Legal Theory Blog

Legal Theory Bookworm: "Allegiance, Citizenship and the Law" by Irving

The Legal Theory Bookworm recommends Allegiance, Citizenship and the Law: The Enigma of Belonging by Helen Irving.  Here is a description:

Weaving together theoretical, historical, and legal approaches, this book offers a fresh perspective on the concept of allegiance and its revival in recent times, identifying and contextualising its evolving association with theories of citizenship.

The book explores how allegiance was historically owed in return for the sovereign’s protection but has been redeployed by modern governments to justify the withdrawal of protection. It examines allegiance from multiple perspectives, including laws for the revocation of citizenship, new ideas of citizenship education, the doctrine of treason, oaths of allegiance, naturalisation tests, and theories of belonging. This thought-provoking book ultimately finds allegiance to be a feudal concept that is inappropriate in the liberal democratic state, and is misplaced, even dangerous, in its association with modern citizenship. Rejecting allegiance, but reaching a constructive resolution, it explores modern alternatives to describe the bond between citizens, advancing a new perspective on the ‘enigma’ of belonging.

With its carefully constructed analysis, this work will prove pivotal in furthering our understanding of allegiance and citizenship. Its legal–theoretical account of a complex and under-theorised concept make it valuable reading for legal and political theorists, legal historians, and scholars of citizenship, law, and social politics.

And from the reviews:

‘Focused on citizenship as legal status, Helen Irving meticulously excavates the complex past and present of allegiance in relation to the topic of citizenship. She shows us in detail how allegiance works, how it links to acquisition and loss of citizenship, and how we should think about it in relation to contested topics such as dual citizenship. Until now, there has been a gap in the literature of modern citizenship in relation to allegiance. Irving’s new book fills that gap.’ -- Jo Shaw, University of Edinburgh, UK

Download of the Week: "Democracies in the Age of Fragmentation" by Pildes

The Download of the Week is Democracies in the Age of Fragmentation by Richard H. Pildes.  Here is the abstract:

Democracies throughout the West are unable to marshal wide-enough support to deliver effective government. The communications revolution is one reason why, and we have not yet fully grasped the profound challenge social media poses to democracies. Even if the problems of disinformation, misinformation, incitement, and the like could somehow be solved, that challenge would remain.

The political turbulence social media has fueled takes many different forms, which this essay chronicles. In the United States, it has enabled the rise of independent, free-agent politicians, who party leaders cannot corral to generate a unified party agenda. The internet has also spawned the rise of small donors, one effect of which is to fuel the extremes of the parties. In Europe, social media has led to the sudden emergence of digital “pop-up” parties that have dramatically disrupted politics, such as the Brexit Party in the UK and the Five Star Party in Italy. The communications revolution has also facilitated the rise of spontaneous, non-organized groups that have completely roiled politics, such as the Indignados in Spain or the Yellow Vests in France. Because these groups lack structure and leaders, democratic governments find it difficult to respond to vague, shifting demands. Even atomistic individuals, acting through social media but outside of any party or organizational context, have had major disruptive effects on politics in some countries.

Political authority must be accountable, of course, and badly exercised power deserves challenge. But democracies now function in an era in which the challenge to them is constant. This new democratic era might be one in which new technologies will enable many more people to engage in forms of politics, individually and in groups or parties. Opposition to government action, or demands for government to act or act differently, will be easy to mobilize and constant. Politics and government will be continually turbulent, but less able to deliver effectively on the issues citizens care most urgently about.

Highly recommended.

Bhattacharya on Fairness & Artificial Intelligence

Priyanka Bhattacharya (Illinois Institute of Technology, Chicago-Kent College of Law) has posted A Perspective on Fairness in Artificial Intelligence on SSRN.  Here is the abstract:

Data is the weapon of the future. Whoever controls data, controls the world…If we don’t put up a fight, our data will belong to the wrong people--- The Billion Dollar Code Machine Learning Algorithms: An Overview

“Predictive Analytics . . . is the application of mathematics to analyze patterns in historic data. It’s a type of forecasting that seeks to find relationships (correlations) between past and future events. You will hear terms like ‘Data mining’, ‘Machine learning’ ‘Artificial intelligence’ and ‘Deep learning’ being thrown about when people talk about predictive analytics, but it’s all just different types of math at the end of the day.” Artificial intelligence was born in the 1950s, mathematicians, scientists and philosophers began pondering upon the concept ‘artificial intelligence.’ One such person was Alan Turing who raised a question that similar to how humans make use of the available information to reason and solve problems, can machines also solve problems by generating patterns from the available data? —a question whose ramifications we’re still exploring today.

Although there is no concise definition, yet Artificial Intelligence or as we will call it for the purpose of this dissertation ‘machine learning’ is the procedure for creating algorithm that is able to learn from data. I am considering one of the formal definitions of predictive system as “the use of mathematical procedures (algorithms) to analyze data. The aim is to discover useful patterns . . . between different items of data. Once the relationships have been identified, these can be used to make inferences about the behavior of new cases.”

A machine-learning system is trained to recognize patterns in the input data and are explicitly programmed to create a function from the input to the output. r. It’s presented with many examples relevant to a task, and it finds statistical structure in these examples that eventually allows the system to come up with rules for automating the task. For instance, if you wished to automate the task of tagging your vacation pictures, you could present a machine-learning system with many examples of pictures already tagged by humans, and the system would learn statistical rules for associating specific pictures to specific tags. A machine-learning model transforms its input data into meaningful outputs, a process that is “learned” from exposure to known examples of inputs and outputs.

The field of machine learning systems is highly empirical and except some algorithms such as decision trees (explained infra), often the most experienced researchers sometimes lack an explanation for why a particular algorithm behaves in a certain manner. Machine learning systems are no longer a tool for ad placements and spam filters. The past few years have witnessed its wide range of activities in the field of healthcare, parole decisions, filtering loan applicants and many more. Gradually, such usage gave rise to a major concern that such data driven method might lead to discriminatory results or otherwise be unfair or biased. Tom Mitchell in 1980 in his paper titled “The need for biases in learning generalizations” introduced the term ‘bias’ in machine learning systems for the first time.

Keswani & Celis on Fair Algorithmic Classification

Vijay Keswani (Yale University) & L. Elisa Celis (Yale University) have posted An Anti-Subordination Approach to Fair Classification on SSRN.  Here is the abstract:

Many recent studies have pointed out that classification algorithms often propagate negative stereotypes and social biases against historically-oppressed groups. In response, the field of fair machine learning has proposed technical solutions for a variety of settings that aim to correct the biases in the predictions of classification algorithms. These solutions remove the dependence of the final classifier prediction on the protected attributes (like gender or race) and/or ensure that performance is similar across groups defined by the protected attributes. Yet, they may not address the historical and societal inequalities that enable the discrimination in the first place. This can lead to scenarios where the deployment of a fair classification algorithm does not reduce the underlying disparities, and in certain cases, even exacerbates them. Given the possibility of such negative impacts of fair classification, it is important to take a step back and question the motivations of fair classification.

