewed by legal commentators as the foundation of a new legal prerogative that exceeds the limits of the classic legal monopoly. This is the right of access or, more generally, the right of use, which is the legal expression of the control of the "consumption" of works. Access restrictions in copyright law have been linked to the history and the controversies of traditional DRM: incompatibility and interference with usage, technical difficulties, even de facto control of uses out of the perimeter of the copyright monopoly on the basis of an exception, the term of copyright protection or the inherent limitations principle of non-protection of the ideas and no protection for facts and simple information. However, nowadays the control of access (or, if we want to use more doctrinal terms, the “right of access”) is materializing in new and various ways. In a dematerialized world, access restrictions mechanisms might have become more flexible and user-friendly, but they still trigger debates on the stifling of creativity, innovation, consumer rights and the social construct of copyright. I have divided my presentation into three parts. This division is inspired by the three classic dimensions regarding the application of law: the person, the place and time. By analogy, the concept of “access restrictions” has evolved into a complex techno-legal reality which comprises these dimensions: personal (who is authorized to have access by the right holder), geographical (for which territory the access is or is not permitted), and temporal/chronological (when and for how long the access is or is not permitted). Accordingly, in the first part of this article, the implicit legal recognition of the access right through the broad interpretation of the right of communication to the public by the Court of Justice of the European Union (CJEU) is analyzed (1). The second part focuses on the geographical dimension of access restrictions in the EU (mainly geo blocking and its impact on EU copyright law) (2). The third part explores the temporal dimension of access restrictions and specifically their impact on the EU cultural sector (3).

Askitas on Law, Theater, and Sexual Identity

Giorgos Askitas (Université Sorbonne Paris Nord) has posted Law through Theatre: The Trans-judicial and Trans-theatrical Approach to Sexual Identity on SSRN. Here is the abstract:

This paper explores the intersection of law and theater in understanding sexual identity, termed "transjudicial" and "transtheatrical" approaches. It examines how theatrical techniques and performances can illuminate legal constructs and societal norms surrounding sexual identity. By analyzing case studies and theoretical frameworks, the study reveals the performative aspects of both legal and social narratives, proposing a more nuanced comprehension of sexual identity through the lens of theatricality. This interdisciplinary approach aims to enrich legal theory and practice by incorporating insights from the performing arts.

Balser, Weaver, & Jane on Unauthorized Practice of Law and Domestic Violence

Cayley Balser (James E. Rogers College of Law), Erin Weaver (University of Arizona - James E. Rogers College of Law), & Stacy Rupprecht Jane (University of Arizona - James E. Rogers College of Law) have posted The Potential of Unauthorized Practice of Law Reform to Advance Domestic Violence Advocacy: Methods and Findings on SSRN. Here is the abstract:

Ninety-eight percent of low-income domestic violence survivors experienced at least one additional civil legal problem in the past year, and 87% experienced at least five. 88% of low-income survivors receive inadequate or no legal help. Survivors may receive legal navigation assistance from DV advocates positioned at organizations providing support services to survivors, but DV advocates are trained to give legal information, not legal advice, in order to comply with unauthorized practice of law (UPL) restrictions. To chart the national domestic violence legal service landscape under the current UPL regime, this Toolkit addresses five research questions:

1. Nationally, what gaps in their ability to help survivors do DV advocates experience when they limit their help to legal information, not legal advice?
2. Do DV advocates think UPL reform and the ability to give limited-scope legal advice as part of their services would be helpful to them and the survivors they serve?
3. What civil legal needs do DV advocates most want/need to advise DV survivors regarding?
4. What additional legal training would DV advocates want and need to feel equipped to give limited-scope legal advice?
5. What do subject matter experts consider the best practices for lay and licensed legal advocacy for DV survivors, in areas such as training/certification, supervision/mentorship, and professional responsibility?

This project was divided into two parts. In this Part One mixed methods study, the research team answered the five research questions through data collected across 85 interviews and 191 surveys with DV advocates, DV advocacy organization leaders, and subject matter experts across the US. In Part Two the research team worked from the data and research collected in Part One of this project and applied design-thinking and user-experience UX) methodologies to layer this DV-specific research with a database of the 50 states' UPL restrictions and exceptions and a jurisdiction-agnostic guide to data-driven UPL reform using the DV research as an example study. The Domestic Violence Advocacy Policy Toolkit inventories the 50 states' unauthorized practice of law restrictions and exceptions to those restrictions and explores the impact of UPL restrictions on legal services for domestic violence survivors. At publication, the Toolkit was shared as a tangible deliverable designed for anyone who wants to build the bench of community members who can know and use the law to advance equal justice. Grounded in the issue of domestic violence as a case study, the Toolkit is particularly a resource for advocates, organization leaders, lawyers, and survivors interested in advancing UPL reform in their state. This Toolkit can be used to encourage UPL reform in any jurisdiction.

Stump on Ecosocialism

Nicholas Stump (West Virginia University - College of Law) has posted Ecosocialism, Degrowth, and Global South Thought: Critical Legal Transformations (49 William & Mary Environmental Law and Policy Review  (forthcoming 2025) on SSRN. Here is the abstract:

This Article explores how Critical Legal Research (CLR) can help drive transformations of our ecological political economy towards true system change. CLR, in the first place, unveils how the hegemonic legal research regime is structured to support dominant societal interests (i.e., white patriarchal capitalism). CLR helps to unveil these dynamics, while also offering novel and potent approaches to help transcend this regime in ultimate pursuit of radical social change. These transformative approaches include reliance on diverse alternative resources and adoption of collectivist and grassroots-based research approaches. After articulating the CLR framework, this Article explores its potential in the context of leading and intertwined bodies of theory for transformative change: ecosocialism, degrowth, and Global South and Indigenous thought. Next, this Article offers concrete avenues to help pursue such emancipatory change—i.e., specifically focusing on the popular conception of an "ecosocialist transition." Ecosocialist transition strategies include non-reformist reforms, dual power, a radical just transition, and joining ecosocialism with a broader global movement of movements. As this Article contends, such ecosocialist transition strategies can be powerfully informed by CLR via embedding CLR within bottom-up forms of socio-legal praxis, such as radical movement lawyering. Ultimately, such CLR praxis constitutes an emerging and vital, yet still largely underutilized, dimension in the struggles to combat white patriarchal capitalism and to pursue ecologically viable and socially emancipatory futures.

