Legal Theory Blog

Grove on "Ordinary Meaning"

Tara Leigh Grove (University of Texas School of Law) has posted Testing Textualism’s “Ordinary Meaning” (George Washington Law Review, Vol. 90, No. 5, 2022) on SSRN.  Here is the abstract:

This Foreword to an annual issue on Administrative Law explores the concept of “ordinary meaning” in statutory interpretation. The Foreword challenges two central assumptions underlying some recent empirical scholarship: first, that “ordinary meaning” should be viewed primarily as an empirical concept, and, second, that textualists themselves view “ordinary meaning” in empirical terms. As the Foreword shows, “ordinary meaning” can be understood as a legal concept, not simply as an empirical fact. Moreover, the Foreword demonstrates that many prominent textualists have long treated “ordinary meaning” as a legal concept—one that must be elucidated through the understanding of a hypothetical reasonable reader (although, as the Foreword discusses, textualists debate how well-informed such a reasonable reader should be). This analysis complicates recent efforts to test empirically whether textualists have reached the “right answer” in specific cases. For many textualists, like many other interpretive theorists, statutory analysis is primarily a normative, not an empirical, enterprise.

Highly recommended.

Lessig on "Privileges or Immunities"

Lawrence Lessig (Harvard Law School) has posted Privileges or Immunities: A Judicially Restrained and Originalist Understanding on SSRN.  Here is the abstract:

Conservative constitutionalism was born in a practice of judicial restraint, informed by originalism as its theory of interpretation. Dobbs is an obvious implication of both. But building on the work of Niko Bowie, this essay argues that those same principles should entail Congress's 14th Amendment power, under the "privileges or immunities clause," to determine federal privileges or immunities — including the rights recognized in Roe, and a power to regulate the scope of the 'right to bear arms.' Such an understanding makes sense of the original meaning of "privileges or immunities" as well as The Slaughterhouse Cases, and it affirms a principle of judicial restraint. The essay ends with recommendations about how Congress might best reassert its 14th Amendment authority and with a call for less partial originalism in the interpretation of the Civil War Amendments especially.

Highly recommended.

Binder & Yankah on Police Killings and Felony Murder

Guyora Binder (University at Buffalo Law School) & Ekow N. Yankah (Yeshiva University - Benjamin N. Cardozo School of Law) have posted Police Killings as Felony Murder (17 Harvard Law and Policy Review ___ (2022)) on SSRN.  Here is the abstract:

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employed the widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police officer, not an “agent” of the felony. In these “proximate cause” jurisdictions, felony murder is far more often used to prosecute the (often Black) targets of police violence, than to prosecute culpable police.

Previous scholarship on prosecution of felons for killings by police criticized such proximate cause rules as departures from the “agency” rules required by precedent. But today’s proximate cause felony murder rules were enacted legislatively during the War on Crime and are thus immune to this traditional argument. The authors instead offer a racial justice critique of proximate cause felony murder rules as discriminatory in effect, and as unjustly shifting blame for reckless policing onto its victims. Noting racially disparate patterns of charging felony murder, and particularly in cases where police have killed, the authors call on legislatures to reimpose “agency” limits on felony murder as a prophylactic against discrimination. Finally, the authors widen this racial justice critique to encompass felony murder as a whole, urging legislatures to abolish felony murder wherever racially disparate patterns of charging can be demonstrated.

Highly recommended.  Download it while it's hot!

Abraham & White on "The Nature of the Judicial Process" by Cardozo

Kenneth S. Abraham (University of Virginia School of Law) & G. Edward White (University of Virginia School of Law) have posted Doctrinal Forks in the Road: The Hidden Message of The Nature of the Judicial Process (Yale Journal of Law and the Humanities, Symposium on the One-Hundredth Anniversary of Cardozo’s The Nature of the Judicial Process, Forthcoming) on SSRN.  Here is the abstract:

This Essay was prepared for a Symposium at the Yale Law School, celebrating the one-hundredth anniversary of The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921. Revisiting these lectures presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal 'path', or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.

We then show how Cardozo employed the concepts of doctrinal paths and 'forks in the road' in several of his most famous torts cases. We conclude that when Cardozo’s discussion of those concepts is understood as one of the principal contributions of The Nature of the Judicial Process, the lectures can be understood to be of lasting as well as historical significance.

Highly recommended.

Leal-Arcas et al on Climate Neutrality & International Trade

Rafael Leal-Arcas (Queen Mary University of London, School of Law), Luis Ulloa Martinez (Queen Mary University of London), Victory Abang (Queen Mary University of London), Krishma Kapur (Queen Mary University of London), Saffron Greenwod (Queen Mary University of London), Konstantinos Chatzopoulos (Queen Mary University of London), Archana Nair (Queen Mary University of London), & Lisa Schoettmer (Queen Mary University of London) have posted Climate Neutrality and Sustainability in International Trade ((Forthcoming) University of Pennsylvania Journal of International Law, Vol. 44, No. 3, 2023) on SSRN.  Here is the abstract:

This article explores the links between climate neutrality and sustainability in the context of international trade. For that, it tackles seven main concerns: 1) what do industry leaders now need from policymakers to make them the frontrunners in the global transition to climate neutrality? 2) what coalitions are necessary to build and who are the partners and networks to support an ambitious and meaningful business dialogue on the transition to climate-neutral industries? 3) what is the sustainability agenda in the international trading system and what is the path forward for furthering sustainability in trade policy? 4) how will countries reach sustainable global integration? 5) what will be the role of climate change in the future global trading system? 6) what are the possible impacts of climate change on international trade and investment? And 7) what is the European Union’s approach to environmental concerns in trade agreements?

Dooling & Potter Regulatory Contractors

Bridget C.E. Dooling (GW Regulatory Studies Center) & Rachel Augustine Potter (University of Virginia) have posted Regulatory Body Shops on SSRN.  Here is the abstract:

Agencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. In spite of perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, capacity, and more, stemming from the fact that contractors are in privity with the government, not the public. This scholarship does not take up the implications of service contracting for rulemaking, the primary mode of executive branch lawmaking, nor does it delineate between types of contracting arrangements, which vary dramatically.

This Article takes variation in rulemaking contracting arrangements seriously. We define three types: ministerial contractors, who perform administrative work; expertise contractors, who provide discrete scientific and technical inputs; and regulatory body shops, which are embedded into agencies, functioning like staff and encompassing many functions. We argue that while the former two arrangements pose minimal risks to an agency, regulatory body shops are a different story. Not only do they open the door to conflicts of interest issues that are not adequately addressed under current law, they threaten the quality of agency reasoning and have the potential to hollow out an agency’s rulemaking apparatus over the long run. Reliance on regulatory body shops also has the potential to put an agency’s rules in legal jeopardy by violating the Administrative Procedure Act and diminishing an agency’s claim to Chevron deference These various risks, which pose challenges for the quality of public decision-making, sit in tension with the reality that some agencies lack adequate resources to rely exclusively on their staff for rulemaking, turning to regulatory body shops as a pragmatic matter. The Article concludes with reform solutions to help agencies responsibly manage the risks posed by regulatory body shops.