We use the legal framework of anti-subordination to study the motivations of a fair classifier and its applications. The anti-subordination principle argues that, in the light of existing and historical biases against disadvantaged groups, decision-making policies can provide equal protection to all groups by actively addressing the historical inequalities faced by disadvantaged groups. Through a survey of the implicit fairness mechanisms in literature, we assess different components of a fair classification system from an anti-subordination perspective. We argue that inappropriate design choices for these components can constitute a violation of the anti-subordination principle, as observed by recent results on negative impacts of algorithmic fairness interventions. Correspondingly, we propose guidelines that a fair machine learning algorithm could follow to adhere to the anti-subordination principle. In doing so, we hope to bridge critical concepts between legal frameworks for non-discrimination and fairness in machine learning.

Rose on Judicial Capacity & Takings

Carol M. Rose (University of Arizona - James E. Rogers College of Law) has posted Rations and Takings (2020 Wisconsin Law Review 343 (2022)) on SSRN.  Here is the abstract:

Andrew Coan’s judicial capacity model explains many things about the pattern of U.S. Supreme Court opinions. Among other things, it perhaps inadvertently explains why the Court makes such wretched decisions about state and local government, particularly in connection with regulatory takings claims. As Coan explains, the Court defines these small-scale regulatory issues as “normal,” not requiring anything more than sporadic intervention. But because it can dodge these issues, the Court never becomes familiar with them except in the most superficial way and has little incentive to come up with sensible solutions. Instead it episodically creates off-the-cuff categories that often disrupt state and local governance practices. This article will give a number of examples from takings cases, including several mentioned in Coan’s book, e.g. the “physical invasion” and “total takings” categories, as well as the Court’s vexingly intrusive decisions about conditions on land use permitting. Together these decisions create confusion, ignore the patterns in which property rights normally evolve, and impede state and local efforts to deal with major environmental problems such as waste management and adaptation to climate change. Many of the Court’s decisions also strongly hint at an underlying prejudice against state and local government.

Hofbauer on Obligations Towards Everyone in International Law

Jane Hofbauer (University of Vienna - Section for International Law & International Relations; Bundeswehr University Munich) has posted Erga Omnes (Partes) (Christina Binder, Manfred Nowak, Jane A Hofbauer, Philipp Janig (eds), Elgar Encyclopedia of Human Rights (2022, Forthcoming)) on SSRN.  Here is the abstract:

Traditionally, international law was understood to largely rest on bilateral right-duty relations. With the debate on jus cogens arising in the inter-war periods and connected therewith the acknowledgement of a slowly emerging normative understanding of an international community and international public order, the question of enforcement of such norms initially remained open. However, the increasing amount of multilateral obligations which could not be broken down into bilateral relationships eventually resulted in the acknowledgment of the need to broaden standing to enforce such obligations. This particularly concerned human rights obligations, recognized already early on as creating ‘a common interest, namely, the accomplishment of those high purposes which are the raison d'être of the convention’ (ICJ, Reservations to the Genocide Convention (Advisory Opinion) [1951] at 23). This paper outlines many of the conceptual difficulties arising in the context of obligations erga omnes which have so far hampered their practical relevance. However, the debate has recently been enriched through slowly growing practice, particularly in the field of human rights.

Garnett on the Burden of Proof & International Arbitration

Richard Garnett (University of Melbourne - Law School) has posted Demystifying the Burden of Proof in International Arbitration (in Franco Ferrari and Friedrich Rosenfeld (eds), Handbook of Evidence in International Commercial Arbitration: Key Issues and Concepts (Wolters Kluwer, 2022) 67) on SSRN.  Here is the abstract:

Introduction: As the chapters in this collection attest, evidence is a crucial topic in international arbitration. The outcome of any legal dispute depends mainly on the evidence adduced by the parties in support of their positions with the arbitral tribunal’s role being to assess the evidence and render its conclusions based on the material provided. The burden of proof plays a vital role in assisting the tribunal and the parties by indicating the facts that must be proven by a party to sustain its claim or defence. In certain cases, particularly where limited evidence is available, the burden of proof may even be decisive of the outcome. The nature of the burden of proof, and its relationship with other concepts such as presumptions and adverse inferences, is explored in this chapter.

Wang on the Peculiarity of American Evidence Law

Zhuhao Wang (China University of Political Science and Law) The Peculiarity of American Evidence Law: An Outsider’s Observation and Reflection (26 International Journal of Evidence & Proof (Forthcoming 2022)) on SSRN.  Here is the abstract:

American evidence law is puzzling. It is essentially a large class of exclusionary rules barring certain types of otherwise relevant evidence from reaching the trier of fact at trial, although the same types of evidence would largely be regarded as valuable in the civil law system or simply in everyday life. For outsiders—especially those from civil law countries, which favor the principle of free proof—such peculiarity is difficult to understand. It is not an overstatement to say that the law of evidence simply never developed in civil law countries. As an outsider to the common law system, the author of this article probed into literatures regarding rationales for American evidence law, with a focus on the “jury control” theory raised by James Bradley Thayer, who described evidence law as “child of the jury system” in the late nineteenth century. Taking a close look at the complex, dynamic relationship between the common law jury and American evidence law, the author argues that it is time for the child (evidence law) to grow up by departing from jury thinking. American evidence scholarship should shift at least partially away from jury-based trials and toward other contexts. Such a shift will make evidence law more engaged with today’s legal environment and on a global scale.

Pildes on Democracy & Fragmentation

Richard H. Pildes (New York University School of Law) has posted Democracies in the Age of Fragmentation (California Law Review, Forthcoming) on SSRN.  Here is the abstract:

Democracies throughout the West are unable to marshal wide-enough support to deliver effective government. The communications revolution is one reason why, and we have not yet fully grasped the profound challenge social media poses to democracies. Even if the problems of disinformation, misinformation, incitement, and the like could somehow be solved, that challenge would remain.

The political turbulence social media has fueled takes many different forms, which this essay chronicles. In the United States, it has enabled the rise of independent, free-agent politicians, who party leaders cannot corral to generate a unified party agenda. The internet has also spawned the rise of small donors, one effect of which is to fuel the extremes of the parties. In Europe, social media has led to the sudden emergence of digital “pop-up” parties that have dramatically disrupted politics, such as the Brexit Party in the UK and the Five Star Party in Italy. The communications revolution has also facilitated the rise of spontaneous, non-organized groups that have completely roiled politics, such as the Indignados in Spain or the Yellow Vests in France. Because these groups lack structure and leaders, democratic governments find it difficult to respond to vague, shifting demands. Even atomistic individuals, acting through social media but outside of any party or organizational context, have had major disruptive effects on politics in some countries.

Political authority must be accountable, of course, and badly exercised power deserves challenge. But democracies now function in an era in which the challenge to them is constant. This new democratic era might be one in which new technologies will enable many more people to engage in forms of politics, individually and in groups or parties. Opposition to government action, or demands for government to act or act differently, will be easy to mobilize and constant. Politics and government will be continually turbulent, but less able to deliver effectively on the issues citizens care most urgently about.