Afrouzi on Leveling Downing Legal Resources and Accuracy

Amin Ebrahimi Afrouzi (UCLA School of Law - UCLA School of Law; Yale Law School) has posted Leveling Down Legal Resources: Why Epistemic Arguments Fail (Legal Theory, Forthcoming). Here is the abstract:

The rich evade conviction more often in criminal trials than the poor. They also win more often in civil cases against the poor. Given that money buys better lawyers and better lawyers are instrumental to winning in adversarial trials, the rich have a structural advantage in laissez faire trial systems. Such inequality is concerning. In a landmark paper, Alan Wertheimer argues that we should level down legal resources in civil cases, on the basis that doing so increases the adversarial system's accuracy, that is, it's chance of reaching correct decisions. In a more recent paper and along similar lines, Shai Agmon also advocates that given some constraints of adequacy, legal resources should be leveled down in both civil and criminal cases. This paper aims to show that such arguments fail, because leveling down legal resources could decrease a trial system's accuracy, making it worse by Wertheimer's or Agmon's own lights.

Highly recommended.

Clarke on the State/Party Distinction in China

Donald C. Clarke (George Washington University - Law School) has posted Law and the Political System in Xi Jinping's China: The Decline of the Party/State Distinction on SSRN. Here is the abstract:

This chapter examines the relationship between China’s legal system and its political system in the Xi Jinping era. It locates legal institutions within the broader political system and looks at two important Xi-era reforms--the establishment of Supervisory Commissions and efforts to professionalize the judiciary. Addressing in particular the questions of whether there is a meaningful line between the legal and the political and whether China has, in the words of Carl Minzner, “turned against law,” it concludes that the Party is significantly downgrading, and perhaps abandoning, any effort to maintain a distinction between politics and law and between the Party and the state. The Xi administration has doubled down on and affirmed the absolute primacy of politics and the Party over legal institutions and legal standards.

This chapter has been published as “Law and the Political System in Xi Jinping's China,” in Daniel Lynch Stanley Rosen (ed.), Chinese Politics: The Xi Jinping Difference (Routledge 2024): 17-43.

Ioffe on "The Politics of Crisis-Making. Forced Displacement and Cultures of Assistance in Lebanon" by Carpi

Yulia Ioffe (University College London; University of Oxford) has posted Review: The Politics of Crisis-Making - Forced Displacement and Cultures of Assistance in Lebanon by Estella Carpi on SSRN. Here is the abstract:

Estella Carpi's book 'The Politics of Crisis-Making. Forced Displacement and Cultures of Assistance in Lebanon' offers a timely exploration of chronic crises and refugee influxes in Lebanon. Given the reignited conflict in the Middle East and the lack of any foreseeable resolution, the book is bound to become essential reading for scholars, policymakers, and humanitarian workers seeking insight into the region. Moreover, as I will elaborate later, the arguments and observations in the book hold relevance beyond Lebanon, offering critical perspectives on humanitarian systems and interventions in need of urgent reform.

Mandal on International Law and Climate-Induced Gender Violence

Moumita Mandal (TERI School of Advanced Studies) has posted Role of International Law to End Climate-Induced Sexual and Gender-Based Violence: A Critical Analysis of Recommended Solutions on SSRN. Here is the abstract:

Climate change is a threat to the existence of humans and other beings on Earth. Though all human beings are affected by climate change, women and girls suffer the most. Women are subjected to different forms of sexual and gender-based violence (SGBV) during and after natural calamities. They are exposed to SGBV due to the weak or absence of social, economic, and political security and the culture of widespread impunity to the perpetrators. To date, no specific international legal instrument deals with SGBV against women. It is found that climate change exacerbates SGBV against women and girls. The subject-specific international human rights treaty, e.g., the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), deals with the issue of SGBV under the rubric of discrimination. It reduced the effectiveness of the CEDAW against SGBV. The texts of the three international legal instruments relating to climate change (1992 UNFCCC, 1997 Kyoto Protocol, and 2015 Paris Agreement) do not address this issue. It has been given little attention only through the decisions of the Conference of the Parties of the UNFCCC. It is a new challenge for all and a global common concern. Now the question is what is the solution to this global problem? The soft and hard international laws provide a few solutions or remedies. Also, many institutions are trying to find solutions and regularly providing recommendations and suggestions. This study has discussed the causal connection between climate change and SGBV as a part of the discussion of the rise of ecofeminism; critical analysis of solutions recommended by international law and different institutions; and identified a few possible solutions that may be possible to implement partially to end climate-induced SGBV.

