Legal Theory Blog

Norton on Public Benefit in the Law of Charity

Jane Calderwood Norton (University of Auckland - Faculty of Law) has posted Weighing Benefits and Detriments in the Law of Charity on SSRN. Here is the abstract:

This chapter was published in Charity Law: Exploring the Concept of Public Benefit (Routledge 2022) edited by Daniel Halliday and Matthew Harding.

An essential requirement for charitable status is that the organisation or trust is for the public benefit. While the concept of public benefit can be hard to pin down, one way it has been determined is by weighing the potential benefits of the charitable purpose against any potential detriments. It argues that this balancing exercise, at least in the context of charities law, can be both flawed and misguided. It is often flawed because the decision-maker has no clear sense of the value/s they are trying to advance through this balancing exercise. It is often misguided because the values purportedly being balanced may be incapable of being compared or weighed against each other. The chapter starts by exploring the current approach to balancing that is adopted by decision-makers when determining public benefit. Here it observes that, unlike other areas of law such as bills of rights jurisprudence, the analysis undertaken by decision-makers is underdeveloped. This enables charity law to function without clearly identifying and extrapolating the values at play. While not identifying the underpinning values may have its advantages, it poses difficulties when the decision-maker is presented with purposes around which there are contested views. The second part of the chapter explains how the balancing exercise, as it is currently approached, often requires the decision-maker to conduct a balancing exercise without clarity around the values at play – making the exercise flawed – and often in circumstances where the values are incomparable or incommensurable values thus making the exercise misguided. The final part of this chapter explores how an express commitment to the value of autonomy might address some of the challenges that decision-makers face when weighing benefits against detriments, particularly when faced with controversial charitable purposes such as purposes that entail discrimination.

Hampson on Jubilee and Equal Opportunity

Christopher Hampson (University of Florida Levin College of Law) has posted The Spirit of Jubilee on SSRN. Here is the abstract:

The Jubilee texts of the Hebrew Bible call for debts to be forgiven and slaves freed every seven years and for farmland to be restored to families every fifty years. Tightly interwoven into the legal, narrative, and prophetic vision of the text, the Jubilee tradition stands as a crucial and authoritative vision of socioeconomic justice for multiple religious traditions. Yet the American legal system, which purports to draw on its religious heritage for inspiration and moral authority, has not fully drawn on the Jubilee tradition for a contemporary vision of equality and justice. This Essay seeks to spark a new conversation in a small corner of the room. I pull together the Jubilee tradition from various texts in the Hebrew Bible and argue that the Jubilee represents a distinct and fundamental narrative in the text. I conclude that a jubilee goes far beyond debt forgiveness alone: a jubilee is a generational redistribution of the private property most central to economic creativity, to ensure equitable opportunity for every community. I then show how the Jubilee texts have inspired and encouraged American socioeconomic justice movements from independence to abolitionism to forgiveness of debt. Finally, I argue that while the Jubilee ideal of forgiveness of debt and restoration of land cannot be implemented literally in modern economies, the spirit of Jubilee calls for broad, sweeping reforms to ensure equal opportunity in contemporary economic life — a Third American Reconstruction.

Chin & Finkelman on Birthright Citizenship

Gabriel "Jack" Chin (University of California, Davis - School of Law) & Paul Finkelman (Gratz College; Albany Law School) have posted Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation (UC Davis Law Review, Vol. 54, 2021) on SSRN. Here is the abstract:

In accord with the traditional restriction of citizenship of nonwhites, for decades some conservative lawmakers and scholars have urged Congress to deny citizenship to U.S.- born children of unauthorized migrants. For its part, the Trump Administration has promised to pursue birthright citizenship “reform.” The most prominent and compelling argument that Congress can deny citizenship by statute notwithstanding the citizenship clause of the Fourteenth Amendment comes from Citizenship Without Consent, a book authored by Yale Law Professor Peter Schuck and then-Yale Political Science Professor Rogers Smith. They argue that there was no federal exclusion or deportation in 1868 and thus the Fourteenth Amendment simply did not contemplate the citizenship of children of the then non-existent category of “illegal aliens.” Hundreds of law review articles, op-eds, white nationalist listservs, congressional hearings, and bills have embraced this argument, often citing Citizenship Without Consent.

This article is the first to examine the law regulating, suppressing, and banning the African slave trade to demonstrate, contrary to Citizenship Without Consent, that throughout the period leading up the Civil War and the adoption of the Fourteenth Amendment, the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population. Persons trafficked illegally could be and were deported, but, as Congress well knew, some were successfully smuggled in the country and remained here. Because the children of unauthorized migrants born in the United States were unquestionably made citizens by the Fourteenth Amendment, any modern statute denying citizenship to the children of undocumented migrants would be unconstitutional. In addition, scholars must consider the slave trade laws as part of the origins of federal immigration regulation.

An older paper, but of great interest given yesterday's executive order. Highly recommended.

Keener on Bonham's Case

Benjamin Keener (University of Pennsylvania Carey Law School) has posted Bonham's Case and Judicial Duty on SSRN. Here is the abstract:

Bonham’s Case is perhaps one of the most famous cases in the common law tradition. It is also one of the most poorly understood. Chief Justice Edward Coke appears to endorse a power of judges to invalidate acts of Parliament that violate reason, natural law, or some other higher law. This reading is wrong. Proving why, however, has challenged the academy for the past hundred years. This paper takes up that labor.

Part I summarizes the case, the opinion, and the surrounding literature. Part II surveys the early modern conventions of statutory interpretation, including competing theories of voidance and hermeneutics deployed in contract and property law. Part III reconstructs Coke’s drafting process by focusing on the neglected prefatory clause of the famous passage (“And it appeareth in our Books, that . . .”). By focusing on the start of the famous passage, we find that Coke likely drew from his own theory of repugnant acts in The Case of Alton Woods. Part IV compares the two cases, showing that Coke intended the famous passage to be narrowly understood as limited to specific impossibility scenarios. Often overlooked is the role of confirmatory acts of Parliament, acts which traditionally receive special interpretive treatment. Part V, finally, assesses Coke’s essential judicial commitments and harmonizes his views in Bonham’s Case with his broader theory of judicial duty. Judges are obliged to apply the law of England, which sometimes aligns and sometimes does not align with the law of nature.

Highly recommended. Download it while it's hot!