Highly recommended.

Brown on AI & National Security

Gary Brown (Eisenhower School of National Security & Resource Strategy, National Defense University) has posted If You Think AI Won't Eclipse Humanity, You're Probably Just a Human (William & Mary Bill of Rights Journal, Vol. 30, No. 2, 2021) on SSRN.  Here is the abstract:

Building machines that can replicate human thinking and behavior has fascinated people for hundreds of years. Stories about robots date from ancient history through da Vinci to the present. Whether designed to save labor or lives, to provide companionship or protection, loyal, capable, productive machines are a dream of humanity. The modern manifestation of using human-like technology to advance social interests is artificial intelligence (AI). The continuing development of AI is inevitable and its relevance to national security will continue to grow.

Helmers on Judge Shopping & Patent Litigation

Christian Helmers (Santa Clara University - Leavey School of Business; Universidad Carlos III de Madrid) & Brian J. Love (Santa Clara University School of Law) have posted Welcome to Waco! The Impact of Judge Shopping on Litigation on SSRN.  Here is the abstract:

We analyze the effect of judge shopping in patent litigation following the appointment of a former patent litigator as the sole district judge assigned to the Waco Division of the U.S. District Court for the Western District of Texas. We find that patent enforcers’ ability to select with certainty a judge widely regarded as patentee-friendly increased the number of cases filed, especially by non-practicing entities. The increase in litigation was predominantly driven by an influx of cases that would not have been filed but-for the judge’s appointment, rather than a geographic reallocation of cases that would have been filed regardless.

Bhagwat on Social Media Platforms & Common Carrier Status

Ashutosh Avinash Bhagwat (University of California, Davis - School of Law) has posted Why Social Media Platforms Are Not Common Carriers (__ J. Free Speech L. __ (forthcoming 2022)) on SSRN.  Here is the abstract:

In a recent opinion respecting denial of certiorari, Justice Clarence Thomas expressed concerns about the degree of control that a handful of social media platforms exercised over political discourse, and suggested common carrier regulation as a potential solution to this perceived problem. The States of Florida and Texas promptly adopted legislation restricting social media companies’ ability to control content and users on their platforms, explicitly citing the common carrier concept in support. In this paper, I argue that even under Justice Thomas’s (probably incorrect) definition of common carriage, and certainly under the traditional definition, platforms simply are not common carriers. They do not possess any of the characteristics that Justice Thomas himself cited as typical of common carriers; and more fundamentally, they lack the fundamental characteristic—indifference to the content they carry—that is typical of communications common carriers. Indeed, and ironically, it is precisely because platforms are not indifferent to content, and act on their preferences (in particular by deplatforming President Trump), that Thomas proposed, and Florida and Texas adopted, regulation of platforms. These regulations, however, clearly violate the First Amendment, and appear headed for rapid judicial invalidation. Social media platforms, in short, are not common carriers, and cannot be forced to become ones by legislative fiat so long as the First Amendment remains in force. The essay concludes by arguing that common carrier regulation of social media platforms is not only unconstitutional, it is also a terrible idea as a matter of public policy.

Lewis & Usmani on Under-Policing

Christopher Lewis & Adaner Usmani have posted THE INJUSTICE OF UNDER-POLICING IN AMERICA on the MIT Press website.  Here is an excerpt from the introduction:

Since 2014, viral images of Black people being killed at the hands of the police—Michael Brown, Eric Garner, Breonna Taylor, and many, many others—have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States. Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives. And others have called for abolishing the police altogether. It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans—especially poor, Black people. This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.

The American criminal legal system is unjust and inefficient. But, as we argue in this essay, over-policing is not the problem. In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations. In this country, roughly three people are incarcerated per police officer employed. The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate. We argue that the United States has it backward. Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world. We call this the “First World Balance.”

Struth & Thon on Discrimination & Quotas

Lennart Struth (University of Cologne) & Max Thon (University of Cologne) have posted Discrimination, quotas, and stereotypes on SSRN.  Here is the abstract:

We analyze the effect of employment-quota policies on the development of uncertainty and stereotypes in a model of inaccurate statistical discrimination with ambiguity about worker abilities. We show that, even if group characteristics are identical, higher uncertainty about one group can result in discriminatory employment decisions. The success of a quota in correcting the beliefs then depends crucially on the firm’s learning process. In particular, we find that the more confident the firm is in its initial priors, the longer a quota needs to be implemented until beliefs are sufficiently corrected such that discriminatory behavior vanishes.

Dodge on Extraterritoriality

William S. Dodge (University of California, Davis - School of Law) has posted Extraterritoriality of Statutes and Regulations (Research Handbook on Extraterritoriality in International Law (Austen Parrish & Cedric Ryngaert eds, Elgar Publishing, Forthcoming 2022) on SSRN.  Here is the abstract:

This chapter addresses the extraterritoriality of statutes and regulations, which is to say law that is made by the legislative and administrative organs of states. In common law systems, judges also make law. But courts typically determine the applicability of common law rules as a question of choice of law (private international law) rather than extraterritoriality.

This chapter focuses on the United States and the European Union. The United States has a long history of extraterritorial regulation. The US approach to determining the geographic scope of statutes is well-developed and relies primarily on domestic rules of statutory interpretation rather than on customary international law. European nations have often been on the receiving end of US extraterritoriality and have sometimes vigorously opposed such regulation. Today, however, the EU has itself become an important global regulator and actively applies it laws extraterritorially in many fields. In comparison to the US approach, the EU gives more prominence to customary international law. Customary international law, however, permits a great deal of extraterritorial regulation. Within the limits of customary international law, the EU approach is less well-developed and is just beginning to address some of the questions that the United States has dealt with for years.

Recommended.

Dagan & Dorfman on Private Law & Embedded Persons

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) & Avihay Dorfman (Tel Aviv University - Buchmann Faculty of Law) have posted Private Law and The Embedded Person on SSRN.  Here is the abstract:

Private law, we argue, is the law governing our horizontal, personal interactions in a variety of social settings; it is, in short, the law of the embedded person. To refine this understanding, we contrast it with three competing views, which identify “private” with, respectively, the “dissociated person,” the “executive agent,” and the “civic person.”