Williams on Regression and Demographic Shifts

Ryan T. Williams (Duquesne University School of Law) has posted The Great Regression (The Michigan State Law Review, 2024)) on SSRN. Here is the abstract:

The United States has historically been dominated by affluent White male leadership. However, recent decades have witnessed significant demographic and sociopolitical shifts. The civil rights movement and landmark decisions like Roe v. Wade paved the way for women and underrepresented minorities to enter the white-collar workforce and rise to prominent positions. Concurrent with these advancements are demographic projections indicating America will become a majority-minority nation within the next twenty years, causing the predominantly White male establishment to become acutely aware of their diminishing sociopolitical influence. This article scrutinizes recent Supreme Court's decisions, which appear to be reactionary measures. It examines how the seminal rulings of Twombly, Iqbal, Dobbs, and Students for Fair Admissions, have systematically undermined the progress of women and minorities by imposing more stringent requirements for discrimination lawsuits, stripping women of reproductive rights and eliminating race as a factor in college admissions. These judicial decisions exacerbate existing disparities at the intersections of gender, race, and class, and intentionally embed systemic inequity within the legal framework. This article delves into the broader implications of these rulings, arguing that they represent a strategic effort to restore White male hegemony within power structures. By analyzing the historical context and legal nuances of these decisions, this article offers a critical perspective on the ongoing struggle for equality and the subtle mechanisms through which power is retained. This exploration is essential for understanding the current and future landscape of American sociopolitical dynamics and the role of the judiciary in shaping these outcomes.

Krishnamurthy on the Law of the Sea and the Internet

Vivek Krishnamurthy (University of Colorado at Boulder - University of Colorado Law School; Harvard University - Berkman Klein Center for Internet & Society) has posted Anchoring Digital Sovereignty (Chicago Journal of International Law, Vol. 25.2 (forthcoming Jan. 2025)) on SSRN. Here is the abstract:

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet’s infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world’s democracies to keep the Internet free, open, and global; yet it is not the only way that international law knows to define the powers of a state.

Drawing from the law of the sea, this Article argues that we should anchor the nature of state authority in cyberspace in the limited sovereign rights that coastal states possess in the waters off their shores. Unlike the plenary powers that sovereignty vests in states over their entire land territory, a coastal state’s sovereign rights weaken the further one goes out to sea, and they are subject to the rights of other states (and of their nationals) to engage in certain peaceful uses of such waters. By redefining state authority over cyberspace in terms of layers of sovereign rights that are subject to the digital rights of others, states can enact legitimate online regulations within international legal constraints that preserve the Internet’s free, open, and global character.

Very interesting and recommended!

Luban on the Crime of Aggression and Immunity

David Luban (Georgetown University Law Center) has posted The Crime of Aggression: Its Nature, the Leadership Clause, and the Paradox of Immunity (Forthcoming in, Elsevier Research Handbook on International Legal Theory (Eliav Lieblich & Tom Dannenbaum eds. 2024)) on SSRN. Here is the abstract:

The paper, written for a research handbook, critically surveys some fundamental philosophical, historical, and doctrinal issues in the crime of aggression. The two introductory sections set the theoretical issues in the context of Russia’s invasion of Ukraine, and explain the origins of criminalizing aggression under the heading of “crimes against peace.” Section 3 explores an ambiguity between aggression as first use of force and aggression as unprovoked use of force, while section 4 discusses the doctrinal distinction between acts of aggression and wars of aggression.

Sections 5 and 6 turn to the theory of aggression. Section 5 examines modern versus early modern just war theorists’ views of just cause. Section 6 explores various theories of what exactly makes aggressive war so evil that it belongs in the pantheon of core crimes, side by side with genocide, crimes against humanity, and other war crimes. The basic question is whether aggression is fundamentally a crime against states, a crime against human rights, or a crime against peace itself. I reject the first, statist, version, and endorse the human rights version. I examine three versions of the view that aggressive war is fundamentally about its human costs: that aggressive wars lead to atrocities (Trainin); that aggressive wars lead more generally to unjustified killings (Dannenbaum); and that aggressive wars lead to both unjustified killings by the aggressor, and to unnecessary killings that include the justified killings of aggressors’ troops by defenders (Mégret). As for crimes against peace, I argue that this theory of aggression’s evils comes in two “flavors,” one of which has justly been criticized by postcolonial writers, and one of which I think is legitimate. The former originates in Judge Pal’s famous dissenting opinion in the IMTFE, and argues that criminalizing aggression is a move by colonial powers to freeze the oppressive status quo. The more legitimate version is that in an age of catastrophically destructive weapons, the risks of escalation in armed conflict –the threat that conflicts will spiral into world wars–are simply too great in human terms. Thus, the legitimate version of “crimes against peace” is part and parcel of the human rights analysis.

The final sections break new ground. Section 7 considers whether aggression is solely a leadership crime. Everyone agrees that it would be wrong to punish ordinary soldiers for the crime of aggression launched by their leaders. The questions is why, and it is not easy to answer. Examining it brings us to a contemporary dispute over which leaders can be prosecuted: only those who control or direct the aggressive policies (as per the ICC’s Rome Statute), or others as well, who “shape or influence” the policy without necessarily directing it (as the customary rule used to be formulated). I argue against any narrowing of the leadership clause.

Section 8 explores the “paradox of immunity”: Under the legal principle of sovereign immunity, apex leaders are immune from prosecution in the courts of another state. But under the narrow leadership clause, only apex leaders can be prosecuted. Here I argue for a surprising conclusion: that in fact there never was a customary rule of immunity for the crime of aggression. If so, the paradox of immunity disappears. This resolution also helps cut the Gordian knot of a current debate about whether a relatively small subset of states (the EU, perhaps) can form an aggression tribunal and call it “international.”

Highly recommended.

Call for Nominations: "Best Untenured Article Award" (AALS Section on Federal Courts)

CALL FOR NOMINATIONS

Best Untenured Article Award

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2025 AALS Annual Meeting.

The purpose of the award program is to recognize outstanding scholarship in the field of Federal Courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2024 (date of actual publication deter-mines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of October 1, 2024), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Professor Marin Levy at Duke University School of Law ([email protected]).