Pettit on Concepts of Free Speech

Philip N. Pettit (Princeton University; Australian National University (ANU) - Research School of Social Sciences (RSSS)) has posted Two Concepts of Free Speech on SSRN. Here is the abstract:

Free speech is sometimes conceptualized as unhindered speech, sometimes as protected speech. On the first view, the protection of the law is just one of many possible means for removing hindrances to speech; on the second it is essential. Free speech is better conceptualized in the second way, albeit the first has become more popular in jurisprudence and politics. In that second conception, you cannot enjoy free speech by the gift or tolerance or indifference of others: to enjoy it is to have the robustly entrenched rights of a free speaker. That ideal fits better with traditional assumptions and has more compelling credentials. Let the right to speak be legally protected and speakers gain a publicly marked status as persons with opinions of their own; silence becomes enfranchised, so that someone's saying nothing can say a lot; and people cannot easily duck responsibility for what they choose to say or not to say. To illustrate them with a case study, these are benefits that argue, in the context of a suitable culture, for the importance of academic freedom.

Highly recommended.

Mańko on an Ideological History of Private Law

Rafał Mańko (Central European University, Democracy Institute) has posted Towards an Ideological History of Private Law or What Legal History Can Gain from Critical Legal Theory on SSRN. Here is the abstract:

The aim of the present chapter is to enquire about the relationship between ideology and private law, with particular reference to the historical dimension of private law. From a methodological perspective, the present paper should be seen as a metamethodological intervention, grounded in critical legal theory, aimed at proposing certain broad research questions at the interstices of legal history and critical legal theory. The main argument advanced in the chapter is that the questions suggested by critical legal theory could be extremely relevant and topical for research on legal historians, and could help enlarge the scope of their enquiry beyond the traditional scope of research. Specifically, the chapter will put forward a certain typology of the ideological entanglements of private law (positing the categories of extra-juridical ideology, juridical ideology and legal ideology), and will argue that any analysis of the ideological dynamics of private law should ideally entail taking into account all three types of ideologies which interact with private law, focusing on all possible vectors of influence in a broad social, political and economic context.

Pang, Jiménez, & Bruckner on the New Student Loan Discharge Process in Bankruptcy

Belisa Pang (Yale University - Law School), Dalié Jiménez (University of California, Irvine School of Law; Harvard Law School - Center on the Legal Profession), & Matthew A. Bruckner (Howard University School of Law) have posted Full Discharge Ahead? An Empirical First Look at the New Student Loan Discharge Process in Bankruptcy on SSRN. Here is the abstract:

The legal framework for discharging student loan debt held bankruptcy filers cases changed in November 2022 with the Biden Administration’s Department of Justice issuing its “Guidance for Department Attorneys Regarding Student Loan Bankruptcy Litigation,” fundamentally altering the legal framework for discharging student loan debt in bankruptcy cases. The Guidance aims to enhance consistency and equity by (1) ensuring transparent and consistent expectations, (2) reducing the burden on debtors, and (3) making it easier for DOJ attorneys to recommend discharging a debtor’s student loans. The DOJ has touted the new Guidance as having “made a real difference in borrowers’ lives,” comprehensive analysis has been lacking.

This Article begins to assess whether the Guidance has achieved its objectives by analyzing student loan litigation in bankruptcy. Our findings reveal that, 23 months after the Guidance was announced, 2,514 new student loan adversary proceedings (SLAPs) were filed—a 330% increase compared to a similar period before the Guidance—with a third of these proceedings stemming from prior bankruptcies. Despite this significant increase, we find that this still means that fewer than 1% of bankruptcy filers with student loans seek to discharge them in bankruptcy. Notably, borrowers with smaller student loan debts become more likely to seek relief, indicating the Guidance may have lowered barriers for this group. Additionally, the increase in SLAP filings is regionally concentrated, suggesting that certain courts or consumer bankruptcy attorneys are “early adopters” of the new legal regime. Case processing times were initially slower but are returning to historical levels.

Our data suggests that while the Guidance has positively impacted the willingness of borrowers to seek the discharge of their student loans once in bankruptcy, overall use of this relief remains negligible relative to the total number of bankruptcy cases, indicating that additional efforts are needed to enhance access and awareness. Until Congress amends the Bankruptcy Code by removing Section 523(a)(8), the new Guidance serves as a beacon of hope for struggling borrowers seeking relief through bankruptcy.

Recommended!

Koh on "A Look Back at The Women's Hague Peace Conference" by Mégret

Steven Arrigg Koh (Boston University School of Law) has posted Law's Duality on SSRN. Here is the abstract:

Frédéric Mégret's engaging contribution, A Look Back at The Women's Hague Peace Conference: What Contribution To International Law Today?, exposes a legal duality. On one hand, the legalist perspective: law is a closed system. From this perspective, law is objective, hard, universal, and bounded. On the other hand, the sociocultural perspective: law is a human practice. From this perspective, law is subjective, organic, particular, and porous. This Essay reads Mégret's analysis of the 1915 International Congress of Women in The Hague as a "sociocultural challenge," disrupting the legalist perspective on international law, war, and peace during World War I. This Essay lauds this women's peace movement through this lens, and then argues that such sociocultural challenge must continue to be fostered within deeper theoretical sophistication in legal scholarship, legal education, and legal practice.

Post on the Judiciary Act of 1925 and Supreme Court Legitimacy

Robert Post (Yale University - Law School) has posted The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925 on SSRN. Here is the abstract:

This paper is written for a forthcoming symposium on the Judiciary Act of 1925 that will appear in the Notre Dame Law Review. Before the Judiciary Act of 1925, the Supreme Court functioned as an apex tribunal whose docket was dominated by trivial cases that it was forced to decide due to its expansive mandatory appellate jurisdiction. The Act substituted discretionary writs of certiorari for a large proportion of these mandatory appeals, thus allowing the Court to determine the nature of its own docket.

The point of the Act was to allow the Court to select cases that would clarify important questions of law and establish national priorities in constitutional and legal matters. Over time, these criteria for case selection have led both the public and the Court to imagine its proper role as supervising the development of federal law. The difficulty is that we lack any account of judicial authority that might justify the Court’s assumption of this essentially policymaking role.

The most basic source of judicial legitimacy derives from the dispute settlement function of courts. American courts may make law and policy, but they are justified in doing so only when it is necessary to decide concrete cases. This can be seen in how our legal system conceives the relationship between the dicta and the holding of a judicial opinion, and in how it differently treats judicial opinions and judicial judgments. This was also the basis of Marbury’s claim that federal courts were entitled to engage in judicial review. If the forward-looking lawmaking of a legislature is justified by its representative nature, the forward-looking lawmaking of a court is justified by the need to resolve disputes.