Highly recommended.

Lash on the Original Meaning of the Thirteenth Amendment & Roe v. Wade

Kurt T. Lash (University of Richmond School of Law) has posted Roe and the Original Meaning of the Thirteenth Amendment on SSRN.  Here is the abstract:

The current debates over Roe v. Wade as a substantive due process right have prompted a number of scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery" and "involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument concede that the right to abortion was not the expected application of the Thirteenth Amendment, but insist that a forced continued pregnancy falls within the original meaning of the Amendment’s terms.

This essay explores the history behind the adoption of the Thirteenth Amendment and conclude the pro-Roe reading of the Thirteenth Amendment is incorrect. The original meaning of the Thirteenth Amendment is defined by the text upon which it was based and defended: The 1787 Northwest Ordinance. The framers of the Amendment intentionally used this text precisely because it was well known and had a narrow historical meaning. As used in the Ordinance, the terms “slavery and involuntary servitude” referred to a specific and legally codified “private economical relation” between a “master” and a “servant.” Under slavery--the most severe form of “involuntary servitude”--both the women and the unborn child were considered property equally subject to dismemberment or destruction. The Thirteenth Amendment applied the prohibitions of the Ordinance throughout the United States and forever abolished the idea that one could hold “property in man.” However, nothing in the Amendment (or the Ordinance) affects laws restricting the termination of a pregnancy—laws that were common throughout antebellum America.

Highly recommended.

Hikawa & Gastwirth on Narrow Tailoring, Affirmative Action, & the Data in Grutter

Hiro Hikawa (George Washington University) & Joseph L. Gastwirth (George Washington University - Columbian College of Arts and Sciences) When is an Affirmative Action Plan not 'Narrowly Tailored' or Unduly Harms Other Applicants? A Statistical Re-Examination of the Data in Grutter v. Bollinger and a More Focused Alternative Plan on SSRN.  Here is the abstract:

In fall 2022, the US Supreme Court will review lower court decisions concerning the affirmative action steps Universities may take to diversify their student body. One specific question is “Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?” This paper reviews the statistics presented to the Court in Grutter and presents an alternative analysis, demonstrating that the plan approved in Grutter probably disadvantaged a larger proportion of White applicants than was emphasized to the Court. A more moderate plan, based on the uncertainty inherent in the LSAT exam score and the inferiority of the primary and secondary education most minorities have received is proposed. Under it, no majority applicant will be passed over by a minority applicant who’s LSAT score is not within the uncertainty band of their own score. It leads to about twice as many minorities being admitted than a plan which admitted students solely on the basis of their LSAT and GPA but less than one-half as many students as the one used by the Michigan Law School. Comparing the admissions resulting from the two plans clarifies the large role an applicant’s race and ethnic status had in the Law School’s admission policy. Affirmative action plans similar to the proposed one would enable Universities to obtain the benefits of a more diverse student body without “unduly harming” applicants from non-minority groups.

Krupiy & Rogers on AI & Harm and Governance in Human Rights

Tetyana Krupiy (Newcastle University) & Jaqueline McLeod Rogers (University of Winnipeg - Department of Rhetoric, Writing, and Communications) have posted Mapping Artificial Intelligence and Human Intersections: Why We Need New Perspectives on Harm and Governance in Human Rights (in Aoife O'Donoghue, Ruth Houghton and Se-shauna Wheatle (eds) Research Handbook on Global Governance (Edward Elgar 2023)) on SSRN.  Here is the abstract:

The present chapter examines how the technologies of the internet, smart phone, computer, social media and artificial intelligence decision-making processes interplay and transform human lives. In particular, the chapter focuses on how the employment of these technologies produces effects on how individuals perceive and act as well as on their well-being. It uses the theoretical framework of media ecology to pursue this line of inquiry. The chapter traces how various effects occur at different scales as well as how such effects interplay with one another. It puts forward that in order for international human rights law to be an effective tool of global governance in regard to digital technologies, it is necessary to reconceptualise the concepts of harm and governance. It is vital to interpret existing legal norms in a purposive manner in order to accommodate this process of rethinking. Doing so will allow states to remedy some of the causes which contribute to violations of fundamental rights in the digital context.

d'Aspremont on International Law Poetics

Jean d'Aspremont (University of Manchester - School of Law; Sciences Po Law School) has posted Two Attitudes towards Textuality in International Law: The Battle for Dualism (42 Oxford Journal of Legal Studies (2022) (Forthcoming)) on SSRN.  Here is the abstract:

This article sketches out two distinct attitudes towards textuality in international law, namely international hermeneutics and international poetics. It argues that these two attitudes towards textuality espouse very different types of dualism of thought. The difference that bears major implications on how the international lawyer approaches international legal texts. In exposing these two attitudes towards textuality and the distinct types of dualism they reveal, this article makes a plea for a greater embrace of international poetics by international lawyers, and thus for a complete remoulding of international lawyers’ dualist patterns of thought.

Miller on Fiduciary Liability & Business Judgment

Paul B. Miller (Notre Dame Law School) has posted Fiduciary Liability and Business Judgment (Martin Petrin and Christian Witting, eds., Research Handbook on Corporate Liability (Elgar, Forthcoming)) on SSRN.  Here is the abstract:

This chapter provides a comparative interpretive analysis of the business judgment rule and its relationship to principles governing the fiduciary liability of corporate directors. In broad outline, principles providing for the fiduciary liability of directors under Delaware law are in alignment with those of foreign jurisdictions. However, Delaware charts its own course in the spirit and finer doctrinal detailing of its law. And if any doctrine may be said to singularly reflect the spirit of American corporate law, it is the business judgment rule. American law stands apart for the sheer breadth of latitude it asserts for managerial discretion. And that assertion is made, and thought to be policed, through the business judgment rule.

The business judgment rule appears anomalous in comparative context. First, it seems anomalous within the context of American fiduciary law for, as Julian Velasco has observed, there is no “fiduciary judgment rule” applicable to all fiduciaries. Second, the rule seems distinctive as a matter of comparative corporate law. Aside from legal transplants inspired by Delaware law, most foreign jurisdictions have done without a business judgment rule.

In this chapter I test the appearance of anomaly as well as conventional views about the nature of the business judgment rule and its relationship to basic precepts of fiduciary liability. The interpretive project is one of rational reconstruction: it acknowledges doctrinal irresolution but asks what sense may be made of the rule when presented it is in its best light. The comparative analysis probes the apparent distinctiveness of the business judgment rule. I suggest that, surprisingly, the reconstructed rule is not anomalous, save in being given doctrinal expression (i.e., in being posited as a “rule”). Fiduciary administration is, elsewhere, protected by implicit norms of deference by judges to decisions lawfully made by fiduciaries. I conclude by querying whether the effectiveness of the business judgment rule in the United States – something achieved despite persistent doctrinal irresolution – and the reported ineffectiveness of the rule in other jurisdictions might suggest that causal factors shaping judicial behavior in conformity with the rule’s aims are primarily social rather than legal.