The first view is associated with the strict (Kantian) division of institutional and moral labor between private law and public law. The second, antithetical view, underlies the otherwise very different positions of the economic analysis of law and the left-leaning critics of liberalism and legalism. Finally, a third approach to private law smooths the rough edges of the first view by insisting that, in a democracy, citizens must not repudiate their civic duties even when interacting in their private capacity and, like the state, they too must respect the human rights of others.

A critical examination of these three prevalent views opens the normative space needed for elucidating our own competing understanding. Private law meets people not as dissociated entities, but rather as individuals embedded in their various interaction settings. Private law, on our view, neither reduces individuals to the role of state delegates nor derives their obligations to one another from any civic duties they owe (or not) to their compatriots.

Private law is the law of the embedded person because it has to address the human condition of interdependence and the fact of personal differences that, as they should, influence the basic rules of human interaction at every turn. Moreover, many private law conceptions and doctrines not only respond to the social settings in which their subjects are embedded but proactively participate in constituting these settings. We argue that a legitimate – let alone an appealing – private law should proactively seek to empower people’s self-determination. Furthermore, it should construct these settings in compliance with the rule fitting the embedded person: reciprocal respect for self-determination and substantive equality, which we call relational justice.

Highly recommended.

Landau & Dixon on Dobbs & Democracy

David Landau (Florida State University - College of Law) & Rosalind Dixon (University of New South Wales (UNSW) - Faculty of Law) have posted Dobbs, Democracy, and Dysfunction on SSRN.  Here is the abstract:

Few recent decisions of the Supreme Court have received as much popular attention as Dobbs v. Jackson Women’s Health. Yet the scholarly evaluation of the decision is just beginning. In this essay, we focus on one important aspect of the Dobbs decision: its emphatic claim to be returning questions of abortion access to “the people,” or to democracy. Dobb’s invocation of democracy has obvious intuitive appeal, but it is a deeply problematic claim. It ignores systemic distortions in state legislatures caused by gerrymandering and other factors. And more specifically in the abortion context, it overlooks the very old laws that pre-date Roe and Roe/Casey-era “messaging” bills never thought likely to go into effect, both of which Dobbs has revived across the country. These laws, which often instantiate draconian bans on abortion access, are dubious measures of contemporary public opinion, but they may end up remaining in effect for a long time because of what we call burdens of inertia and blind spots in state legislative processes. Given these intertwined dysfunctions, Dobbs is far from a pro-democratic decision. Such a claim would be more plausible if (a) issued in a context where the Court was also taking the sources of democratic dysfunction, such as partisan gerrymandering, seriously, and (b) issued in a way that showed sensitivity to the distortions in the democratic process surrounding abortion, many of which were caused by the Court’s own interventions. As well, since the dysfunctions identified on the abortion issue are difficult to eliminate, a decision that took democracy seriously may have required the Court to continue to oversee abortion regulation nationwide with a regime similar to its current approach in Casey. The hollowness of the celebratory reference to democracy in Dobbs raises the question of whether it was sincere, or instead a cynical fig leaf that threatens to further erode the significance of U.S. democracy.

Highly recommended.

Smith on Historical Tradition & Bruen

Michael L. Smith (University of Idaho College of Law) has posted Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. Rather than balancing government interests against the scope of firearms restrictions through strict or intermediate scrutiny, the Bruen Court held that a “historical tradition” approach was required. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.”

At first glance, the historical tradition approach may seem desirable. One might agree with the Bruen Court’s assertion that historical legal analysis is easier than the alternative empirical analysis of gun restrictions and their impacts. And the historical tradition approach seems objective, requiring courts to determine historical legal facts rather than engaging in goal-oriented analysis of the desirability and effectiveness of firearms restrictions.

These first impressions are mistaken. The Bruen Court minimizes the difficulty of the historical tradition approach. And, through its vague and virtually nonexistent guidance on drawing historical analogies, the Court leaves numerous avenues for judges and Justices to inject their preferences as they weigh historical evidence and determine whether sufficient evidence exists to establish a historical tradition. This Article examines the Bruen Court’s statement of the historical tradition approach and reveals multiple instances in which the Bruen Court engaged in shoddy historical analysis and took an inconsistent approach to historic evidence in order to arrive at a desired result. In light of the complexity and malleability of the historical tradition approach, the Court will likely continue to twist this approach to achieve its desired ends—a phenomenon that will likely be magnified in the lower courts and in future decisions in Second Amendment and other constitutional cases.

Timely and recommended.

Re on Statutory Pluralism

Richard M. Re (University of Virginia School of Law) has posted Permissive Interpretation on SSRN.  Here is the abstract:

Should the law of interpretation direct judges to seek out best answers, or only permissible ones? This Article defends the latter approach. In general, judges should have permission to adopt any of three interpretive principles that British scholars have called “the basic rules.” These principles, which have deep roots in Anglo-American law, are essentially moderated versions of textualism, purposivism, and pragmatism. Already, interpretive practice largely if implicitly tracks the basic rules, as evidenced by cases on everything from the major question doctrine to abortion rights. Deliberately adopting these permissive rules would not only surface judges’ interpretive personalities and render them accountable, but also facilitate compromise and, counterintuitively, foster legal determinacy. Permissions thus offer an attractive way to integrate individual justices’ divergent views on interpretation. In addition, the permissive basic rules make room for praise-giving interpretive principles, or “plaudits,” and also provide an historical basis for “strict scrutiny,” particularly the practice of overriding constitutional rights based on “compelling interests.”

Highly recommended.  Download it while it's hot!

Fisher on Childhood Statelessness

Betsy L. Fisher (University of Michigan Law School) has posted Gender and Birth Status Discrimination and Childhood Statelessness (The World's Stateless 185 (2017), https://www.institutesi.org/worldsstateless17.pdf) on SSRN.  Here is the abstract:

This chapter summarizes a longer article, "Gender Discrimination and Statelessness in the Gulf Cooperation Council States," 23 Michigan J. Gender & L. 329 (2016), in a volume on statelessness, human rights, and children.

Barriola, Deffains, & Musy on Inequality & Common versus Civil Law Systems

Illan Barriola, Bruno Deffains (Université Paris II - Panthéon-Assas; Institut Universitaire de France), & Olivier Musy have posted Law and Inequality: A Comparative Approach to the Distributive Implications of Legal Systems on SSRN.  Here is the abstract:

The literature on legal traditions focuses on the comparative macroeconomic effects of legal systems concentrating on efficiency alone and leaving distributive issues to taxation. However, the legal structure of a country also conditions the primary distribution of income and can have a comparative advantage as a distributive tool relative to taxation. We use cross-section and panel estimates to show that the level of income inequality in a country is indeed correlated with its legal system. By several measures of inequality, on average, common law countries are more unequal than civil law countries. We explain these results by the nature of the systems. The reduced regulation of common law countries limits their capacity to achieve social objectives such as combating income inequality.