Over time, the Judiciary Act of 1925 has encouraged the Court to imagine that it can exercise a lawmaking authority that is virtually free-standing and independent of the retrospective need to settle disputes. The Court exercises this authority not only in self-consciously using certiorari to set the nation’s constitutional agenda, but in using its cases primarily as vehicles for the declaration of forward-looking law. This shift has produced a profound crisis of the Court’s legitimacy. A court that nakedly exercises its lawmaking authority is vulnerable to the charge that it can no longer settle disputes in a fair and impartial manner. It is stripped of its most basic claim to legitimacy.

It was during the era of the Warren Court when the Court first fully inhabited the policymaking role made possible by the Judiciary Act of 1925. At that time the Court imagined itself as the leader of American constitutional culture. Modern American constitutional theory developed as an effort to explain and justify the independent lawmaking authority of the Warren Court. But because judicial lawmaking, like any lawmaking, must ultimately be vindicated by popular acceptance, professional legal theory cannot insulate a court from popular opposition. The irony of our present situation is that although the Roberts Court has rejected the substantive doctrine of the Warren Court, it has nevertheless fully embraced the judicial role pioneered by the Warren Court.

Like its predecessor, the Roberts Court seeks to lead the constitutional culture of the country. This has put its legitimacy profoundly at risk, a danger that cannot be averted merely by the proliferation of constitutional theories. Instead the Court must find some way to make its constitutional views acceptable to the nation.

Highly recommended.

Pettit on the Dispersion of Power within the State

Philip N. Pettit (Princeton University; Australian National University (ANU) - Research School of Social Sciences (RSSS)) has posted Dispersing Power within the State on SSRN. Here is the abstract:

It is great honor to be even a virtual part of an event to celebrate the work of Leslie Zines, and especially to celebrate it in such august company. Leslie was a colleague that I greatly admired and liked. The disciplinary divide between us was not any bar to affection, though Leslie never let me forget that the constitutional-law terrain was sacred ground on which outsiders ventured at their peril. I particularly enjoyed the way that he, like our mutual, recently departed friend, Paul Finn, gently mocked the pretensions of a philosopher to declaim on topics jurisprudential. I fear I’m going to tread on his ground again in this little paper and I can only beg his, and Paul’s, posthumous indulgence.

My topic is the dispersion of power within the state. This ideal has a long history but has ceased to be much celebrated by those who endorse it and has come in for fierce attack among populist opponents. It’s not an exaggeration to say, in Yeats’s words, that on this subject ‘The best lack all conviction, while the worst Are full of passionate intensity’. In this short paper I would like to rehearse reasons why we should warmly endorse the dispersive ideal. And endorse it, regardless of how we dub it: whether, for example, we describe it in a mainly twentieth-century formula, as the separation of powers; in an eighteenth-century antecedent as a regime of checks and balances; in an earlier name that goes back to the Roman Republic as a mixed constitution; or in a term I myself favor as a polycentric arrangement or system.

Highly recommended.

Letsas on Structural Injustice and Law

George Letsas (University College London - Faculty of Laws) has posted   Structural Injustice and The Law: A Philosophical Framework on SSRN. Here is the abstract:

What is the role of law in injustices that philosophers call structural? Iris Marion Young argued that law is unable to capture the wrong of structural injustice because law is premised on a liability model of responsibility that focuses on individuals. Contrary to Young, I argue that law is the baseline against which we can make sense of moral claims regarding collective responsibility, including the wrong of structural injustice. Young's claim that law employs a liability model of responsibility is based on an unduly narrow picture of law. This is because law is ubiquitous in patterns of social interaction, by either protecting them as legally permissible or frustrating them as impermissible. The paper argues that any claim that someone is the victim of structural injustice necessarily implies both an interpretation and a critique of existing law. Political philosophers who are interested in matters of structural injustices should take law more seriously in their analysis.

Highly recommended.

Legal Theory Lexicon: Transparency

Introduction

Sooner or later, most law students encounter the idea that "transparency" (as opposed to "opaqueness") is (all else being equal) a desirable characteristic in markets, procedures, and governance institutions (both private and public). But what is "transparency" and why is it a good thing?  This entry in the Legal Theory Lexicon provides a very brief introduction to the concept of transparency for law students (especially first-year law students) with an interest in legal theory. The basic idea of transparency is simple: things go better when processes are open. Markets function best when transactions are public and terms are disclosed. Judicial processes work best when they are visible to the participants and the public. Governments work best when both inputs to decisions and the meetings in which decisions are made are public. This post provides a brief introduction to the idea of transparency in a few important contexts.

Transparency and Democratic Process

Why should the processes of democratic decisionmaking be transparent?  There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided.

The process that led to the formation of the Bush Administration's energy policy provided a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy.  And transparency may inhibit rather than facilitate the free flow of information--unpopular truths may be discussed behind closed doors but avoided in the sunshine.

The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box.  This deontological foundations of the values of transparency are likely to be rooted in theories of procedural justice and the role of democracy a conception of the political equality of citizens.

Transparency in the Market and the Boardroom

The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency may be especially important in capital markets.  Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders.

There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics.

Transparent Judicial Procedures

Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque.

Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions.

Connections with Normative Legal Theory

As should be clear by now, debates about transparency in law connect with larger debates in normative legal theory.  The case for transparency in a given context may rest on either utilitarian or deontological considerations.  And the case against transparency, likewise, might be grounded in a right to privacy or on the basis of benefits of secrecy.  As is frequently the case, some debates about transparency do not get very far, because the participants are operating on the basis inconsistent premises about the kinds of values that should guide legal choice.  One way to move past this kind of impasse might involve appeal to public reasons--reasons that draw on values that are accepted in the public political and legal culture that do not directly invoke comprehensive moral conceptions (like Bentham's utilitarianism or Kant's deontology).

Conclusion

Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why? There may be an answer to the question, but then again, there may not.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 009: Public Reason
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 023: Procedural Justice

Bibliography

• Mark Fenster, The Opacity of Transparency (March 15, 2005).
• Mark Fenster, The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State (January 9, 2012)
• Archon Fung, Mary Graham, & David Weil, Full Disclosure (Cambridge University Press 2009).
• Benjamin E. Hermalin and Michael S. Weisbach, Transparency and Corporate Governance (May 20, 2005).
• Elizabeth Garrett and Adrian Vermeule, Transparency in the Budget Process (September 3, 2006)

(This entry was last revised on

Introduction

Sooner or later, most law students encounter the idea that "transparency" (as opposed to "opaqueness") is (all else being equal) a desirable characteristic in markets, procedures, and governance institutions (both private and public). But what is "transparency" and why is it a good thing?  This entry in the Legal Theory Lexicon provides a very brief introduction to the concept of transparency for law students (especially first-year law students) with an interest in legal theory. The basic idea of transparency is simple: things go better when processes are open. Markets function best when transactions are public and terms are disclosed. Judicial processes work best when they are visible to the participants and the public. Governments work best when both inputs to decisions and the meetings in which decisions are made are public. This post provides a brief introduction to the idea of transparency in a few important contexts.