Perris on Coerced Sterilization in Immigration Detention

Caroline Perris (University of California, Davis - School of Law) has posted Ending Coerced Sterilization in Immigration Detention (33 University of Florida Journal of Law & Public Policy, Forthcoming) on SSRN.  Here is the abstract:

Recent reports of coerced sterilizations at the Irwin County Detention Center sparked nationwide public outcry. Yet systemic change to prevent ongoing coerced sterilizations in the U.S. immigration detention system remains to be seen. This article analyzes potential factors that allowed for coerced sterilizations to occur at the Irwin County Detention Center, including the historical influence of eugenics on U.S. policy and issues with informed consent and oversight. In particular, this article highlights how the use of private contractors to operate ICE detention centers prevents meaningful oversight of immigration detention centers and contributes to issues with inadequate and abusive medical care. This article concludes by providing recommendations for reforming ICE policy to prevent future coerced sterilizations, including passing federal legislation modeled after California’s S.B. 1135, a law aimed at addressing coerced sterilizations in the California prison system; revising ICE’s Performance-Based National Detention Standards; ending the use of privatized immigration detention centers; and adopting legislative reforms to improve oversight mechanisms for immigration detention facilities.

Barnett on Deep-State Constitutionalism

Randy E. Barnett (Georgetown University Law Center) has posted Deep-State Constitutionalism (Claremont Review of Books, Spring 2022, at 33, reviewing Common Good Constitutionalism, by Adrian Vermeule. Polity Books, 270 pages (2022)) on SSRN.  Here is the abstract:

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his own conception of the common good, preferring instead merely to assert it without considering other serious alternatives.

To make his case against originalism, Vermeule adopts the approach of Ronald Dworkin, which Dworkin formulated before the development of modern originalist theory. This leads Vermeule to seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it. And yet, in defending himself from the charge that his is just a version of living constitutionalism, Vermeule adopts the fundamental tenets of modern originalism: fixation and constraint. Like living constitutionalists who are "arm chair originalists," however, Vermeule then asserts without showing that the fixed original meaning of the text of the Constitution is so abstract and thin that it permits the direct pursuit of the common good by the government actors unconstrained by the text of the Constitution.

Surprisingly, the government actors Vermeule thinks are most well suited to pursue the common good and implement the natural law are those who work in the federal administrative state. To these bureaucrats he would have the judiciary largely defer--oddly except for environmental regulations where he would allow "public interest" lawsuits to protect the environment. Vermeule provides absolutely no reason to believe that his version of the public good--assuming it is correct--will actually be adopted and served by the administrative state.

Throughout Common Good Constitutionalism, Vermeule fails to confront the strongest versions of the positions he opposes, especially when it comes to originalism. But this book is not really a scholarly project. In my review, I situate it in the current political context to show how Common Good Constitutionalism is largely a work of constitutional polemics, which some social conservatives are finding appealing. But there is very little that is conservative--socially or otherwise--about Adrian Vermeule's commitment to the unfettered regulation of Americans by the deep state.

Hill on Compelled Speech & Complicity under RFRA

B. Jessie Hill (Case Western Reserve University School of Law) has posted Look Who's Talking: Conscience, Complicity, and Compelled Speech (97 Indiana Law Journal 913 (2022)) on SSRN.  Here is the abstract:

Compelled speech claims, which arise under the Free Speech Clause, and complicity claims, which usually arise under the Religious Freedom Restoration Act (RFRA), are structurally similar. In each case, an individual claims that the government is forcing her to participate in a particular act that violates her religious or moral beliefs and imperatives, sending a false and undesired message to others and causing a form of spiritual or dignitary harm. It is therefore no surprise that compelled speech claims are often raised together with complicity claims in cases where religious individuals challenge the application of generally applicable laws to themselves.

In analyzing compelled speech claims, courts and commentators have often considered whether the purportedly compelled message is likely to be perceived as the speech of the objecting individual. In the complicity context, by contrast, courts and commentators generally have not considered whether the problematic act can reasonably be attributed to the individual claimant. Nor do they generally consider whether the individual claimant can take steps to disassociate from the act. This Article argues that the concepts of attribution and disassociation, if applied in the compelled speech context, should also be applied in the complicity context. It also attempts to demonstrate how an analysis of these concepts might proceed in complicity cases. Alternatively, if these concepts fit poorly in the complicity context, they should be rejected in the compelled speech context for the same reasons.

Fichera on the Paradox of Time & the European Union

Massimo Fichera (University of Turku) has posted The Paradox of Large Time on SSRN.  Here is the abstract:

Whereas modern politics begins with the acknowledgement that a polity is temporally limited, modern constitutionalism seeks to respond to the fact of contingency by transcending time and proclaiming the existence of a set of values that are supposed to be shared not only by the present legal-political community, but also by the coming communities. This proclamation risks bringing about a paradox. We might admit of a constitutional system whose validity and authority are established by reference to criteria belonging to the same legal order and yet at the same time whose binding force should be extended to all future generations, by virtue of a generative event placed at the beginning of time and legitimated by a constituent power that dissolves after the moment of creation. Or, alternatively, we could imagine a legal order that, while defining itself constitutional, embraces full contingency. A constitution would, in this latter configuration, be replaced easily in a short timeframe, as a result of its inability to reflect societal values. These are two versions of what is defined in this paper the paradox of ‘large time’ (Grosszeit). In the former case, the legal-political community that is created ex post by the constituting event placed at the beginning of time stretches out indefinitely in the future, thus setting constraints on the action of any other community that follows. However, by virtue of which authority can the commitment of a polity be ensured once and for all without simultaneously compromising the autonomy of its components? In the latter case, the legal-political community is always present, hence located in a particular place, here, and at a particular time, now. However, under such conditions, how could a polity be bound by a commitment to a project – a projectuality – in a setting that is inevitably devoid of narrative?

This is the temporal dimension of the ‘security of the European project’, a meta-constitutional rationale that pervades the activity of European institutions and social actors, as well as scholarly debates. To ensure the long-term survival of the EU and avoid the paradox of ‘large time’, the paper suggests moving from self-referential security to heterarchical security with a view to reconciling constitutionalism and democracy. A useful model in this regard is an adaptation of the ancient idea of ‘mixed constitution’ through an interpretation of legality as auctoritas, i.e. a form of legality associated with constitutional time.

Whalen & Zingg on Patent Eligibility of AI Inventions

Ryan Whalen (The University of Hong Kong - Faculty of Law) & Raphael Zingg (Waseda University) have posted Innovating under Uncertainty: The Patent-Eligibility of Artificial Intelligence after Alice Corp. V. CLS Bank International (The Law and Economics of Privacy, Personal Data, Artificial Intelligence, and Incomplete Monitoring Research in Law and Economics, Volume 30, 59–81 (2022)) on SSRN.  Here is the abstract:

Artificial intelligence-related inventions raise complex questions of how to define the boundaries around patentable subject matter. In the United States, many claim that the recent doctrinal developments by the Supreme Court have led to incoherence and excessive uncertainty within the innovation community. In response, policymakers and stakeholders have suggested legislative amendments to address these concerns. We first review these developments, and subsequently use the patent examination record to empirically test the claims of increased uncertainty. We find that, although uncertainty did spike following the Supreme Court’s holding in Alice, it quickly returned to levels comparable to its historic norm. This has implications both for those advocating for legislative changes to the law of eligible subject matter, as well as other jurisdictions considering adopting a test similar to that applied in Alice.