Without exception, all nominations must be received by 11:59 p.m. (EDT) on October 1, 2024. Nominations will be reviewed by a prize committee comprised of Professors Payvand Ahdout (University of Virginia School of Law), Kellen Funk (Columbia Law School), Tom Lee (Fordham School of Law), Marin K. Levy (Duke University School of Law), and Richard Re (University of Virginia School of Law), with the result announced at the Federal Courts Section program at the 2025 AALS Annual Meeting.

Chachko on the Anti-Regulation Quarter of Supreme Court Decisions

Elena Chachko (UC Berkeley School of Law) has posted The Anti-Regulation Quartet and Internationally Informed Regulation (Harvard Law Review) on SSRN. Here is the abstract:

Two terms ago, the Supreme Court delivered the Major Questions Quartet. This term produced what commentators widely view as the Anti-Regulation Quartet. The Supreme Court delivered four decisions that, taken together, will likely make life much harder for regulators. The Anti-Regulation Quartet has triggered intense debate and analysis. One important area that has not received much attention, however, is internationally informed agency action. International engagement is widespread in agency practice through implementation of international agreements, adoption of soft law regulatory standards, harmonization of regulations with foreign countries, incorporation of general foreign policy objectives in regulation and more. Internationally informed agency action raises a distinctive set of doctrinal complications left unaddressed by the Court.

In Loper Bright Enterprises v. Raimondo, the Court overruled Chevron’s formulation of deference to agency interpretations of statutes. In SEC v. Jarkesy, the Court held that the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against them, possibly deflating a powerful SEC enforcement tool. In the somewhat less publicized case of Corner Post v. Board of Governors of the Federal Reserve System, the Court opened a path for litigants newly injured by final agency action to challenge it regardless of the APA’s six-year statute of limitations. The implication is that even older, settled regulations could now face new legal challenges. And in Ohio v. EPA, the Court indicated that courts should apply more exacting standards than the current status quo in reviewing how agencies respond to comments in notice and comment rulemaking.

In this essay, I highlight the unique features of internationally informed regulation and outline preliminary thoughts about the potential implications of the Court’s decisions. One key implication is that a host of internationally informed regulations that don’t fit within the Court’s idea of foreign affairs and national security actions have been made much more vulnerable by the Anti-Regulation Quartet. Clear-cut foreign affairs and national security actions are unlikely to be significantly affected. But internationally informed agency actions outside a vaguely defined foreign affairs and national security core are now at greater risk — at least as a matter of doctrine.

Internationally informed regulation also encapsulates and highlights the tension between the Court’s staunch constitutional presidentialism and its deep skepticism of the administrative state. That tension complicates predictions on how the Court might assess internationally informed regulations in the future. Internationally informed regulation is intertwined with the President’s foreign affairs powers, and yet it is unlikely to benefit from the Court’s deference to the President in that area.

de Britto on the Social Function of Copyright

Vitoria Maturana de Britto (Munich Intellectual Property Law Center (MIPLC)) has posted The Social Function of Copyright on SSRN. Here is the abstract:

This thesis deals with the need to recognize a balance between the individual rights conferred on authors in the copyright system and the common interests of society. It investigates the application of the social function to copyright. In this sense, this theory indicates that no individual right should be considered absolute and that there should always be a balance between individual rights and the common interests of society. This approach also goes through the concepts of common interest and what this balance of interests means.

The common interest refers to the general social interest, not the sum of individual interests. Furthermore, it is not necessarily the interest imposed by a government, but a social objective. The balance that must be made is between individual rights and the common interest, which can also be identified through individual rights that have been recognized based on common objectives, such as fundamental rights.

In the context of copyright, based on its justifications and the limits and exceptions already established in legal systems, we analyze its common interest in promoting the cultural development of society, as a way of contributing on a general and personal level to the construction of individuals' personal perception. Because of this common interest, there are two rights, the right of access and the right of creation/reuse, which must be balanced against the exclusive rights of authors of artistic and literary works.

Finally, let's look at the Pelham case, judged by the CJEU, as an example of the need for greater attention to be paid to the application of the social function to copyright, in the context of sampling techniques in the music industry.

Legal Theory Lexicon: Meta-Level Arguments

Introduction

Many legal questions involve the application of settled law to the facts of a particular case.  But there are other cases, where the law is unsettled, either because there is no controlling precedent or because there is an going dispute about whether the controlling decision is correct.  This topic is discussed in Legal Theory Lexicon 095: Open and Contested Questions of Law.  Sometimes the framework for the resolution of an unsettled question of law is well-established: the open or contested question of law can be settled at the issue level.  Other times, there are disputes about how to settle the open or contested question: for example, if the question is one of statutory interpretation and construction, the resolution of the question may hinge on whether the methodology employed by the court is textualist, purposivist, intentionalist, or something else.  We can call this kind of question, a "meta-level question."  This topic is discussed in Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions.

Law students spend a lot of time learning the legal doctrine and developing the ability to apply the law to complex fact patterns.  This is the skill that is tested by the standard issue-spotter exam.  And many law students are exposed to open and contested questions of law.  Some professors treat such questions as an opportunity to express their own opinions as to how the questions should be resolved; others may ask students to take a position and make an argument on the open or contested question.  But in the first year of law school, it is relatively rare for students to get a systematic exposure to meta-level questions.  And a systematic exposition of the kinds of arguments that can be advanced at the meta-level is even rarer.

This entry in the Legal Theory Lexicon offers an introduction to meta-level argumentation.  As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Internal and External Critique of Meta-Level Theories

One useful distinction is usually expressed by differentiating "internal critique" from "external critique."  An internal critique of a meta-level theory accepts the basic premises of theory but shows that the theory or the justifications for the theory fail from this internal perspective.  There are many different kinds of internal critique.  One simple mode of internal critique challenges the validity of the argument for a meta-level position.  For example, it might be argued that the fact that the constitutional text is written leads to the conclusion that it should be interpreted on the basis of its original meaning.  One frequent criticism of this argument is that the conclusion does not follow from the premises.  Another kind of internal critique is based on an internal inconsistency is a theoretical position.  For example, a theory that asserted that common-law decisions are judge-made law, and that hard cases in the common law are decided by following precedent would be internally inconsistent.