Transparency and Democratic Process

Why should the processes of democratic decisionmaking be transparent?  There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided.

The process that led to the formation of the Bush Administration's energy policy provided a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy.  And transparency may inhibit rather than facilitate the free flow of information--unpopular truths may be discussed behind closed doors but avoided in the sunshine.

The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box.  This deontological foundations of the values of transparency are likely to be rooted in theories of procedural justice and the role of democracy a conception of the political equality of citizens.

Transparency in the Market and the Boardroom

The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency may be especially important in capital markets.  Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders.

There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics.

Transparent Judicial Procedures

Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque.

Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions.

Connections with Normative Legal Theory

As should be clear by now, debates about transparency in law connect with larger debates in normative legal theory.  The case for transparency in a given context may rest on either utilitarian or deontological considerations.  And the case against transparency, likewise, might be grounded in a right to privacy or on the basis of benefits of secrecy.  As is frequently the case, some debates about transparency do not get very far, because the participants are operating on the basis inconsistent premises about the kinds of values that should guide legal choice.  One way to move past this kind of impasse might involve appeal to public reasons--reasons that draw on values that are accepted in the public political and legal culture that do not directly invoke comprehensive moral conceptions (like Bentham's utilitarianism or Kant's deontology).

Conclusion

Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why? There may be an answer to the question, but then again, there may not.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 009: Public Reason
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 023: Procedural Justice

Bibliography

• Mark Fenster, The Opacity of Transparency (March 15, 2005).
• Mark Fenster, The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State (January 9, 2012)
• Archon Fung, Mary Graham, & David Weil, Full Disclosure (Cambridge University Press 2009).
• Benjamin E. Hermalin and Michael S. Weisbach, Transparency and Corporate Governance (May 20, 2005).
• Elizabeth Garrett and Adrian Vermeule, Transparency in the Budget Process (September 3, 2006)

(This entry was last revised on January 19, 2025.)

Legal Theory Bookworm: "Judges, Judging, and Judgment" by Oldfather

The Legal Theory Bookworm recommends Judges, Judging, and Judgment by Chad Oldfather. Here is a description:

In Judges, Judging, and Judgment, Chad M. Oldfather offers an accessible, interdisciplinary account of the constraints and pressures on judges in our polarized world. Drawing on law, political science, psychology, and philosophy, Oldfather examines how these constraints have changed over time and the interpretive methodologies that have gained traction in response. The book emphasizes the inescapable need for judges to exercise judgment and highlights the value of selecting judges who possess good judgment and character. The book builds on prior work that emphasizes the importance of judicial character, specifically practical wisdom, and intellectual humility. The work underscores the need to foster a legal culture that values and rewards judges of character. Judges, Judging, and Judgment is a valuable resource for academics, students, lawyers, judges, and anyone else interested in the legal system's inner workings.

Download of the Week: "The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925" by Post

The Download of the Week is The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925 by Robert Post. Here is the abstract:

This paper is written for a forthcoming symposium on the Judiciary Act of 1925 that will appear in the Notre Dame Law Review. Before the Judiciary Act of 1925, the Supreme Court functioned as an apex tribunal whose docket was dominated by trivial cases that it was forced to decide due to its expansive mandatory appellate jurisdiction. The Act substituted discretionary writs of certiorari for a large proportion of these mandatory appeals, thus allowing the Court to determine the nature of its own docket.

The point of the Act was to allow the Court to select cases that would clarify important questions of law and establish national priorities in constitutional and legal matters. Over time, these criteria for case selection have led both the public and the Court to imagine its proper role as supervising the development of federal law. The difficulty is that we lack any account of judicial authority that might justify the Court’s assumption of this essentially policymaking role.

The most basic source of judicial legitimacy derives from the dispute settlement function of courts. American courts may make law and policy, but they are justified in doing so only when it is necessary to decide concrete cases. This can be seen in how our legal system conceives the relationship between the dicta and the holding of a judicial opinion, and in how it differently treats judicial opinions and judicial judgments. This was also the basis of Marbury’s claim that federal courts were entitled to engage in judicial review. If the forward-looking lawmaking of a legislature is justified by its representative nature, the forward-looking lawmaking of a court is justified by the need to resolve disputes.

Over time, the Judiciary Act of 1925 has encouraged the Court to imagine that it can exercise a lawmaking authority that is virtually free-standing and independent of the retrospective need to settle disputes. The Court exercises this authority not only in self-consciously using certiorari to set the nation’s constitutional agenda, but in using its cases primarily as vehicles for the declaration of forward-looking law. This shift has produced a profound crisis of the Court’s legitimacy. A court that nakedly exercises its lawmaking authority is vulnerable to the charge that it can no longer settle disputes in a fair and impartial manner. It is stripped of its most basic claim to legitimacy.

It was during the era of the Warren Court when the Court first fully inhabited the policymaking role made possible by the Judiciary Act of 1925. At that time the Court imagined itself as the leader of American constitutional culture. Modern American constitutional theory developed as an effort to explain and justify the independent lawmaking authority of the Warren Court. But because judicial lawmaking, like any lawmaking, must ultimately be vindicated by popular acceptance, professional legal theory cannot insulate a court from popular opposition. The irony of our present situation is that although the Roberts Court has rejected the substantive doctrine of the Warren Court, it has nevertheless fully embraced the judicial role pioneered by the Warren Court.

Like its predecessor, the Roberts Court seeks to lead the constitutional culture of the country. This has put its legitimacy profoundly at risk, a danger that cannot be averted merely by the proliferation of constitutional theories. Instead the Court must find some way to make its constitutional views acceptable to the nation.

Highly recommended.

Trueblood on Public Functions of UK Political Parties

Leah Trueblood (Worcester College) has posted Public Functions of Political Parties in the United Kingdom on SSRN. Here is the abstract:

Political parties are both private and public bodies. Some actions of political parties must be categorised as private to protect freedom of speech and association. This paper argues, however, that it is sometimes necessary that political parties are understood as exercising public functions as well. When parties are exercising public functions, their actions then may be subject to judicial review. Currently, political parties have not been held to exercise public functions in the United Kingdom either for purposes of the Human Rights Act 1998 or common law judicial review. This paper challenges the approach in UK law, particularly in Tortoise Media v Conservative Party which held that it was not even arguable that the selection of a by a political party was a public function. This article challenges this finding by offering a framework, drawn from current case law, for establishing when political parties are exercising public functions. The case law says that functions are public when bodies are 'operating as an integral part of a governmental framework.' These conditions were more than satisfied in Tortoise Media and offer a firm-albeit limited and context-contingent-basis for judicial review of actions by political parties.