Platt on the SEC Whistleblower Bounty Program

Alexander I. Platt (University of Kansas School of Law) has posted The Whistleblower Industrial Complex on SSRN.  Here is the abstract:

Ten years ago, the Securities and Exchange Commission made its first “bounty” payment to an individual who’d tipped the agency off to illegal activity. Since then, the agency’s whistleblower program and others like it around the government have grown rapidly, received universal acclaim, and become a core element of corporate law enforcement.

Yet, despite the growth, acclaim, and wide acceptance of these programs, little is known about how they actually work. Last year, the SEC received an average of 49 tips every single work day. The program’s success depends on the SEC’s ability to efficiently and reliably sift through this flood of tips and determine which ones merit further investigation. But, to date, the agency’s tip-sifting process has been entirely shrouded in secrecy.

This paper breaks new ground, offering a rare glimpse “under the hood” of the SEC’s whistleblower program. Using information obtained under the Freedom of Information Act, I present the first empirical examination of private whistleblower attorneys’ role in shaping the SEC’s selection of tips to investigate and reward. Among other things, I find that tipsters represented by lawyers outperform unrepresented ones, repeat-player lawyers outperform first-timers, and lawyers who used to work at the SEC outperform just about everybody. I also find that solo practitioners and traditional plaintiffs’ firms have done well, while female lawyers and large defense-side firms have not.

Drawing on these findings, the paper proposes a set of reforms to further elucidate and enhance the critical role played by these private actors in this important public program.

Siegel, Mayeri, & Murray on Equal Protection & the Dobbs Draft

Reva Siegel (Yale University - Law School), Serena Mayeri (University of Pennsylvania Carey Law School), & Melissa Murray (New York University, School of Law) have posted Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context (43 Columbia Journal of Gender and Law (2023 Forthcoming)) on SSRN.  Here is abstract:

In the leaked draft of Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito dismissed the Equal Protection Clause as an alternative ground of the abortion right, citing an amicus brief in which we advanced that argument. In dicta, Justice Alito claimed that precedents foreclosed the brief’s arguments (pp. 10-11).

Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.

This Essay, written before Justice Alito’s draft leaked, explains the brief’s equal protection arguments for abortion rights, and shows how these equality-based arguments open up crucial conversations that extend far beyond abortion.

* * * 
Equality challenges to abortion bans preceded Roe, and will continue long after Dobbs v. Jackson Women’s Health Organization, however the Court rules in that case. In this Essay we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause.

Our brief shows how the canonical equal protection cases United States v. Virginia and Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. Abortion bans classify by sex. Equal protection requires the government to explain why group-based rather than facially-neutral regulations best serve its ends, especially when the challenged laws perpetuate historic forms of group-based harm. As we show, Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends.

Our brief asks: Could the state have pursued these same life- and health-protective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. The equal protection argument can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that help families flourish.

Sunstein on the Alito Draft in Dobbs

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) has posted The Alito Draft on SSRN.  Here is the abstract:

The draft opinion of Justice Samuel Alito, Jr. in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. More specifically, it is founded on Burkean arguments, emphasizing the importance of respect for traditions and (secondarily) Thayerian arguments, emphasizing the need to give the democratic process room to maneuver. With Burkean and Thayerian arguments at work, the Alito draft offers a distinctive understanding of the Due Process Clause, which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty” as the United States has long understood it. Rooted in due process traditionalism, the Alito draft is not an “originalist” opinion, and it would not be simple to defend it in originalist terms. Within the opinion’s own logic, a major challenge is to accept due process traditionalism without simultaneously throwing a variety of emphatically nontraditionalist or anti-traditionalist substantive due process cases into doubt, even though they have nothing to do with abortion (including the right to engage in same-sex sexual relations and the right to same-sex marriage). There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditionalist or antitraditionalist jurisprudence in other areas of constitutional law, including free speech, takings, and equal protection, where the Court has repudiated multiple traditions, understanding itself as a kind of “forum of principle,” in a way that produces far more expansive understandings of rights than could be justified by an inquiry into tradition and ordered liberty. For example, the Court has rejected free speech traditionalism (in protecting libel), takings clause traditionalism (in protecting against regulatory takings), and equal protection traditionalism (in protecting against sex discrimination). A central reason must be that the Court believes in some forms of moral progress, and has at least some faith in the judicial capacity to incorporate certain forms of moral progress into constitutional law.

Highly recommended.

Friedman on Police & Unhoused Persons

Barry Friedman (New York University School of Law) has posted Are Police the Key to Public Safety?: The Case of the Unhoused (59 Amer. Crim. L. Rev (2022 Forthcoming)) on SSRN.  Here is the abstract:

We as a nation have to think deeply about what it means for a community to be safe, and what role the police play (or do not play) in achieving that safety. We’ve conflated, if not entirely confused, two very different things. One is the desire to be safe, and how society can assist with safety, even for the most marginalized or least well-off among us. The other is the role of the police. Contrary to what many seem to think, the police are not a one-size-fits-all provider of public safety.

In this paper, I discuss this issue in the context of one of the most intractable and challenging problems in the United States, that of unhoused individuals living among us. Rather than doing what we are able to help those who are unhoused to safety, we criminalize their conduct. This does not solve the problem—indeed it creates a revolving door of street to jail to street. We reach this result because we fail to utilize cost-benefit analysis around public safety issues and are especially neglectful of social costs. And also because we fail to have a candid conversation about what public safety means, and how to achieve it. The paper suggests alternative approaches to public safety, instead of relying so heavily on the police. One of them is an untried idea of creating an entirely new set of first responder—individuals holistically trained, including in social services, mediation, and much else—to deal effectively with social needs they encounter on the streets.

Highly recommended.

Gordon-Tapiero, Wood, & Ligett on Platform Personalization

Ayelet Gordon-Tapiero (Hebrew University of Jerusalem - The Rachel and Selim Benin School of Computer Science and Engineering), Alexandra Wood (Harvard University - Berkman Klein Center for Internet & Society), & Katrina Ligett (Hebrew University of Jerusalem - Benin School of Computer Science and Engineering) have posted The Case for Establishing a Collective Perspective to Address the Harms of Platform Personalization (Vanderbilt Journal of Entertainment & Technology Law, Forthcoming) on SSRN.  Here is the abstract:

Personalization on digital platforms drives a broad range of harms, including misinformation, manipulation, social polarization, subversion of autonomy, and discrimination. In recent years, policymakers, civil society advocates, and researchers have proposed a wide range of interventions to address these challenges. In this Article, we argue that the emerging toolkit reflects an individualistic view of both personal data and data-driven harms that will likely be inadequate to address growing harms in the global data ecosystem. We maintain that interventions must be grounded in an understanding of the fundamentally collective nature of data, wherein platforms leverage complex patterns of behaviors and characteristics observed across a large population to draw inferences and make predictions about individuals.