Walters on Smart Devices & Personal Data

Robert Walters (Victoria University - Adjunct Professor European Faculty of Law) has posted Transnational Flow of Personal Data in Home and Office Devices on SSRN.  Here is the abstract:

The world is embracing Artificial Intelligence (AI) at a rapid rate, and over the forthcoming decade it is likely to pervade the daily lives of everybody. Countries are developing, embracing and adopting AI at varying rates, some more rapidly than others. On the one hand, the application of AI in managing the smart home infrastructure will pave the way for personal data to be gathered from the automated devices. It will be that advanced, the technology will be able to predict user behaviour, provide maintenance data, help enhance data security and privacy. This can be achieved, by connecting devices throughout the homes by many different devices. Nonetheless, as people begin to adopt new technology in the home, or otherwise known as Smart Home technology (robots, televisions, fridges, toys etc.), the access to personal data will be on an unprecedented level. Conversely, the privacy intrusions may out-weigh the benefits of the technology. Apart from the social and economic benefits that AI will bring into the home, it will have it downsides. There is an emerging debate as to the safety of personal data, and privacy from these devices. In other words, what has emerged is the notion of dataveillance or behavioural data that, is able to detect and store specific data on and individual, enabling others to learn intimate knowledge of actions, moods and expression, amongst others. Arguably, some of the most vulnerable cohorts will be children, the disabled and elderly, from the use of this technology, and the personal data that entities are able to capture, and subsequently use for financial gain. Furthermore, problematic is the development of ‘behavioural data’. Behavioural data, has the ability to create significant bias based on race, ethnicity, religion, disability and language. Put another way, behavioural data has many similarities to dataveillance. This paper will briefly highlight how transnational data flows from the devices have the potential to create and restrict competition. The paper further confirms that a recent study in 2021, demonstrated that as this economic activity (data flows) grows there are increasing security concerns and issues that expose personal and commercial data. Further research is needed to reconcile the law with the technology, to ensure data flows are providing their intended economic benefits, with that of protecting the personal data captured and used by in home and office devices.

van Schilfgaarde et al on Indian Country & Abortion

Lauren van Schilfgaarde (UCLA School of Law), Aila Hoss (Indiana University McKinney School of Law), Sarah Deer (University of Kansas), Ann E. Tweedy (University of South Dakota School of Law), Stacy Leeds (Arizona State University (ASU) - Sandra Day O’Connor College of Law) have posted The Indian Country Abortion Safe Harbor Fallacy on SSRN.  Here is the abstract:

Following the leaked draft of the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, several conservative states have moved to restrict access to abortion. In response, commentators have raised the possibility of an abortion “safe harbor” on tribal lands. However, as we argue in this post, this proposal overlooks important legal, financial, political, and ethical considerations that, in our view, make the possibility of abortion safe harbors highly unlikely. Intuitively, tribes should possess the territorial authority to regulate reproductive healthcare as they see fit. But Native women know all-too-well these terms and promises are currently thin veneers atop a historical mountain of oppression. Native reproductive health has been under assault since contact. Native midwifery, healing, marital customs, kinship ties, and gender identity have all been targeted by assimilation policies. Native reproductive health has been corralled into under-funded yet paternalistic clinics. To turn to tribes reveals a disappointing ignorance of the legal battles tribes have been fighting, seemingly without end. But it also reveals a problematic disregard for the trauma and vulnerability that Native peoples face.

Baude & Sachs on "Common Good Constitutionalism" by Vermeule

William Baude (University of Chicago - Law School) & Stephen E. Sachs (Harvard Law School) have posted The "Common-Good" Manifesto (Harvard Law Review, Forthcoming) on SSRN.  Here is the abstract:

In “Common Good Constitutionalism,” Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor.

Highly recommended.  Download it while it's hot!

For more, see the discussion here, here, and here.

Gostin et al on an International Pandemic Agreement

Lawrence O. Gostin (Georgetown University - Law Center - O'Neill Institute for National and Global Health Law), Kevin A. Klock (Foundation for the National Institutes of Health; Georgetown University Law Center), Sam Halabi (O'Neill Institute for National and Global Health Law; University of Missouri School of Law), Katie Gottschalk (O'Neill Institute for National and Global Health Law), Katherine Ginsbach (Georgetown University - The O'Neill Institute for National and Global Health Law), & Kashish Aneja (Georgetown University - The O'Neill Institute for National and Global Health Law) have posted What Nations Owe Each Other Before the Next Pandemic (Think Global Health, July 13, 2022) on SSRN.  Here is the abstract:

On December 1, 2021, the World Health Assembly adopted a resolution establishing an Intergovernmental Negotiating Body (INB) to determine the content and form of a new pandemic agreement. A portion of the public has advocated for a non-binding agreement while others stress that nationalism should be prevented, with steps taken to monitor and enforce national compliance. The INB has needed to grapple with how the principle of national sovereignty, and the accompanying principle of non-interference, will be addressed with respect to the agreement’s content and form, including obligations to share data, resources, and personnel, and to relinquish control over certain aspects of national coordination and response. To provide technical assistance to the World Health Organization (WHO), INB, and the public concerning this challenge, the O’Neill Institute for National and Global Health Law, a WHO Collaborating Center, and the Foundation for the National Institutes of Health (FNIH) convened leading authorities from every WHO region on international agreements in trade, regional integration, public health emergency preparedness, finance, biomedical science, climate change, maritime affairs, tobacco control, and human rights. Through a series of written, bilateral, and group discussions, we sought to provide the INB with a learned analysis of the stringency and stickiness of international commitments and the often nonobvious relationship between norm-setting and regime compliance to inform its dialogue. This paper is a condensed version of the outcomes of those discussions, which have utility for contemplating any new agreement under international law. The full report, National Sovereignty Implications of a Pandemic Instrument can be found at the O'Neil Institute website.

Frye on Antiplagiarism & Antitrust

Brian L. Frye (University of Kentucky - College of Law; Dogecoin DAO Legal Scholarship Page) has posted Hipster Antiplagiarism on SSRN.  Her eis the abstract:

This essay observes that plagiarism norms might be an antitrust problem, and asks what the Chicago School and New Brandeis School theories of antitrust ought to say about it.

Interesting and recommended.