External critique operates on the basis of premises that are outside of the theory being criticized.  For example, textualism might be criticized on the ground that legislatures are poorly equipped to understand the legal consequences of the statutes they right.  Therefore, textualism will lead to interpretations of statutory language that produce unintended consequences and bad policy.  Or a theory of the common-law might be based on a deontological theory of morality; judges should decide cases on the basis of considerations of justice and fairness.  A critique of this theory might start with the rejection of deontology in favor of consequentialism; this move then could lead to the argument that decisions based on fairness will lead to bad consequences and hence to bad decisions.

Public Reasons and Deep Theories

Another useful distinction differentiates between "public reasons" and "deep theories."  Let's begin with a list of theoretical positions that are "deep" in the sense specified by this distinction:

• Utilitarianism--the view that ultimate value is utility, which might be understood as the maximization of pleasure and the minimization of pain.  (But there are other forms of utilitarianism.)
• Social Contract Theory--the view that government should have all and only those powers that would be granted to government by persons forming a social contract in the state of nature.
• Egalitarianism--the view the most important criterion for judging the rightness or wrongness of a legal norm is the effect the norm will have on equality.  (Note that there can be many different views about what kind of equality counts.)

The reasons provided by these deep theories can be contrasted with reasons that are "shallow" in the sense that the avoid commitment on ultimate questions of morality or political philosophy.  Rawls used the phrase "public reason" to describe justifications that can be viewed as reasonable by persons who differ about the deep questions.  Here are some examples:

• Equal Citizenship--all citizens should be viewed as political equals and therefore no citizen should be denied the basic rights of citizenship such as the rights to vote and hold office.
• The Relevance of the General Welfare--the general welfare is relevant to questions of law and public policy, even if it is not the only relevant factor.  Hence, a meta-level theory that would lead to disastrous consequences for society as a whole can be argued against on that ground.

There is a Legal Theory Lexicon entry on public reasons: Legal Theory Lexicon 009: Public Reason.  One advantage of arguments based on public reasons is that may be able to produce an "overlapping consensus" or "incompletely theorized agreement."  Deep reasons fair badly on this score, because almost any deep theory of ethics or political morality is rejected by many or even most citizens. This topic is discussed in the following Lexicon entry:  Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements.

Outcome Arguments and Process Arguments

Another useful distinction can be made between outcome-based arguments and process based arguments.  An outcome based argument is one that looks to the consequences of adopting a meta-level theory.  The following are examples of outcome-based arguments:

• Originalism will lead to bad outcomes because the Constitution is very old and adherence to its original public meaning would hobble the regulatory state and result bad policy on many issues, including climate, pollution, and the regulation of financial institutions.
• Statutory intentionalism will lead to bad outcomes, because the actual intentions of Congress are motivated by the power of special interest groups and not good public policy.

Process arguments focus on the way that decisions are made.  For example:

• Statutory textualism is more legitimate than rival views, because it requires judges conform to legal norms made by elected officials.  Purposivism is less legitimate, because it requires judges to adopt statutory constructions that conform to the judge's own views about what the purpose of the statute should have been.
• Common law constitutionalism is better than originalism, because judges are institutionally competent to engage in common law reasoning but they are not trained in the historical methods required to discern original meaning.

The Method of Reflective Equilibrium

There is a Legal Theory Lexicon entry on "reflective equilibrium": Legal Theory Lexicon 009: Public Reason.  The basic idea of this method is that meta-level positions can be justified using the following procedure.  We start with our intuitive beliefs, both about general principles and particular cases.  We then examine these beliefs to see if they are consistent.  For example, we might start out with a belief that Roe v. Wade was rightly decided because it protects a fundamental right of privacy and another belief that Lochner v. New York was wrongly decided because it protected an unenumerated constitutional right that could not be justified on the basis of the constitutional text.  If the right to privacy is also an unenumerated right that cannot be justified on the basis of the constitutional text, we would then try to reconcile these two beliefs.  If at the end of the day, they cannot reconciled, then one belief or the other would need to be modified.  For example, we might jettison the idea that unenumerated rights are illegitimate.  Or we might instead conclude that such rights are legitimate if they ensure political equality, but not legitimate otherwise.  This process continues until our beliefs about both particular cases and general principles are mutually supportive and consistent.  At that point we have reach what Rawls called "reflective equilibrium."

The method of reflective equilibrium can be contrasted with what Rawls called "the method of geometry."  The analogy to geometry is designed to bring out the possibility that meta-level theories might be justified by arguments from "first principles."  If there were a set of principles of political morality or normative legal theory that were self-evidently true, it might be possible to justify a meta-level theory by deductive argument.  The practical problem with such a theory is that there does not seem to be any agreement on what the self-evidence premises of political morality are.

Conclusion

This entry in the Legal Theory Lexicon introduced some very general and basic ideas about meta-level arguments.  Such arguments operate at a very abstract and general level.  So, it is not surprising that the distinctions that we have examined are quite abstract and general as well.  Nonetheless, I hope that this Lexicon entry has provided a set of tools for thinking about meta-level argumentation.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 009: Public Reason
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 018: Justice
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements
• Legal Theory Lexicon 046: Legitimacy
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract
• Legal Theory Lexicon 077: Living Constitutionalism
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 095: Open and Contested Questions of Law
• Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions
• Legal Theory Lexicon 069: Reflective Equilibrium

(Last revised on September 28, 2024.)