Using the lens of the collective nature of data, we evaluate various approaches to addressing personalization-driven harms under current consideration. This lens also allows us to frame concrete guidance for future legislation in this space and advocate meaningful transparency that goes far beyond current transparency proposals. We offer a roadmap for what meaningful transparency must constitute: a collective perspective providing a third party with ongoing insight into the information gathered and observed about individuals and how it correlates with any personalized content they receive, across a large, representative population. These insights would enable the third party to understand, identify, quantify, and address cases of personalization-driven harms. We discuss how such transparency can be achieved without sacrificing privacy and provide guidelines for legislation to support the development of such transparency.

Legal Theory Lexicon: Reflective Equilibrium

Introduction

When we argue about the law we frequently deploy normative arguments.  Sometimes our normative arguments appeal directly to our intuitions (or considered judgments) about particular cases; sometimes we rely on general theories (e.g., welfarism or Locke's social contract theory).  This leads to the question: how can we justify our normative judgments and theories?  One answer to this question is provided by the idea of "reflective equilibrium," strongly associated with the work of John Rawls.  We could take our intuitions about particular cases and test them against our moral general beliefs, e.g., moral principles or theories--and vice versa.  Through a process of revision and reflection, we could aim for a consistent set of beliefs--where our judgments about particular cases were consistent with a coherent set of general principles.  We can call this point of repose, "reflective equilibrium."

This entry is in the Legal Theory Lexicon provides a short introduction to the idea of reflective equilibrium for law students (especially first-year students) with an interest in legal theory.  Although the primary emphasis will be on the role of reflective equilibrium in normative legal theory, we will also investigate reflective equilibrium as a method for legal reasoning.

The Basic Idea

Legal theory is full of normative judgments.  We argue that a particular statute is just or that it produces morally good consequences.  We believe that a particular court decision is wrong in the moral sense--that it violates someone's rights or that its on balance effect is harmful.

How can we justify our normative judgments?  We might try the method of geometry--beginning with indubitable moral axioms and then reaching particular cases by chains of deductive argument, but this method will run into difficulties if someone challenges the self-evidence of our starting premises.  The method of reflective equilibrium offers an alternative to the method of geometry.  It begins with our current set of  beliefs--our moral theories, the moral principles we accept, and our judgments about particular cases.  We look for contradictions and inconsistencies and then revise.  These revisions might operate at the level of particulars--we might change our mind about a particular case (real or hypothetical) because it seems inconsistent with a general principle.  Or the revisions might go the other way.  We might discover that a moral theory or principle that seemed correct is inconsistent with firmly held beliefs about particular cases.  By working back and forth, between and among our beliefs at various levels of generality and particularity, we might eventually reach a state in which all or almost all of our moral beliefs were consistent and mutually supporting--in other words, a state of reflective equilibrium.

Two Clarifications

Intuitions versus Considered Judgments

Sometimes the method of reflective equilibrium is said to rely on "intuitions" or our intuitive judgments about particular cases.  This might be problematic, because our intuitive judgments might be defective--for example, they could be the product of prejudice, self-deception, or ideological indoctrination.  Rawls introduces the notion of a "considered judgment" to reflect the idea that our prereflective intuitions can be examined, both for sources of error and for coherence with each other.

Levels of Generality

Another misunderstanding of reflective equilibrium is the notion that it must start with our judgments about particular cases, i.e., that it proceeds from the particular to the general.  This might be the case, but it need not be.  The method can operate on our judgments at any level of generality.  For example, we could examine our judgments about moral principles and test their consistency with each other.

Wide and Narrow Reflective Equilibrium

In more advanced discussions of reflective equilibrium, a distinction is sometimes made between "wide" and "narrow" reflective equilibrium.  For the purposes of this post, we can characterize the difference this way:

Narrow Reflective Equilibrium:  The considered judgments of an individual on constitutional theory are in narrow reflective equilibrium when they are consistent and mutually supportive with each other.

Wide Reflective Equilibrium: The considered judgments of an individual on constitutional theory are in wide reflective if they consider the “conditions under which it would be fair for reasonable people to choose among competing principles [of constitutional theory], as well as evidence that the resulting principles constitute a feasible or stable conception of justice, that is, that people could sustain their commitment to such principles.”

Wide reflective equilibrium takes into account the reasonable views of others, where as narrow reflective equilibrium can be reached on the basis of the an individual's own views.

Reflective Equilibrium and Normative Legal Theory

So how can the legal theorist use the idea of reflective equilibrium?  The most obvious deployment of this idea is as a method of justification in normative legal theory.  This might occur at the "macro" level--for example, as a method for justifying welfarism as a normative theory of law.  Or it might occur with respect to domain specific normative legal theories, e.g., as a justification for a corrective-justice theory of tort law or a retributivist theory of criminal punishment.

Similarly, reflective equilibrium could play a critical role.  One might argue against a normative legal theory on the ground that the theory is inconsistent with our considered judgments about particular cases or case types.  Of course, this use of reflective equilibrium is tricky--since one can argue that the recalcitrant judgments should be modified in order to achieve reflective equilibrium.

Reflective Equilibrium and Legal Reasoning

Sometimes the content of the law can be determined by roughly formalist methods.  There is an authoritative legal text (a clause in the constitution, a statutory provisions, a rule or regulation); the text provides a more or less bright-line rule that guides behavior or resolves a dispute.  But sometimes the content of the law is less clear.  There is especially noticeable in common-law systems, in which the content of the rules is determined in a complex way by cases.  What do we do when the results of the cases are not fully consistent or when different cases state the rules in varying and inconsistent language?  One possible answer to this question is "use the method of reflective equilibrium!"

For example, we might take the decided cases as providing the equivalent of considered judgments about particular cases, and we could take rule statements as the equivalent of moral principles.  Our quest would be for the set of rules that accounts for the greatest number of cases and possesses the maximal degree of internal coherence.  If the cases are in tension with one another, there some cases will have to be counted as "mistakes"--the doctrine in reflective equilibrium would call for them to be overruled or confined to their facts.

Of course, something like this method is familiar to most law students, because courts do seem to seek something like "reflective equilibrium" at least some of the time.  In legal theory, the method of reflective equilibrium resembles Dworkin's theory, "law as integrity" and the "reasoned elaboration of the law" associated with the "Legal Process" school.

Criticisms of the Method of Reflective Equilbrium

The method of reflective equilibrium is controversial.  One might argue that the method relies on our "intuitions" about particular cases and that these intuitions are unreliable.  Or one might argue that reflective equilibrium can always be satisfied by moral principles with multitudinous exceptions for recalcitrant judgments about particular cases.  And these simplistic objections are just the beginning.

Conclusion

Reflective equilibrium is one of the most important tools in the legal theorists toolkit.  And even if you don't embrace this method yourself, you are sure to run into others who rely on it. 