Dey on Transitional Justice & Destruction of Cultural Heritage

Shuvra Dey (Friedrich-Alexander-Universität Erlangen-Nürnberg) has posted A Comprehensive Approach of Transitional Justice to Address the Deliberate Destruction of Cultural Heritage (Groningen Journal of International Law, Vol. 9, No. 2, 2022) on SSRN.  Here is the abstract:

Given the fact that cultural heritage has been the subject of multi-dimensional crimes during or in the aftermath of armed conflicts, this article attempts to analyze why and how such crimes can be brought under transitional justice (hereinafter TJ) mechanisms. It starts with the challenge to ascertain the inbuilt relationship, importantly, how cultural heritage enters into the domain of TJ. To this end, it fragmentises the rights of heritage and laws associated with these rights and examines how multiple discourses (i.e. human rights, humanitarian law, and criminal law) come together to form the notion of heritage rights and how their recognition contributes to cultural heritage’s entrance into TJ project. Thereafter, it assesses the resonance of potential TJ mechanisms and elucidates how they can help reveal the truth concerning crimes against heritage, bring the perpetrators to justice, rehabilitate the destructed sites, redress the victims, and prevent future attacks. It reiterates the value of four measures widely accepted in the TJ discourse, namely, truth-seeking, prosecution, reparations, and the measures of guarantees of non-recurrence. Finally, it explains why a comprehensive approach in terms of implementing these measures is essential and how such approach facilitates taking into account all the factors associated with the crimes against heritage.

Thierer on AI & Existential Risks

Adam D. Thierer (George Mason University - Mercatus Center) has posted Existential Risks & Global Governance Issues Around AI & Robotics on SSRN.  Here is the abstract:

A draft chapter from a forthcoming book tentatively titled, “A Flexible Governance Framework for Artificial Intelligence.”

Kendall on Australia’s Foreign Interference Laws & Press Freedom

Sarah Kendall (University of Queensland - T.C. Beirne School of Law) has posted How Australia’s Foreign Interference Laws Undermine Press Freedom ((2022) 47(2) Alternative Law Journal 124) on SSRN.  Here is the abstract:

This article considers the impact of Australia’s foreign interference laws on press freedom. It finds that the laws have the potential to criminalise legitimate, good faith journalism, without providing adequate protections for journalists and sources. It makes several recommendations for law reform so that national security is protected without unduly undermining freedom of the press.

Baude & Sachs on "Common Good Constitutonalism" by Vermeule

William Baude (University of Chicago - Law School) & Stephen E. Sachs (Harvard Law School) have posted The "Common-Good" Manifesto (Harvard Law Review, Forthcoming) on SSRN.  Here is the abstract:

In “Common Good Constitutionalism,” Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor.

Highly recommended.

Woolhandler on State Separation of Powers and the Federal Courts

Ann Woolhandler (University of Virginia School of Law) has posted State Separation of Powers and the Federal Courts on SSRN.  Here is the abstract:

The issue of state separation of powers generally is not one that the federal courts have had much occasion to address. Recent issues have arisen, however, with respect to states’ use of private parties to enforce state anti-abortion regulations such as Texas’s Senate Bill 8 (S. B. 8), and as to state legislatures’ claims of near-plenary powers over federal elections under the so-called independent state legislature doctrine (ISLD). See Moore v. Harper, cert. granted, Jun. 30, 2022 (No. 21-1271). In addition, revived interest in the nondelegation doctrine, as illustrated in West Virginia v. EPA, raises questions as to the earlier impact of that doctrine. While nondelegation scholarship often focuses on the rare use of the doctrine to strike down statutes conferring powers on federal agencies, the federal courts’ use of separation of powers as to state delegations illustrates the effect of the doctrine in aid of other constitutional rights. This paper provides an account of the federal courts’ treatment of state separation of powers in the past, and then addresses the relevance of this account to current debates about S. B. 8 and ISLD.

Highly recommended!

Richardson on the Florida Constitution & Abortion

Adam Richardson has posted The Originalist Case for Why the Florida Constitution's Right of Privacy Protects the Right to an Abortion on SSRN.  Here is the abstract:

Since the U.S. Supreme Court overruled Roe and Casey and returned the issue of abortion to the states, attention has shifted to state constitutions: Do state constitutions protect the right to an abortion? Florida is one of the few states whose constitution contains an explicit right of privacy. That provision, article I, section 23, was adopted by the voters in 1980. It states: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” Not a decade later, the Florida Supreme Court held that section 23 protected the right to an abortion, and the court reaffirmed that holding in the decades since. But the Florida legislature recently passed, and the governor signed, a surely unconstitutional law that largely bans abortions after fifteen weeks—setting up a challenge to the court’s abortion precedents. The state and prolife activists believe that those precedents are wrong. Invoking originalism, they say that the original meaning of section 23 was that it protected only the right to informational privacy—the right to control personal information—not the right to an abortion. The larger implication of their argument is that section 23 does not protect the right to decisional privacy, which is a person’s right to make certain kinds of important decisions.

Is that right? I seek to answer that question here by applying the principles of public meaning originalism, the dominant version of originalism. After explaining the basics of originalism, I engage in a careful, phrase-by-phrase analysis of section 23’s text. Then, I examine the history of section 23 at length, covering the general background, an earlier and unsuccessful attempt in 1978 to amend the Florida Constitution to add a privacy right, the successful proposal in 1980 that resulted in section 23, and post-approval history. Applying the principles of public meaning originalism to assess the historical evidence, my conclusion is that the original understanding of section 23 was that it would protect informational privacy and decisional privacy, including the right to an abortion.

G'sell on Robot Judges

Florence G'sell (Sciences Po School of Public Affairs) has posted AI Judges (Larry A. Dimatteo, Cristina Poncibo, Michal Cannarsa (edit.), The Cambridge Handbook of Artificial Intelligence, Global Perspectives on Law and Ethics, Cambridge University Press, 2022) on SSRN.  Here is the abstract:

The prospect of a “robot judge” raises many fantasies and concerns. Some argue that only humans are endowed with the modes of thought, intuition and empathy that would be necessary to analyze or judge a case. As early as 1976, Joseph Weizenbaum, creator of Eliza, one of the very first conversational agents, strongly asserted that important decisions should not be left to machines, which are sorely lacking in human qualities such as compassion and wisdom. On the other hand, it could be argued today that the courts would be wrong to deprive themselves of the possibilities opened up by artificial intelligence tools, whose capabilities are expected to improve greatly in the future. In reality, the question of the use of AI in the judicial system should probably be asked in a nuanced way, without considering the dystopian and highly unlikely scenario of the “robot judge” portrayed by Trevor Noah in a famous episode of The Daily Show. Rather, the question is how courts can benefit from increasingly sophisticated machines. To what extent can these tools help them render justice? What is their contribution in terms of decision support? Can we seriously consider delegating to a machine the entire power to make a judicial decision?