Kostritsky on Contextual Understanding of Contracts and Innovation

Juliet P. Kostritsky (Case Western Reserve University School of Law) has posted Discriminating Alignment in the Innovation Sphere (University of Pennsylvania Business Law Journal (forthcoming)) on SSRN. Here is the abstract:

Contracts play an important role in innovation. As a result, some. scholars have proposed theories highlighting contract provisions as devices that can serve to informally enforce agreements and build trust between parties. Others emphasize the hierarchical provisions between firms to promote efficiency. Yet another group views these agreements as a mechanism to institutionalize learning and protect property interests. This Article offers a new theory. To understand a firm’s contractual choices and governance, we must look at how the same provisions in different contracts may have distinct meanings or operate differently in different contexts. So, scholars must give context to these contracts by evaluating how specific industries utilize these provisions in different ways. Separate industries may use the same provisions––like information sharing, for example––within their contracts, but they will pair these provisions with different clauses or private strategies, resulting in different governance choices. This Article looks at two areas––the manufacturing and biopharma industries­­––because these fields use collaborative agreements with similar provisions and suggests that the same provisions actually work in very different ways. The theory of discriminating alignment suggests that parties within these two industries use contractual and other strategy choices differently in order to meet their separate goals in a cost minimizing way. This Article reaches this conclusion based on qualitative interviews to learn about how participants in the biopharma industry use provisions and understand them. It draws on prior empirical work and scholarship to analyze how the same provisions operate differently within the manufacturing industry. It concludes that the same contract provisions operate differently in manufacturing and biopharma, leading to a divergence in governance choices. In manufacturing, where relational sanctions are possible, parties can combine informal enforcement with formal provisions to achieve their goals. This is consistent with a “braiding theory” of formal and informal enforcement. By contrast, biopharma parties have a joint interest in collaborating early on to achieve profits and success, which renders informal enforcement unhelpful. Biopharma uses formal provisions––including information transfer provisions––because they are the best means of facilitating a successful complex project. However, when the interests of parties within biopharma diverge, property provisions take over. This Article echoes Professor Macaulay’s view that to to understand governance within a specific industry, the industry must be analyzed using qualitative interviews.

Pettit on Republican Freedom

Philip N. Pettit (Princeton University; Australian National University (ANU) - Research School of Social Sciences (RSSS)) has posted Republican Freedom in Choice, Person and Society on SSRN. Here is the abstract:

By a characteristically republican account, a person is free in the exercise of a choice to the extent that no one else has the power, even the unexercised power, of interfering in that choice. The account makes good analytical sense, as rival accounts may also do, but its appeal primarily consists in its rich implications for the freedom of persons and the society as a whole. If people are to be equally free in this sense—if they are to enjoy equal freedom as non-domination—then the law must identify the basic liberties or choices of each and provide each with security against the domination of others in the exercise of those choices; by a traditional metric, it must enable citizens to be free persons, able to look one another in the eye without reason for fear of deference. But if they and their society are to count as free, republican freedom must also guard citizens against domination by those who make and impose law. Those in power must be constrained to make public decisions under a system of electoral and other controls that are sustained or applied by ordinary citizens, rather than enjoying discretionary or arbitrary power; intuitively, they must rule on the people’s terms.

Highly recommended.

Diamond on Originalism and Lawfinding

Alma Diamond (University of Michigan Law School) has posted Hares or Hounds? Originalism's Dilemma: Legal Formalism, or Judicial Neutrality on SSRN. Here is the abstract:

The increased influence of originalism on the Supreme Court has brought radical changes to constitutional law in recent years. Many have criticized these changes as morally unsound and politically unjust. The majority on the Court and their supporters don't usually respond by defending the moral and political merit of the changes. Instead, their defense is often that moral and political considerations are beside the point: judges are only empowered to decide cases on legal, rather than moral or political, grounds. Judges find and apply the law, they don't make it. What looks like radical change is actually the Court's scrupulous application of the law, not its political or moral judgment about what the law ought to be. The Court is a politically neutral law-finder, it is not a lawmaker.

But are originalists entitled to this response? I contend they are not. It is possible for lawfinding to be politically neutral: judges find law in a politically neutral way when we can come to see the correctness of their results independently of our political convictions. But this requires consensus about criteria of legal correctness. Where consensus breaks down, we have no such criteria. In many of the controversial cases before the Court, there are no shared criteria. Judges are required to decide controversial cases anyway. It is possible to understand what they do in these cases as lawfinding: they are identifying the best available legal justification for an outcome. But distinguishing between better and worse justifications is not politically neutral.

This means there are two incompatible ways of understanding lawfinding. Either we find the law by reasoning about shared criteria of correctness. That would vindicate the idea that lawfinding is politically neutral, but it entails that the Court is doing something other than lawfinding when we disagree those criteria. Or we find the law by discerning the best available legal justification. That would vindicate the idea that there is always law to be found in the cases before the Court, even when they are controversial. But because this does not require consensus on criteria of correctness, lawfinding is no longer politically neutral.

The originalist response helps itself to both of these understandings, thereby making two incompatible claims: that judges only find law, and lawfinding is always politically neutral. When the Supreme Court offers this originalist response, it is both running with the hares and hunting with the hounds. This is on display in Loper Bright, for example, where the Court emphasized the neutrality of judicial reasoning even while insisting that there is always a legal answer at hand, no matter how "impenetrable." Some strands of originalist theory have also been eliding this dilemma, insisting both that judges are engaged in politically neutral reasoning, and that there is always (originalist) law to be found. This is a mistake.

The mistake lies in slipping between two incompatible theories of lawfinding. On a "criterial" theory of lawfinding, knowledge of the law depends on shared criteria for the correctness of legal judgments. A criterial theory of lawfinding enables us to understand lawfinding as politically neutral. But it entails that the law runs out in controversial cases: that the Court is doing something other than lawfinding in cases like Loper Bright or Dobbs. On a "coherentist" theory of lawfinding, knowledge of the law depends on sound justifications for legal content. A coherentist theory of lawfinding enables us to argue that there is always law to be found, even in controversial cases. But it entails that lawfinding requires evaluating legal justifications, which in turn requires political judgment about how the law is best justified. The originalist response helps itself to one understanding of lawfinding to claim political neutrality, and to another to claim that there is always law to be found in the cases before the court. This is inconsistent.