Related Lexicon Entries

• Legal Theory Lexicon 006: The Veil of Ignorance 
• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 059: The Law Is A Seamless Web
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography

• John Rawls, A Theory of Justice: Original Edition (Harvard University Press 1971) & A Theory of Justice Revised Edition.
• John Rawls, Outline of a Decision Procedure for Ethics,  60 Philosophical Review 177–97 (1951), reprinted in John Rawls, Collected Papers  (Samuel Freeman ed., Harvard University Press 1999).
• Norman Daniels, Wide Reflective Equilibrium and Theory Acceptance in Ethics, 76 Journal of Philosophy 256–82 (1979), reprinted in Normal Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (Cambridge Studies in Philosophy and Public Policy) 21-46 (Cambridge University Press, 1996).
• John Mikhail, Rawls' Concept of Reflective Equilibrium and its Original Function in 'A Theory of Justice', 3 Washington University Jurisprudence Review 1 (2010).

Resources on the Internet

• Norman Daniels, Reflective Equilibrium, Stanford Encyclopedia of Philosophy (2011).
• Massimo Pigliucci, Five Minute Philosopher Video: Reflective Equilibrium (2011).
• Reflective Equilibrium, Phil Papers (edited by Edited by Christopher Michael Cloos).

(This entry in the Legal Theory Lexicon was last revised on May 22, 2022.)

Legal Theory Bookworm: "Contemporary Perspectives on Legal Obligation," edited by Bertea

The Legal Theory Bookworm recommends Contemporary Perspectives on Legal Obligation, edited by Stefano Bertea.  Here is a description:

Bringing together world-class scholars who have devoted themselves to the study of legal obligation, this book addresses key dimensions of the current debate: providing novel insights and perspectives, as well as critically discussing the leading theories of legal obligation.

The notion of legal obligation is widely regarded as fundamental by both legal practitioners and legal theorists. For the language that explicitly refers to obligation is pervasive insofar as paradigmatic legal materials make reference to obligation either directly, by specifying what a subject is obligated to do, or indirectly, by attributing rights, privileges, powers, permissions, and other normative statuses to both single individuals and groups. There is, then, broad agreement that obligation constitutes a central element in legal studies. At the same time, however, there is considerable disagreement among contemporary legal theorists about how legal obligation can or should be elucidated. This book accounts for both the significance of obligation in law and the variety of views of legal obligation championed in legal philosophy today.

With contributions from renowned theorists, this book will be invaluable for scholars and students of legal theory, legal philosophy, and jurisprudence.

Contributors include Margaret Martin, R.A. Duff, Brian Bix, and Dale Smith.

Download of the Week: "Experimental Jurisprudence" by Tobia

The Download of the Week is Experimental Jurisprudence by Kevin Tobia.  Here is the abstract:

“Experimental jurisprudence” draws on empirical data to inform questions typically associated with jurisprudence or legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is not only consistent with traditional jurisprudence; it is an essential branch of it.

An important statement by a pioneer.  Highly recommended!  Download it while it's hot!

Brennan on Punishment & Christian Love

Patrick McKinley Brennan (Villanova University School of Law) has posted Punishment Among Friends: Charity-love and Redress of Violations of the Common Good on SSRN.  Here is the abstract:

Retributive hatred of criminals has long been a contested part of the Anglo-American package of general justifying rationales of punishment. This Chapter proposes an account of punishment justified instead by Christian love. Taking as its starting point Jeffrie Murphy’s late work, “Christian Love and Criminal Punishment” (2008), this Chapter develops an account of love as friendship as understood in the theology of Thomas Aquinas. Where love as friendship is allowed to drive the analysis, punishment is ordinarily what the civil authority is obligated to administer to the justly convicted criminal, on condition that the intentions of the punisher be, precisely, the good of criminal and the restoration of the common good. This analysis organized around friendship-love and intention of the good crosscuts the usual dialectics among deterrence, retribution, rehabilitation, and incapacitation, and it rules out hatred of criminals (and opposed to their crimes) as any part of the justification of punishment. Mercy, too, will have a place in a system of criminal justice that takes friendship as the exemplary relationship wherever people dwell together, but here the exercise of mercy, like the imposition of punishment, will have as its aim the restoration of the malefactor to the order of the virtuous. The virtue-theoretic account of punishment developed in this Chapter understands friendship-love as a natural virtue but also a supernatural virtue. Building on the work of Judge John T. Noonan Jr, especially his disagreement in the Harvard Law Review with Judge Richard Posner, the Chapter contends that even amid rank, systemic injustice currently done to criminals in the name of the state, judges sentencing criminals can, at least to a point, witness to the power of the supernatural to correct and transform the natural. Criminal justice reform, if it is to succeed, must make friendship-love the norm and proceed from the conviction that the love God commands he also makes possible. If the central problem of the legal enterprise is the relation of love to power, as Noonan contended, the solution is to hate the crime but love the criminal, doing good to him or her on the model of friendship.

Friedman on Lawless Surveillance

Barry Friedman (New York University School of Law) has posted Lawless Surveillance (97 N.Y.U. L. Rev. (2022 Forthcoming)) on SSRN.  Here is the abstract:

Here in the United States, policing agencies are engaging in mass collection of personal data, building a vast architecture of surveillance. License plate readers collect our location information. Mobile forensics data terminals suck in the contents of cell phones during traffic stops. CCTV maps our movements. Cheap storage means most of this is kept for long periods of time—sometimes into perpetuity. Artificial intelligence makes searching and mining the data a snap. For most of us whose data is collected, stored, and mined, there is no suspicion whatsoever of wrongdoing.

This growing network of surveillance is almost entirely unregulated. It is, in short, lawless. The Fourth Amendment touches almost none of it, either because what is captured occurs in public, and so is supposedly “knowingly exposed,” or because of doctrine that shields information collected from third parties. It is unregulated by statutes because legislative bodies—when they even know about these surveillance systems—see little profit in taking on the police.

In the face of growing concern over such surveillance, this Article argues there is a constitutional solution sitting in plain view. In virtually every other instance in which personal information is collected by the government, courts require that a sound regulatory scheme be in place before information collection occurs. The rulings on the mandatory nature of regulation are remarkably similar, no matter under which clause of the Constitution collection is challenged.

This Article excavates this enormous body of precedent and applies it to the problem of government mass data collection. It argues that before the government can engage in such surveillance, there must be a regulatory scheme in place. And by changing the default rule from allowing police to collect absent legislative prohibition, to banning collection until there is legislative action, legislatures will be compelled to act (or there will be no surveillance). The Article defines what a minimally-acceptable regulatory scheme for mass data collection must include, and shows how it can be grounded in the Constitution.

Highly recommended.