Legal Theory Bookworm: "Historical Gloss and Foreign Affairs" by Bradley

The Legal Theory Bookworm recommends Historical Gloss and Foreign Affairs: Constitutional Authority in Practice by Curtis A. Bradley.  Here is a description:

A new interpretation of the constitutional law of foreign affairs, as it has been developed throughout its history by presidents and by Congress.

In the more than 230 years since the Constitution took effect, the constitutional law governing the conduct of foreign affairs has evolved significantly. But that evolution did not come through formal amendments or Supreme Court rulings. Rather, the law has been defined by the practices of Congress and the executive branch, also known as “historical gloss.”

Curtis A. Bradley documents this process in action. He shows that expansions in presidential power over foreign affairs have often been justified by reference to historical gloss, but that Congress has not merely stepped aside. Belying conventional accounts of the “imperial presidency” in foreign affairs, Congress has also benefited from gloss, claiming powers for itself in the international arena not clearly addressed in the constitutional text and disrupting claims of exclusive presidential authority.

Historical Gloss and Foreign Affairs proposes a constitutional theory that can make sense of these legal changes. In contrast, originalist theories of constitutional interpretation often ignore influential post-Founding developments, while nonoriginalist theories tend to focus on judicial decisions rather than the actions and reasoning of Congress and the executive branch. Moreover, the constitutional theories that do focus on practice have typically emphasized changes at particular moments in time. What we see in the constitutional law of foreign affairs, however, is the long-term accumulation of nonjudicial precedents that is characteristic of historical gloss. With gloss confirmed as a prime mover in the development of foreign affairs law, we can begin to recognize its broader status as an important and longstanding form of constitutional reasoning.

And from the reviews:

“An instant classic. As the foremost scholar in the country on the Constitution and foreign affairs, Curt Bradley has written the single best book on the subject. Historical Gloss and Foreign Affairs is a must-read for anyone interested in understanding how constitutional law develops, and it could not be timelier.”―Michael Gerhardt, University of North Carolina School of Law

“Outstanding. With acuity and nuance, Curt Bradley explains how presidents have come to be so mighty and how Congress can check them when it wishes. What a splendid book!”―Jean Galbraith, University of Pennsylvania Carey Law School

“Historical Gloss and Foreign Affairs is the definitive account of the unique ways that historical practice informs the allocation of constitutional power in foreign affairs, where constitutional text is very often a poor guide to legitimate practice. Its powerful explanation of how historical gloss informs constitutional meaning is also a vital contribution to constitutional theory more generally.”―Jack Goldsmith, Harvard Law School

“One of the finest books about the foreign relations law of the United States ever written. Bradley provides a masterful analysis of all the important topics and makes a convincing case about the role of historical gloss in shaping doctrine.”―Paul Stephan, University of Virginia School of Law

“An incisive guide to how the Constitution has accommodated dramatic shifts in the conduct of foreign affairs throughout its history―and how it might continue to do so going forward.”―Monica Hakimi, Columbia Law School

Download of the Week: "Looking for the Public in Public Law" by Menezes & Pozen

The Download of the Week is Looking for the Public in Public Law by Nikhil Menezes & David Pozen. Here is the abstract:

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the American public as playing myriad roles in governance—checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on the questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and intellectual history, and to propose a pragmatic response—grounded in the recovery of the public’s role as an author and not just a monitor of public law. We first detail how public law’s stylized appeals to the public reflect analytic imprecision and inattention to the values, views, and votes of actual people. We then show how these omissions and obfuscations leave public law vulnerable to critiques from both the left and the right, which have been gaining force on account of broad transformations in the administrative state, social structure, and public sphere. It may not be possible to resolve these dilemmas fully or to redeem the public writ large as an agent in public law. But drawing on recent political science work on deliberative democracy, we outline a research and reform agenda for identifying, constructing, and empowering coherent publics (plural) capable of legitimating legal change.

Highly recommended. Download it while it's hot!

Willey, Tran, Hinkle, & Matthews on Visual Contracts

Rob Willey (George Mason University - George Mason University Law Library; George Mason University), Tammy Tran, Lygie Hinkle, & Ashley Matthews (George Mason University Law Library) have posted Visual Contracts in U.S. Courts (Drake Law Review, Forthcoming) on SSRN. Here is the abstract:

Visual contracts are what they sound like: contracts that use graphic elements and text to convey the meaning of an agreement. The visuals can include diagrams, cartoons, maps, flowcharts, timelines, and more. Other scholars have detailed many of the benefits of visual contracts and their adoption has become increasingly common outside the U.S., with large corporations like Airbus and Shell utilizing them. However, in the U.S. adoption remains limited.

The less than enthusiastic reception to visual contracts in the U.S. likely stems from lawyers’ risk aversion. Lawyers prefer established processes with predictable outcomes and often opt to repeat patterns that they and others have already used. This protects them and, while not necessarily optimal, provides their clients with greater predictability. But are visual contracts really risky in the U.S? While it’s true that no U.S. courts have actually interpreted a visual contract, as we define the term, our research indicates that U.S. courts regularly interpret visuals. They do so when deciding what visual aids to admit during trials and when adjudicating lawsuits where a visual makes up some part of the dispute. Some judges even add visuals to their opinions to clarify their writing. This comfort with non-textual representations signals that U.S. courts are capable of and willing to interpret visuals and, therefore, would accept visual contracts. But we found even stronger evidence that U.S. courts will receive visual contracts: judges already adjudicate visuals in contract cases. While the contracts in these cases reference visuals outside the actual text of the contract, the cases they feature in show U.S. judges confidently interpreting visuals in adjudicating contract disputes. Our paper details some of these examples and delves further into how they provide the support and predictability that lawyers need to move the visual contract field forward in the U.S.