The distinction between criterial and coherentist theories of lawfinding is not between positivism and antipositivism: it cuts across that divide. For this reason, it has been ignored in our legal and constitutional theory. I bring it to light, and in doing so expose a dilemma facing the Court and originalism. Either the Court is only finding law, or lawfinding is politically neutral. Both of these claims can't be true. In exposing this dilemma, I also point a way forward for a more productive public debate about the legitimacy of judicial power.

Highly recommended!

Call for Papers: Firearms Law Works-in-Progress Conference 2025

Here is the link to the details: https://firearmsresearchcenter.org/forum/of-interest-to-scholars-firearms-law-works-in-progress-conference-2025/

Highsmith on Local Government Law and Company-Dominated Enclaves

Brian Highsmith (Harvard University - Harvard Law School; Harvard University, Department of Government ; Arthur Liman Center for Public Interest Law) has posted Governing the Company Town (77 Stan. L. Rev. (forthcoming 2025)) on SSRN. Here is the abstract:

This Article explores the forms of public and private governance that facilitate localized corporate domination. Researchers have documented the oppressive employment relationship that characterized historical “company towns,” but few accounts yet have examined these communities as local governments. I use archival research to identify institutional continuities between corporate fiefdoms like George Pullman’s model town outside Chicago (1880-1898) and Disney’s self-governed district near Orlando (1967-2023). I demonstrate that local government law has contributed to the recent reemergence of company-dominated enclaves, namely by deferring to private governance and facilitating jurisdictional fragmentation.

During the Gilded Age and Progressive Era, proprietors of company-owned towns exercised absolute control over workers through the private law of property and contract. Mining bosses and industrial barons like Pullman intentionally rejected the municipal form, using dismissal and eviction to enforce company policy as the operative governing authority within their dominions. This strategy became less effective after the New Deal, leading observers to pronounce the demise of the company town. But I argue that parallel developments in local government law have allowed the company town’s continuation through new institutional forms, enabling corporate titans to wield public powers without accountability to any broad public. Rather than facilitating domination over captive worker-residents, these institutional forms are used primarily to externalize costs and escape democratic obligations like taxation—goals that also deeply shaped the governance of historical company towns. I review this playbook through several recent case studies, demonstrating how territorial and functional fragmentation have facilitated the proliferation of corporate enclaves—allowing spatially-concentrated private capital to secede from local democratic control.

I suggest that the company town can be understood as a democratic phenomenon: a distinctive form of private tyranny. Since the Founding, theorists have acknowledged the vulnerability of small and non-diverse jurisdictions to tyrannical rule-by-faction. By contextualizing new examples like Elon Musk’s efforts to incorporate his model towns in Texas, I show that this fear is realized where corporate interests either commandeer our formal institutions of governance or displace their typical role in structuring public life.

Highly recommended.

Mańko on Legal Transplants, Survivals, and Revivals

Rafał Mańko (Central European University, Democracy Institute) has posted Legal Transplants, Legal Survivals and Legal Revivals: Towards a Reconceptualisation of the Circulation of Legal Forms in Time and Space (Acta Universitatis Lodziensis. Folia Iuridica, 2024[10.18778/0208-6069.109.06]) on SSRN. Here is the abstract:

When Alan Watson introduced, back in the 1970s, the concept of a legal transplant, also known as a legal transfer, he revolutionised comparative law and comparative legal history by showing that most of legal development takes place through borrowing. However, his notion of a legal transplant conflates two quite different realities: on the one hand, the borrowing of legal forms from other, simultaneously existing legal systems (such as the transplant of the Swiss Civil Code to Atatürk's Turkey) and, on the other hand, the rediscovery of old legal forms and their "borrowing" from long defunct legal systems (such as the rediscovery of Justinian's Corpus Iuris Civilis by medieval lawyers in Western Europe, and the infusion of Roman ideas about contract law into existing customary rules). Although there are certain formal similarities between the two phenomena, this article will argue that they should not be conflated, especially given the sharp socio-legal difference between borrowing from a living legal system (with a functioning judiciary and legal academia) and the cultural appropriation of historical legal material for contemporary legal purposes. In this vein, the present paper-drawing on Theo Mayer-Maly's concept of "return of juridical figures" and Tomasz Giaro's concept of a legal "resurrection" or "borrowing from the past"-proposes to introduce a new notion of "legal revivals" and carefully delimits them from legal transplants, on the one hand, and legal survivals, on the other. One of the characteristic features of legal revivals is the use of the resources of legal history for the purposes of contemporary legal innovation.

Highly recommended.

Munir on Sociological Jurisprudence

Amr Ibn Munir (International Islamic University, Islamabad) has posted The Fundamental Precepts of Sociological Jurisprudence: An Introduction (Journal of Law & Social Studies (JLSS) Volume 6, Issue 4, pp 388-394) on SSRN. Here is the abstract:

Sociological jurisprudence refers to the study of law in relation to the problems of society. It came about as a result of certain European jurists deliberating upon law alongside other social sciences. This same jurisprudence would be exported to America under the moniker of legal realism, which is a study of the law as a means of its practical impact in society as a whole. This new jurisprudence came into being by Oliver Wendell Holmes Jr. and was further deliberated upon by the likes of Roscoe Pound and Karl Llewellyn. However, in the latter half of the 20th century, sociological jurisprudence was a study of critique by numerous scholars and jurists and was thus overshadowed as a result of the emergence of newer jurists such as H.L.A Hart, Denning, Ronald Dworkin amongst others. This era also saw the reemergence of the classical debate between positivism and naturalism on a new lens as well. In the current era, it is hard to say whether sociological jurisprudence shall ever make a comeback. However, it is still entirely possible that some new proponent comes along and brings it back to mainstream jurisprudence in new lines. The methodology used in this paper is doctrinal.

Bhatnagar on Political Influence on Indian Police Services

Dr. Shreshth Bhatnagar (St Joseph's College of Law Bengaluru) has posted Critical Analysis of Political Influence's on Decision making process in All India Services special reference to Indian Police Services (International Journal of Research and Analytical Reviews ISSN 2348-1269) on SSRN. Here is the abstract:

All India Services (AIS), which are shared by the Union and the States, are to be established in accordance with the Constitution. According to the All-India Services Act of 1951, the Central Government may establish regulations governing the hiring process and the working conditions of those recruited to the All India Services. The only All India Services now in existence are the IAS, IPS, and IFS. The appropriate AIS Recruitment Rules govern the recruitment process for these services, which may involve both direct recruitment (via competitive examinations) and promotion from the state service. The latter manner of recruiting, which is covered by the relevant IAS/IPS/IFS Promotion Regulations, is the focus of the AIS Branch. In this research paper researcher has discussed about how political interventions are there in decision making process of members of All India Services and what are the possible root cause for the corruption in India's premier post of All India Services, how members of civil services has to cope up with this for further stay in post with peace. The researcher has tried all possible way to find out reason with some triggered issues of political interventions in AIS and IPS, some leading Hon'ble supreme court and High Court judgements, views of Administrative Reform Commission and various other commission. and tried to give some suggestion in the end.