Sherwin on Audiovisual Evidence & the Second Trump Impeachment

Richard K. Sherwin (New York Law School) has posted Law’s Tacit Dimension: Audiovisual Proof of Incitement in the Impeachment Trial of Donald J. Trump (International Journal for the Semiotics of Law) on SSRN.  Here is the abstract:

In arguing their case for the impeachment of Donald J. Trump for inciting a violent insurrection, prosecutors made extensive use of video images of Trump supporters violently overtaking Capitol police and ransacking the Capitol building once they had forced their way inside. But the rally video that immediately preceded Trump’s January 6 speech was ignored completely. Should it have been brought into the prosecution’s case? If it had been, how might it have aided the prosecution’s contention that Trump was guilty of inciting violent insurrection?

In this article, I contend that the prosecution team’s insufficient understanding of how, and with what predictable behavioral impact, Trump’s video helped to incite his supporters to violent insurrection plausibly accounts for their failure to make use of it. This lost opportunity provides a useful test case for exploring law’s operation in the tacit dimension of thinking with pictures and sounds – a mode of thinking that is resistant but not impervious to critical reflection and collective deliberation.

It can hardly be gainsaid that thinking with sounds and images occupies an increasingly influential, if not dominant role in society. Given this reality, we can ill-afford to ignore the implications of such a massive blind spot when it comes to the strategic composition and critical assessment of such a pervasive form of communication. If the fate of liberal democracy turns on preserving modes of public communication that are indispensable to the discovery and dissemination of factual truth in the quest for justice, then jurists and lay citizens alike must strive for greater audiovisual literacy.

Ferraz & Soares on Socially Optimal Crime

Eduardo Ferraz (Universidad del Rosario) & Rodrigo R. Soares (Columbia University - School of International & Public Affairs (SIPA); Getulio Vargas Foundation (FGV) - Sao Paulo School of Economics; IZA Institute of Labor Economics) have posted Socially Optimal Crime and Punishment on SSRN.  Here is the abstract:

This paper develops a dynamic life-cycle equilibrium model of crime with hetero-geneous agents and human capital accumulation. Agents decide at each point in time whether to commit crimes by comparing potential gains from crime to the expected cost of punishment (determined from the probability of apprehension, the utility cost of incarceration, and reduced future wages in the legal labor market). Public security policies are defined as pairs of a size of the police force and an average length of sentences. We propose an original micro-founded police production function linking the level of police expenditures to the probability of apprehension. The structural model, estimated using 2000s US data and causal parameters from the empirical literature, allows us to evaluate the global optimality of policies in a way that would not be possible with reduced form estimates or traditional partial equilibrium, static models of crime. Equilibrium effects can be particularly relevant when studying crime, given the interactions across individuals' decisions and policies. We also extend the model to include investments in schooling and explore the potential complementarities across public security and educational policies.

Pushaw on the Original Meaning of the Commerce Clause (Link Fixed)

Robert J. Pushaw (Pepperdine University - Rick J. Caruso School of Law) has posted The Original “Market” Understanding of the Commerce Clause: Insights From Early Federal Practice and Precedent (Brigham Young University Law Review, Forthcoming) on SSRN.  Here is the abstract:

This article presents the first comprehensive early history of Congress’s power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In seeking to discover the original meaning of the Commerce Clause (CC), scholars have focused almost exclusively on the records of the Conventions that drafted and ratified the Constitution. Although I have also examined these sources, I have added an exhaustive survey of legal materials that have been largely ignored: the CC’s interpretation and application by Congress, the executive branch, and the Supreme Court from 1789 to 1829.

Those documents establish that the CC imposed two requirements. First, Congress could regulate only “commerce”—voluntary sales of goods and services and accompanying activities (such as manufacturing and agriculture) geared toward the market. Second, such “commerce” had to (1) be “with” a foreign country or Indian Tribe, or (2) have a measurable impact in more than one state. These limitations are critical because the Framers did not grant Congress general authority, but rather carefully enumerated its powers and left all others to the states or “We the People.” My two-step framework precisely tracks the CC’s language, reinforces the Constitution’s structure, and faithfully reflects the Convention and Ratification debates and the federal government’s early implementation of the CC. By contrast, alternative historical accounts are unpersuasive.

On the one hand, Justice Thomas and scholars such as Richard Epstein and Randy Barnett have contended that the Supreme Court from 1836–1936 correctly interpreted the CC as authorizing Congress to regulate as “commerce” only the sale or transportation of goods. This narrow view, however, ignores that the CC allowed Congress to reach all other market-oriented activities, such as the production of goods and compensated services like banking and labor.

On the other hand, the modern Court has upheld CC legislation as long as Congress could have had a rational basis for determining that the regulated activity, considered in the aggregate, substantially affects interstate commerce. Every statute has passed this test, with a few trivial exceptions. The Court has thereby allowed Congress to exercise unrestrained discretion, without ever justifying this result in light of the CC’s original meaning. Akhil Amar and Jack Balkin have attempted to do so by making two arguments. First, the word “commerce” signified “intercourse”—all interactions, not merely economic but also social and political. Second, the phrase “among the states” authorized Congress to legislate in the national interest, especially when states acting separately could not adequately handle an issue. Accordingly, Amar and Balkin claim that Congress can intervene whenever it concludes that it should address any interactions which extend beyond one state’s boundaries and which create problems that can only be resolved at the national level. The foregoing approach would sustain virtually all CC statutes.

Unfortunately, Professors Amar and Balkin have not cited anyone from 1787 to 1829 who stated or implied that the CC empowered Congress to reach all interactions—as contrasted with merely “commercial” (i.e., market-based) activities—that had out-of-state ramifications. This void forces these scholars to resort to two strained claims.
First, they assert that the CC may have incorporated an uncommon usage of “commerce” as “intercourse” found in various British linguistic, literary, philosophical, and religious works. However, most of these documents were published long before 1787; none concerned the legal meaning of “to regulate commerce;” and no one who participated in America’s Constitution-making process ever alluded to this unusual usage.

Second, Amar and Balkin maintain that early federal government officials construed Congress’s power “to regulate commerce with Indian Tribes” as encompassing all “intercourse” with such Tribes—and that therefore this same broad interpretation should apply in the interstate context. On the contrary, the evidence overwhelmingly demonstrates that these officials faithfully adhered to the Framers’ intent and the Ratifiers’ understanding that (1) the Indian Commerce Clause authorized Congress to address only market-oriented activities (such as trade) with the Tribes; and (2) other constitutional provisions and principles conferred exclusive federal authority to deal with all other matters involving Indians, most notably warfare, treaties, and crimes. Moreover, laws governing the unique field of Indian affairs shed little light on Congress’s distinct power to regulate interstate commerce.

Rather, the directly relevant legal materials—federal legislation, executive practice, and Court cases on the CC from 1789 to 1829—reveal the universal understanding that the CC was confined to market-based activity. Remarkably, Professors Amar and Balkin do not mention, much less grapple with, any of this historical evidence.

In short, an objective analysis of the Commerce Clause’s text and surrounding history leads to the conclusion that the Amar/Balkin “intercourse” idea is too expansive, whereas the Thomas/Epstein/Barnett “trade and transportation of goods” thesis is too narrow. Rather, Congress could regulate all market-directed actions that transcended state borders.

Recommended.