This chapter proceeds as follow. Section 23.2 is devoted to the use of AI tools by the courts. It is divided into three subsections. Section 23.2.1 deals with the use of risk assessment tools, which are widespread in the United States but highly regulated in Europe, particularly in France. Section 23.2.2 presents the possibilities opened by machine learning algorithms trained on databases composed of judicial decisions, which are able to anticipate court decisions or recommend solutions to judges. Section 23.2.3 considers the very unlikely eventuality of full automation of judicial decision making.

Legal Theory Lexicon: The Bad Man Thought Experiment

Introduction

In The Path of the Law, Supreme Court Justice Oliver Wendell Holmes, Jr., wrote,

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy.

Most law students encounter the bad-man thought experiment of the law at some point in their legal education.  And they may encounter a more formal and ambitious version theory--the so-called "prediction theory of law" that also makes an appearance in Holmes's The Path of the Law, including the following passage from the beginning of the essay:

We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

This entry in the Legal Theory Lexicon provides a basic introduction to the bad-man thought experiment and the prediction theory of law--and to some of the criticisms of Holmes's view.  As always, this is an elementary introduction, aimed at law students with an interest in legal theory.

I will use the phrase "bad man" rather than a gender neutral alternative such as "bad person," because this was Holmes's phrase and because it has been standard usage in legal theory.

The Bad Mad Thought Experiment

Most discussion of the bad-man thought experiment moves quickly to the predictive theory of the law, but the thought experiment is important even if the prediction theory is ultimately incorrect.  The basic idea of the thought experiment is simple: we are asked to take up the perspective of the bad men, who does not internalize legal norms but is instead concerned only with the effects that the legal system would have on themselves.  In the case of criminal prohibition, the bad man would be concerned with sanctions and punishments, but in other contexts, the bad man might see the law as providing benefits and rewards--for example, when the bad man could use tort, contract, or property law to obtain a damage award, a beneficial injunction, or title to and possession of a piece of property.

When we evaluate legal rules, we can take up the perspective of the bad man and ask the question how the bad man would view the rule and what effect the rule would have on the bad man's behavior.  An example of this use of the bad man thought experiment is provided in Justice Souter's opinion in Exxon Shipping Co. v. Baker:

Whatever may be the constitutional significance of the unpredictability of high punitive awards, this feature of happenstance is in tension with the function of the awards as punitive, just because of the implication of unfairness that an eccentrically high punitive verdict carries in a system whose commonly held notion of law rests on a sense of fairness in dealing with one another. Thus, a penalty should be reasonably predictable in its severity, so that even Justice Holmes's “bad man” can look ahead with some ability to know what the stakes are in choosing one course of action or another.

 

554 U.S. 471, 502 (2008).  

 

More generally, the bad man thought experiment goes to one of the most important distinctions in legal theory--the distinction between "the law on the books" and "the law in action."  The bad man does not care about the law on the books, except insofar as the law on the books influences the law in action in a way that affects the interests or preferences of the bad man.

 

The Prediction Theory of Law

 

Holmes deployed the bad man thought experiment in expressing general views about the nature of law.  There are important questions of exegesis as to whether the prediction theory that has been discussed by its critics was actually held by Holmes, but I am going to set those questions to the side and present a very simplified version of the prediction theory that is (rightly or wrongly) attributed to Holmes.

 

Holmes has been read as proposing a general theory that maintains the legal content (the content of the law) is a set of predictions about what courts and other legal institutions will do.  This account of the nature of law draws out the intuitions that Holmes lays out in The Path of the Law in the passages quoted above.  We might call this view of the nature of law "functionalist"--the true nature of law is reviewed by the way that the law functions (the law in action) and not by what the law says.  The law may say things that the law does not put into action, and these statements are not properly viewed as part of the true content of the law.  The prediction theory of law is that legal content consists of propositions that accurately predict the way the law will function.

 

The bad man thought experiment brings out an intuition that supports the prediction theory.  The bad man cares only about the functional content of the law and does not care about law on the books that does not translate into the law in action.  Why should the bad man care if the law says contracts must be performed, when the only sanction for breach is a damage award that would cost the bad man less than performance?  The law-on-the-books obligation to perform would not motivate the bad man unless it were backed up by a sanction sufficient to make performance in the bad man's self interest.

 

Criticisms of the Prediction Theory

 

One of the most influential criticisms of the prediction theory of the law in general and the bad man thought experiment in particular is associated with the great legal philosopher, H.L.A. Hart, whose concept of the internal point of view is described in a Lexicon entry.  The internal point of view plays an important role in Hart's own theory of law: officials, including judges, take up the internal point of view when they comply with rules, especially the rules that define their own powers and duties.  The internal point of view is obvious distinct from the self-interested perspective of Holmes's bad man.  Here is how Scott Shapiro describes Hart's point:

 

The problem with “bad man” theories such as Holmes's is that they assume that people are motivated to follow the law solely to avoid sanctions, rather than because rules require such behavior. These theories, Hart says, “define [the internal point of view] out of existence.”

 

More generally, the prediction theory, insofar as it relies on the bad man thought experiment, fails to take into account the "good person" who complies with the law because they believe that they are obligated to do so--even when there is no chance that they will be punished or sanctioned.

 

A related criticism of the prediction theory of the law is based on the failure of the theory to account for the phenomenology of judging.  Judges (at least sometimes) believe that their decisions are guided by the law.  In the case of a court of last resort, the prediction theory would seem to imply that judges must be making predictions about how they themselves will behave in the future, but this account seems circular, because their future selves would also be making predictions and at some point there must be something outside of these predictions that actually guides their behavior.

 

Although it is possible that the prediction theory could be fixed up to take these objections into account, I think it is safe to say that the theory has very few contemporary adherents--at least in the world of Anglophone legal philosophy.

 

Conclusion

 

Although the prediction theory of the nature of law is usually discounted, that does not mean that the bad man thought experiment should also be set to the side.  The thought experiment may be valuable as a tool for thinking about the law in action--even if it does not describe the behavior of all legal actors.  The aim of this Lexicon entry has been to provide a basic understanding of the bad man thought experiments and the way it can be used in both general legal theory and in thinking about particular legal problems. 