Fletcher on "Custer Died For Your Sin" by Deloria

Matthew L. M. Fletcher (University of Michigan Law School) has posted Nanaboozhoo Died for Your Sins on SSRN. Here is the abstract:

This paper is a review of the classic book by Vine Deloria, Jr., “Custer Died For Your Sins,” for the 2025 volume of the Michigan Law Review’s book review issue.

Nanaboozhoo, the Anishinaabe trickster god, decides to attend law school after reading “Custer Died For Your Sins” and realizing that the author, Vine Deloria, Jr. also decided to law school after publishing the book. This review follows Nanaboozhoo as he progresses through a legal career guided by the book.

Emeziem on Soft International Economic Law

Cosmas Emeziem (Boston College Law School) has posted Soft International Economic Law: A New Sovereign? on SSRN. Here is the abstract:

This Article has two broad and intersecting goals. First, it argues that soft laws influence formal International Economic Law structures and have vital implications for commercial treaties, global financial regulation policies, investment agreements, and dispute settlement institutions. Second, the more ambitious goal shows that despite the broad influence of "soft Law" in International Economic Law, there is a lack of cohesive theory on "soft laws" and their systemic weight within the discipline. The general claim in support of soft law is functional, especially in situations where states and other international lawmakers cannot agree on treaties/hard laws. Thus, through a comparative, normative, and analytical review, I examine these concerns and how "soft law" is a contemporary iteration of the substantial influence that seemingly benign taxonomies exert in International Economic Law.

Recommended.

Cavedon on State Criminal Extraterritoriality and the Constitution

Matthew Cavedon (Emory University - Center for the Study of Law and Religion) has posted Constitutional Federalism’s Limits on State Criminal Extraterritoriality on SSRN. Here is the abstract:

This article explores limits on state criminal extraterritoriality arising from constitutional federalism. This issue has recently taken on new significance due to interstate prosecutions concerning abortion, cybercrime, and election interference. However, previous scholarship has not comprehensively surveyed historical territoriality requirements.

Based on research into English common law and early American jurisprudence, this article concludes that states cannot ordinarily prosecute actions committed beyond their borders. However, they can prosecute continuing and distinct crimes, extraterritorial crimes against special state interests, and crimes committed outside of any American state. These rules are implicit in constitutional federalism. U.S. Supreme Court precedent, scholarship about the constitutional role of “general law,” and theories of constitutional liquidation all support this theory.

Lastly, this article addresses current controversies, including state efforts following the Dobbs decision to criminalize out-of-state abortions, cybercrime, and election interference. It closes by considering tradeoffs. Territoriality fosters American pluralism but does so by requiring strong moral consensus before many criminal laws can be implemented effectively.

Tillman on the Electoral Count Act

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Misconstruing the Electoral Count Act: A Response to Evan A. Davis and David M. Schulte on SSRN. Here is the abstract:

The core of Evan Davis and David Schulte’s position is that president-elect Trump is barred by Section 3 of the Fourteenth Amendment from becoming President.—Or, to put it more plainly, in spite of the Supreme Court’s decision in Trump v. Anderson, Congress is free to ignore that decision and to determine that Trump was and remains disqualified. In those circumstances, the vote of presidential electors cast for Trump was a nullity. Given that the only remaining and otherwise valid votes cast by presidential electors were cast for Vice President Kamala Harris, it is Harris who prevailed in the election and she should be seated under the rules of the Electoral Count Act.

Davis and Schulte explain:

A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words “not regularly given” [in the Electoral Count Act]. Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years’ residency in the United States.

To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.

Simply put, Davis and Schulte’s analysis is not correct.

Lee on Prison Abolitionism

Youngjae Lee (Fordham University School of Law) has posted Is Prison Abolitionism Self-Defeating? (Criminal Law and Philosophy, 0[10.1007/s11572-024-09743-6]) on SSRN. Here is the abstract:

This Essay argues that prison abolitionism is self-defeating in three ways. First, putting pressure on the basic criminal justice model and seeking to eliminate it may increase the impetus to resort to alternative modes of preventing harm that focus on prediction and prevention, as opposed to a system of notice followed by punitive consequences in response to conduct in willful violation of rules. As a result, we may end up fueling a system that is even more liberty-restricting than a system that is premised on the idea of choice and consequences. Second, operating the kind of vast network of robust social services that abolitionists typically favor as an alternative to prisons requires rules administered through institutions and personnel, and enforcing the rules and protecting the administrative apparatus from abuse, fraud, and sabotage may require threats of unpleasant consequences, including imprisonment. By committing to a future without prisons, abolitionists may be making unavailable an important tool that can help bring about the world in which important primary goods are provided by the public sector. Third, prison abolitionism’s tendency to deemphasize individual responsibility and describe undesirable behavior as a byproduct of impoverished social conditions brought about at least in part by injustice may bring us closer to a world in which the picture of humans as autonomous beings deserving of dignity is replaced with the picture of humans as potential carriers of risk who need to be shaped, managed, treated, and even institutionalized in advance if necessary.

Recommended.

Afnan on Police Abolitionism

Alexander Afnan (Georgetown University Law Centre - Georgetown University Law Centre) has posted An Abolitionist Vision: Reclaiming Public Safety from a Culture of Violence on SSRN. Here is the abstract:

This article highlights that the endemic of police violence is a manifestation of a greater societal culture upheld by a hegemony that legitimizes police violence. Various institutions in civil society lead us to believe that crime is rampant, that people of color are dangerous, and that police are necessary to preserve the safety of our communities. This hegemony is further cemented through the jurisprudence of the Supreme Court. This article proposes that reformist measures cannot yield fruit so long as this hegemony exists. Consequently, reforming police training and introducing new policies will only find success if placed within the context of creating a culture that is the very antithesis of the culture of violence — one that is instead centered around community wellbeing. This article argues that the first step to attaining meaningful and organic cultural change is to develop a consensus on the principles that will lie at the heart of this cultural change. Without this consensus, change will be haphazard and short- lived, which ultimately suits the status quo of violence. As a result, this article offers three principles that fundamentally undermine the underlying logic of the culture of violence: the oneness of humankind, the inherent dignity and moral capacity of each individual, and the conception of justice as restorative, reparative, and redistributive.