Further bolstering our argument, our research revealed that visual contracts are not new. In fact, they came centuries before written agreements. Unfortunately, while most people could comprehend these ancient agreements, only a select few can understand the dense prose that makes up most contracts today. Visual contracts offer a way back to the more accessible origins of contracting.

Why would lawyers depart from the methods they know? In addition to the reasons other scholars have already provided, our paper adds a few new ideas. Initially visual contract adopters may need to spend more to create visual contracts, but they also stand to gain by establishing themselves as experts in a field. Plus, our paper details how utilizing designers can actually reduce drafting costs on a per contract basis.

As with all things new, visual contracts pose risks. However, the benefits they offer and the potential profits early adopters could obtain, make them worthwhile. Here, we dig into the details of implementing visual contracts under the U.S. legal system.

O'Neill on Younger Abstention and the Child-Welfare System

Peter O'Neill (Stanford Law School) has posted Younger and the Youth: The Younger Abstention Doctrine in the Child-Welfare Context (76 Stan. L. Rev. 1323 (2024)) on SSRN. Here is the abstract:

In 2021, over three million children interacted with the child welfare system and over six hundred thousand were in foster care. These child welfare systems, striving as they may to help children and families in crisis, are themselves in crisis. Seeking relief from these dysfunctional state systems, children and advocacy groups have turned to the federal courts for relief. These plaintiffs have challenged almost every aspect of state child welfare systems, from initial investigation to discharge, and have asked federal courts to mandate everything from targeted reforms to complete overhauls of state systems. But because child welfare systems are often run by, through, and with the oversight of state courts, the Younger abstention doctrine has posed an early obstacle to some of these suits. Courts considering whether to abstain have split on almost every point of Younger's analysis: whether state courts provide an adequate opportunity to raise federal claims, whether a federal challenge would interfere with the state court proceedings, and whether child welfare proceedings are the kind of proceedings to which Younger applies.

While the literature on Younger abstention is expansive, this last question—whether child welfare proceedings are the kind of proceedings to which Younger applies—has largely been ignored by scholars. This Note fills that gap. Part I details the development of the Younger doctrine. Part II introduces the child welfare system and explores how courts have applied Younger in this context, beginning with an overview of child welfare systems and concluding with an in-depth look at recent decisions by the Seventh and Fourth Circuits. Part III analyzes child welfare proceedings within the Younger/Sprint framework. It argues that certain portions of child welfare proceedings are quasi-criminal, that the extent to which a proceeding is quasi-criminal varies across and within cases, and that neither the Seventh nor the Fourth Circuit has adequately accounted for this heterogeneity. Finally, Part IV offers a solution, proposing that courts should take a piecemeal approach to Younger in the child welfare space.

Kieffaber on Robot Judges and Textualism

Jack Kieffaber has posted PREDICTABILITY, AI, AND JUDICIAL FUTURISM: WHY ROBOTS WILL RUN THE LAW AND TEXTUALISTS WILL LIKE IT on SSRN. Here is the abstract:

The question isn’t whether machines are going to replace judges and lawyers—they are. The question is whether that’s a good thing. If you’re a textualist, you have to answer yes. But you won’t—which means you’re not a textualist. Sorry.

Hypothetical: The year is 2030. AI has far eclipsed the median federal jurist as a textual interpreter. A new country is founded; it’s a democratic republic that uses human legislators to write laws and programs a state-sponsored Large Language Model called “Judge.AI” to apply those laws to facts. The model makes judicial decisions as to conduct on the back end, but can also provide advisory opinions on the front end; if a citizen types in his desired action and hits “enter,” Judge.AI will tell him, ex ante, exactly what it would decide ex post if the citizen were to perform the action and be prosecuted. The primary result is perfect predictability; secondary results include the abolition of case law, the death of common law, and the replacement of all judges—indeed, all lawyers—by a single machine. Don’t fight the hypothetical, assume it works. This article poses the question: Is that a utopia or a dystopia?

If you answer dystopia, you cannot be a textualist. Part I of this article establishes why: Because predictability is textualism’s only lodestar, and Judge.AI is substantially more predictable than any regime operating today. Part II-A dispatches rebuttals premised on positive nuances of the American system; such rebuttals forget that my hypothetical presumes a new nation and take for granted how much of our nation’s founding was premised on mitigating exactly the kinds of human error that Judge.AI would eliminate. And Part II-B dispatches normative rebuttals, which ultimately amount to moral arguments about objective good—which are none of the textualist’s business.

When the dust clears, you have only two choices: You’re a moralist, or you’re a formalist. If you’re the former, you’ll need a complete account of the objective good—which has evaded man for his entire existence. If you’re the latter, you should relish the fast-approaching day when all laws and all lawyers are usurped by a tin box. But you’re going to say you’re something in between. And you’re not.

Fascinating and recommended with enthusiasm.

Healy on “Actual Malice: Civil Rights and Freedom of the Press in N.Y. Times v. Sullivan" by Barbas

Thomas Healy (Seton Hall Law School) has posted A Democracy Story: Reframing a Free Speech Landmark on SSRN. Here is the abstract:

What can we learn about the wisdom and legitimacy of current free speech doctrine by revisiting the story behind a landmark First Amendment decision? That’s the question I explore in this review essay of Samantha Barbas’s new book, “Actual Malice: Civil Rights and Freedom of the Press in N.Y. Times v. Sullivan.”