 

Related Lexicon Entries

• Legal Theory Lexicon 001: Ex Ante/Ex Post
• Legal Theory Lexicon 003: Hypotheticals
• Legal Theory Lexicon 013: Conduct Rules and Decision Rules
• Legal Theory Lexicon 038: The Internal Point of View
• Legal Theory Lexicon 065: The Nature of Law

Bibliography

• H.L.A. Hart, The Concept of Law 91 (2d ed. 1994).
• Oliver W. Holmes, The Path of the Law, 10 Harv. L.R. 457, 461 (1897).
• Marco Jimenez, Finding the Good in Holmes's Bad Man, 79 Fordham L. Rev. 2069 (2011).
• Roscoe Pound, Law in Books and Law in Action, 44 Am. U. L. Rev. 12, 18 (1910).
• Scott J. Shapiro, What Is the Internal Point of View?, 75 Fordham L. Rev. 1157 (2006).

(Last updated on August 13, 2022.)

Legal Theory Bookworm: "Elucidating Law" by Dickson

The Legal Theory Bookworm recommends Elucidating Law by Julie Dickson.  Here is a description:

What are the aims of legal philosophy? Which questions should it seek to address? How should legal philosophers approach and engage with their subject-matter, and what constraints are incumbent on them as they do so? What are the criteria of success of theories of law, and how do we know if they have been met? Can there be progress in legal philosophy?

In Elucidating Law, Julie Dickson addresses these and other questions concerning the methodology, or the philosophy, of legal philosophy and offers her own distinctive response to them. The book advocates that legal philosophers should espouse an approach that Dickson terms 'Indirectly Evaluative Legal Philosophy.' This distinctive approach can facilitate legal philosophers' understanding of aspects of the nature of law, whilst avoiding prematurely or inappropriately regarding law as inherently morally valuable. Law is a powerful, systemic, and institutionalized social tool. It should be understood in a manner appropriate to its character.

Download of the Week: "Making Sense of Evil Law" by Lukina

The Download of the Week is Making Sense of Evil Law by Anna Lukina.  Here is the abstract:

In this paper I introduce, define, and ultimately defend the term ‘evil law’. Firstly, I argue that ‘evil law’ is distinct from merely ‘bad’ or ‘unjust’ law and can be defined as law, which, if interpreted according to its best purpose, will enable intolerable harm (including atrocities). Secondly, I claim that ‘evil law’ is law despite objections from both its ‘external’ (Radbruch and Finnis) and ‘internal’ (Fuller) immorality. Instead of eschewing legality, evil regimes benefit from it in a number of ways. Thirdly, I answer Cole’s challenge that using the vocabulary of ‘evil law’ is at best reductive and at worst dangerous. Correctly defined, ‘evil law’ does not hinder but instead aids us in asking further questions such as why it is created and sustained. Even more so, proper use of the vocabulary of ‘evil’ helps articulate the horror evil law inflicts on those marginalized and corrupted by it.

Highly recommended.

Somin on the Vaccine Mandate Cases & the Major Questions Doctrine

Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) has posted A Major Question of Power: The Vaccinate Mandate Cases and the Limits of Executive Authority (Cato Supreme Court Review, Forthcoming (Symposium on the 2021-22 Supreme Court Term)) on SSRN.  Here is the abstract:

In January 2022, the Supreme Court decided two major cases reviewing the legality of sweeping Covid-19 vaccine mandates imposed by the Biden Administration. In National Federation of Independent Business v. Occupational Safety and Health Administration, a 6-3 ruling invalidated a regulation requiring employers with 100 or more workers to compel nearly all of them to get vaccinated against Covid or wear masks on the job and take regular Covid tests. In Biden v. Missouri, decided the same day, a 5-4 Court upheld a Centers for Medicare and Medicaid Services (CMS) policy requiring health care workers employed by institutions receiving federal Medicare and Medicaid funds to get vaccinated.

Both cases addressed large-scale policies that were significant in their own right. The two cases also have important implications for the scope of executive power to set regulations (NFIB) and impose conditions on federal grants to state and local governments (Biden v. Missouri). The majority was justified in striking down the OSHA employer mandate because Congress had never clearly authorized it, and also justified in upholding the CMS mandate because it was backed by far more unequivocal statutory authorization.

NFIB v. OSHA reaffirmed important constraints on the executive’s power to decide a “major question” of policy on its own, while also giving an indirect boost to constitutional nondelegation constraints on the transfer of legislative power to the White House and the administrative state. For its part, Biden v. Missouri makes clear that the executive can exercise reasonable discretion when Congress does clearly authorize it, particularly in the context of attaching conditions to federal grants to state and local governments.

Part I of this article provides a brief overview of the history of the two cases and the policies they address. It is particularly notable that both were sweeping emergency measures enacted in response to the Covid pandemic, and both reached the Supreme Court on a heavily expedited basis. I also summarize the Supreme Court’s rulings. Part II defends the outcome in NFIB v. OSHA, but also criticizes key elements of the Court’s reasoning.

Part III assesses Biden v. Missouri. In this case, the Court’s statutory reasoning is compelling. But the justices erred in failing to address some crucial issues related to Congress’s Spending Clause authority to set conditions on federal grants to state and local governments. Finally, part IV considers some broader implications of the two rulings. Americans across the political spectrum have much to gain from judicial enforcement of limits on executive power. The kind of sweeping unilateral authority the Biden administration claimed in NFIB could easily have been misused by future presidents of both parties. The Court’s sensible statutory interpretation in Biden v. Missouri also bodes well for the future.

Recommended.

Carpenter on Panicked Sex Legislation

Catherine L. Carpenter (Southwestern Law School) has posted Panicked Legislation on SSRN.  Here is the abstract:

We are in the throes of a moral panic. It is not the first time, nor will it likely be the last, but it is among the most enduring. Dubbed the sex panic, it has bred widespread and ever-escalating legislation, impacted the lives of more than a million people and their families, and caused public hysteria and violence. And unlike other moral panics in our history that dissipated over time, there are no signs that the sex panic is diminishing. Indeed, this panic grows more virulent with each passing year.

Panicked legislation is both the symbol and the result of a moral panic. The article is uniquely situated, linking both social science and legal theories to offer a dynamic account of the world of moral panics, the mythical narratives that support them, and the inaccurate risk management assessment that plagues them. It is ultimately a cautionary tale of hastily-crafted and fear-driven legislation that is fueled by the public’s distorted fear of a targeted group of people.

With a public unable or unwilling to hear the evidence, and political actors invested in their electorate, this article urges judicial intervention through the Irrebuttable Presumption Doctrine to challenge statutory schemes that are based on false assumptions that masquerade as universal truths.