As her subtitle indicates, Barbas’s book attempts to reframe the story of Sullivan – to shift the focus from the issue of free speech to that of racial equality. Although there are real benefits to this approach, I argue that there are also risks. The primary one is that portraying Sullivan as a civil rights case will weaken its force as a free speech precedent, implying that the decision was the result of special circumstances and that the actual malice rule it adopted is therefore not generally applicable. Instead, I argue we should think about Sullivan primarily as a case about democracy and the rules necessary to sustain it. Doing so not only underscores the decision’s universal dimensions; it also helps to defend against the numerous critiques leveled at the Sullivan regime in recent years, most of which, I argue, are unfounded

Penrose on 303 Creative LLC

Meg Mary Margaret Penrose (Texas A&M University School of Law) has posted Understanding 303 Creative LLC in a Polycentric Constitutional World (William & Mary Bill of Rights Journal, Vol. 32, No. 4, 2024, pp. 943-57) on SSRN. Here is the abstract:

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus on the unique nature of the product being sold, the unique nature of same-sex weddings,19 or simply the product being characterized as expressive commerce? And third, how far ranging will 303 Creative LLC’s free speech protections truly be? Will those with deeply held racial or national origin convictions be permitted to raise similar objections under the First Amendment? Or is same-sex marriage sui generis such that society, and our courts, will accept same-sex couples being relegated to a second-class status in the public marketplace, particularly when it comes to same-sex weddings?

Unlike Henny-Penny, this author does not believe the sky is falling. 303 Creative LLC does allow limited discrimination against same-sex couples in the marketplace. This discrimination is permitted despite being in violation of state anti-discrimination laws that increasingly protect sexual orientation and same-sex couples. But the decision will hopefully be narrowly drawn and equally applied. If a vendor selling expressive commerce does not want to serve others, that rule must be equally applicable regardless of the race, gender, religion, or national origin of the person being denied service. The results could get messy. But the law—and the right of free speech to refuse to serve others—must be equally applied. And this mandate, the equal application requirement, will ultimately limit the reach of 303 Creative LLC to ensure a narrow definition of expressive commerce. Society cannot afford to return to an era of segregated services.20 Neither the Court nor Congress will allow that to happen.

Fellner on Public Choice and Judicial Deference

Robert Fellner (George Mason University, Antonin Scalia Law School) has posted A Public Choice Analysis of Judicial Deference on SSRN. Here is the abstract:

Currently, courts treat economic regulations as generally immune from judicial review. The basis for this deference is the belief in the public interest theory of legislationwhich posits that the legislative process can reliably produce outcomes that reflect majority preferences. Applying the tools of public choice reveals that courts are relying on a flawed model when they refuse to meaningfully review economic regulations. Public choice analysis also reveals that enhanced judicial review is likely to do a better job of protecting economic rights and increasing economic welfare, without offsetting harms to other public interest values, such as a respect for majority preferences.

Ringort & Sela on Online Mediation

Rachel Ringort (Bar-Ilan University, Faculty of Law, Students) & Ayelet Sela (Stanford Law School; Bar Ilan University Faculty of Law) have posted An Information Flow Model of Online Mediation: Jeopardizing Privacy and Autonomy in the Shadow of Innovation (Cardozo Journal of Conflict Resolution, Volume 25(3) 443-490 (2024)) on SSRN. Here is the abstract:

Online mediation has developed significantly over the past decade, and increasingly so following the COVID-19 pandemic. Online mediation platforms are now integrated into both private and public settings, enabling mediation through diverse means-from videoconferencing software to dedicated platforms that use various procedural and technological tools, including artificial intelligence powered applications. The digital transformation of the mediation process introduces challenges and opportunities for mediators, parties, and mediation platforms, many of which stem from new digital data handling practices. This article explores how such digital transformation of mediation impacts the parties' rights to self-determination and privacy. Recognizing that these rights derive from the parties' right to autonomy, the article argues that the rights can be construed in terms of the parties' control over the flow of information in mediation. The parties exert their control over information communication (the transfer of information among disputing parties and the mediator) and information analysis (identification and analysis of relevant information to support informed decision-making). Accordingly, this article proposes a model that conceptualizes mediation tasks and associated risks on two axes: the information reveals axis, which captures the types of information revealed and generated in online mediation; and the information processing axis, which reflects the analytical operations that the parties, mediator, and mediation platform perform on the information that has been revealed. Next, the article analyzes the norms that regulate participants’ control over the flow of information in the process, namely mediation norms that protect the confidentiality of the process and the self-determination of the parties, and privacy and data protection norms that govern the parties’ control over their personal information. Subsequently, the article discusses how the involvement of digital platforms alters the flow of information in online mediation by creating new types of information and effectuating new means of information processing that may undermine the parties’ control over the decision-making process and outcome, their privacy, and the confidentiality of the mediation.

Reid on the Limits of Copyright

Blake E. Reid (University of Colorado Law School; University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship) has posted What Copyright Can’t Do (Pepperdine Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. This positions copyright law’s powerful remedies to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates increasingly have called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers.

But there are some things that copyright can’t do. This Article identifies practical limits in the structure of contemporary copyright law and doctrine that constrain copyright’s capabilities for solving policy problems beyond copyright’s usual ambit. From these limits, this Article generates a novel taxonomy of regulatory tools missing from copyright law’s toolkit for addressing harms and benefits of creative works and uses. These interventions—including regulating harmful creation and compelling beneficial creation, subsidizing creation and supporting creator welfare, preventing harmful uses of works by rightsholders and licensees, compelling licensed uses, and facilitating and liberating beneficial uses—are functions that depend on interventions from outside copyright law.

This Article illustrates the important policy consequences of copyright’s missing capabilities via case studies where scholars, policymakers, and advocates have deployed copyright doctrines in nontraditional contexts. These examples include remediating works into accessible formats for disabled consumers, stopping the creation of child sexual abuse material, regulating the nonconsensual distribution of intimate imagery, governing the development of generative artificial intelligence, allowing consumers to switch cell phone networks, and promoting good-faith security research. These examples show that copyright’s underappreciated structural limits often impede efforts to solve public policy problems with novel copyright interventions.