Mendis on Wiki Authorship

Sunimal Mendis (Tilburg University) has posted Wiki (POCC) Authorship: The Case for An Inclusive Copyright (Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC) 13(3), Forthcoming) on SSRN.  Here is the abstract:

Public open collaborative creation (POCC) constitutes an innovative form of collaborative authorship that is emerging within the digital humanities. At present, the use of the POCC model (or Wiki authorship model) can be observed in many online creation projects the best known examples being Wikipedia and free-open source software (FOSS). This paper presents the POCC model as a new archetype of authorship that is founded on a creation ideology that is inclusive and as such, challenges the existing individualistic conception of authorship in exclusivity-based copyright law. Based on a comparative survey of the copyright law frameworks on collaborative authorship in France, the UK and the USA, the paper demonstrates the inability of the existing framework of exclusivity-based copyright law to give adequate legal expression to the relationships between co-authors engaged in collaborative creation within the POCC model. It proposes the introduction of an 'inclusive' copyright to the copyright law toolbox which would be more suited for giving legal expression to the qualities of inclusivity and dynamism that are inherent in these relationships.

Puaschunder on Behavioral International Law

Julia M. Puaschunder (Columbia University; New School for Social Research; Harvard University; The Situationist Project on Law and Mind Sciences) has posted Behavioral International Law: Law-In-Books vs. Law-In-Action Resembling the Neoclassical Economics Vs. Behavioral Economics Debate (Proceedings of the 28th Research Association for Interdisciplinary Studies (RAIS) conference, pp. 1-9, June 2022) on SSRN.  Here is the abstract:

International Law historically stems from a collection of international rules and principles to regulate international conduct of nation states towards another. The International Law Commission (ILC) is a gremium of international law experts voted by the United Nations in order to help develop the theory, codification and practice of international law and its wider range into legal diplomacy. The ILC discusses and debates emerging topics of relevance in international law in the pursuit of developing international legal principles and setting out global standards of nation state conduct towards another. A contemporary effort of the International Law Commission is the scientific investigation of the gap between law-in-books and law-in-action. Law-in-books describes all written-down laws, regulations and written legal customs. Contrary to legal writing in law, treaties, statues and cases, law-in-action is a legal theory that examines the role of law how it is actually applied and practiced in society. Law-in-action scholars often draw from observations about the actual behavior exhibited by executives in legal institutions, courts and jurisprudence officials. Law-in-action is also concerned with the effect of laws on actual people in the real world as well as the impact of legal frameworks and societal interpretations of the rule-of-law. The noticed gap between the law as written in books and the law in reality is currently subject to scrutiny by the current ILC in the quest to derive insights about successful environments to help improve efficiency in legal conduct, stability in international law making as well as combat societally-harmful discrepancies, e.g., such as corruption but also human decision making fallibility and preference reversals. In this fairly novel endeavor of the ILC, the wealth of insights derived from the behavioral economics revolution that undermined the neoclassical economic rational choice theory could be tapped into. International law scholars may derive inferences from the history, methods and applied behavioral insights how to close the gap between stylized aspirational efficiency goals and actual decision making and actions of real-world people. International law may also benefit from the newest critique of the macroeconomic efficiency maximization in the behavioral Post-Keynesian opening for the integration of political, societal, environmental and historical facets as influence factors on the success of macroeconomic measures. In all these endeavors, closing the gaps between scientific aspirational goals and legal models with real-world relevant applied law practice and policy outcomes promises to instigate optimality in scientifically-led ways how to legally rule the world but also to help research understand better what actual real-world actors do when being exposed to different legal choice architectures and policy frameworks.

Thomas & Diamantis on Corporate Criminal Law

W. Robert (Will) Thomas (University of Michigan Ross School of Business) & Mihailis Diamantis (University of Iowa - College of Law) have posted A Marketing Pitch for Corporate Criminal Law (1 Stetson Business Law Review __ (forthcoming)) on SSRN.  Here is the abstract:

Corporate criminal law needs a marketing makeover. In the public relations frenzy that follows a corporate criminal investigation, authorities are outgunned and outmaneuvered. Judging by the pastiche of '90s era design choices on the website the Department of Justice uses to announce corporate penalties, authorities are either unaware of the important of marketing or do not care. Prosecutors aren’t marketing professionals. Nor, for that matter, are most scholars writing about corporate misconduct.

Humdrum publicity dilutes corporate sanctions and dulls the edge of criminal justice. Criminal dispositions should single out truly contemptible practices from merely sharp, unproductive, or undesirable ones. In this way, criminal law gives victims the recognition they deserve and deters wrongdoers who would preserve their good name. Corporate punishment today falls far short of these communicative ambitions. It is a fleeting affair diluted by civil and administrative alternatives, PR spin, and a frenetic media environment. It can be hard even to identify after the fact who the corporate criminals are. Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal sanctions as mere costs of doing business. Public perceptions have largely followed suit.

For punishment to convey its intended message, society must hear it. Some marketing savvy could help. Yet legal scholars working to improve corporate criminal justice (let alone government functionaries enacting it) rarely seek the advice of colleagues in marketing departments. This paper lays the groundwork for dialogue about how to market corporate criminal law better and thereby make it more effective.

Conkle on Perry on Constitutional Rights, Human Rights, and Judicial Review

Daniel O. Conkle (Indiana University Maurer School of Law) has posted Human Rights, Constitutional Rights, and Judicial Review: Comparing and Assessing Michael Perry's Early and Contemporary Arguments (Emory Law Journal, Vol. 71, pp. 1365–96, 2022) on SSRN.  Here is the abstract:

In this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, Democracy, and Constitutionalism, Contemporary Perry advocates an originalist, but novel and nuanced, model of judicial review. Notably, he contends that there is a global political morality of human rights and that this global morality should influence the interpretation of American constitutional law. I am critical of Early Perry but find Contemporary Perry’s theory attractive, albeit with caveats.

I begin the Essay by identifying three criteria for evaluating competing models of judicial review in individual rights cases: (1) majoritarian self-government, (2) judicial objectivity and competence, and (3) functional justification. Using these criteria, I then assess Early and Contemporary Perry in turn. I conclude that Early Perry’s posited search for political-moral truth provided a compelling functional justification for his model of judicial review but that, conversely, the model faltered badly under my remaining criteria—majoritarian self-government and judicial competence and objectivity. Turning to Contemporary Perry, I find that the model of judicial review that he proposes, viewed in the abstract, would appear to serve a powerful function—bringing American constitutional law into closer alignment with the political morality of human rights—even while also accommodating majoritarian self-government and the need for judicial objectivity and competence, thus satisfying each of my three criteria to a substantial degree. Moving from an abstract account to a more fine-grained analysis, however, I go on to argue that Contemporary Perry’s model, as elaborated and applied, might not be as objective as it seems, a weakness that also tends to undermine the model’s compliance with the criterion of majoritarian self-government. Accordingly, my overall assessment of Contemporary Perry is positive but qualified.