Baharadn & Parchomovsky on a Fair-Price Justification for the Fair Use Doctrine

Roy Baharad (Hebrew University of Jerusalem - Hebrew University) & Gideon Parchomovsky (Hebrew University of Jerusalem - Faculty of Law; University of Pennsylvania Carey Law School) have posted Fair Use and Fair Price (Southern California Law Review, forthcoming) on SSRN. Here is the abstract:

In this Article, we present and develop a new justification for the fair use doctrine. The accepted lore among copyright law scholars is that fair use is a means for overcoming a market failure in the form of high transaction costs. According to this view, the doctrine sanctions unauthorized use of copyrighted works in cases where transaction costs hinder voluntary, mutually beneficial exchanges.

Departing from conventional wisdom, we argue that the fair use doctrine serves as an important empowerment even in fully functional markets. Fair use enables users to secure more favorable licensing terms from copyright owners by endowing users with a threat point in their negotiations. Without fair use, users would have to pay the price demanded by copyright owners or not use the work. With fair use, many users can credibly assert that their intended use of copyrighted content is privileged by the fair use doctrine and thus they can use the desired content without authorization. The fair use doctrine, therefore, gives users leverage in their negotiations with copyright owners.

We illustrate our thesis by applying it to the landmark fair use decisions of the Supreme Court, including the recent ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, that determined the bargaining standpoint of users for decades to come. We demonstrate the distributive effects of the Supreme Court’s fair use jurisprudence and explain how the Court must act to preserve and augment the empowering effect of fair use. The theory presented in this Article proves that the reach of fair use goes well beyond market failures and that the impact of the doctrine is much more significant than previously thought.

Recommended.

Barnett & Solum on Originalism and the Party Presentation Principle

Lawrence B. Solum (University of Virginia School of Law) & Randy E. Barnett (Georgetown University Law Center) have posted Originalism and the Party Presentation Principle on SSRN. Here is the abstract:

The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.

For originalists, the importance of party presentation is clear in cases where the parties fail to present originalist arguments and the Supreme Court therefore decides the case on the basis of precedent, historical practice, and tradition, or constitutional values—factors that living constitutionalism substitutes for original meaning. With original meaning banished, the result can be a decision with an outcome, holding, and reasoning that is inconsistent with the original meaning of the constitutional text. And lower courts may view the Court’s nonoriginalist decision as foreclosing any further consideration of originalist arguments, not only on the narrow issue actually decided by the Court, but on adjacent issues to which the Court’s reasoning is relevant.

In Part I, we briefly discuss originalism and its rivals. In Part II, we summarize existing party presentation doctrine and explore the many unresolved questions about the shape of the principle. Next, in Part III, we consider the interaction between party presentation and precedent. In Part IV, we articulate an originalist approach to party presentation, including what we see as the first best approach to party presentation—the originalist version of the principle is minimalist—and an originalist approach to precedent shaped by the principle. Finally, in Part V, we apply the framework that we develop to the party presentation in the Supreme Court, the lower federal courts, and state supreme courts—and for appellate advocates, especially repeat players among the Supreme Court bar. There is, of course, a conclusion.

Comments welcome: [email protected].

Guerra-Pujol on Adam Smith's Maxims of Taxation and Optimal Tax Theory

F. E. Guerra-Pujol (Pontifical Catholic University of Puerto Rico; University of Central Florida) has posted Adam Smith's Blind Spot on SSRN. Here is the abstract:

This article connects Adam Smith's maxims of taxations-as well as a possible precursor to Smith's maxims: Roussel de la Tour's Richesses de l'etat-with Geoffrey Brennan and James Buchanan's critique of optimal taxation theory. Among other things, Brennan and Buchanan's critique of the optimality criterion fills an important gap not only in the optimal-tax literature but also in Adam Smith's thought.

Riis on Content Moderation by Internet Intermediaries

Thomas Riis (University of Copenhagen - Faculty of Law) has posted A model of 'rough justice' for internet intermediaries from the perspective of EU copyright law on SSRN. Her eis the abstract:

Internet intermediaries' content moderation raises two major problems. The first relates to the accuracy of the moderation practices, which is an issue on whether the intermediaries over-enforce or under-enforce. The second problem concerns the inherent privatization of justice that results when enforcement of rights is left to a private party. The purpose of the article is to develop a model of 'rough justice' for internet intermediaries' content moderation practices taking into account the obvious fact that such content moderation cannot comply with the degree of justice known from civil procedural law. There is no reason to believe that internet intermediaries strive to achieve the highest level of justice in their content moderation. As a consequence, the model of rough justice presupposes legislative intervention related to 3 different groups of provisions: 1) Procedural rules, 2) substantive rules, and 3) competences of persons involved in content moderation.

Duke on Constituent Power and Aristotle

George Duke (Deakin University - School of Humanities and Social Sciences) has posted The Aristotelian Legislator and Constituent Power (Chapter for The Oxford Handbook of Constituent Power (forthcoming)) on SSRN. Here is the abstract:

The application of the concept of constituent power to Aristotle is undoubtedly at risk of anachronism. It nonetheless remains instructive, this chapter argues, to consider the application of constituent power to Aristotle’s political and legal thought. Two main arguments are offered for this contention. First, Aristotle’s reflections on the founding legislator and architectonic legislative “science” anticipate in illuminating ways the later development of the distinction between constituent and constituted power. Second, a contrast between Aristotelian foundational law-making and the modern idea of constituent power provides a critical lens on the conceptual and normative presuppositions of the latter.

Recommended.

Steene on RFRA and Standing

Adam Steene has posted Can the Religious Freedom Restoration Act Survive TransUnion's Test for Article III Standing? on SSRN. Here is the abstract:

Hardly a term goes by, it seems, without the Supreme Court revisiting standing doctrine—sometimes making minor modifications and clarifications, but other times charting a new path entirely. The danger with the latter approach is that, even when guided by originalist principles, the Court might not fully appreciate where the path leads. One such chart-pathing case is TransUnion LLC v. Ramirez, where the Court held that Article III prohibited certain plaintiffs from recovering statutory damages for defendants’ violation of the Fair Credit Reporting Act. According to the Court, plaintiffs had failed to satisfy Article III’s “concrete injury” requirement because they had not “identified a close historical or common-law analogue for their asserted injury.”

In this short piece, I examine one perhaps-unanticipated consequence of the Court’s holding in TransUnion. Specifically, I attempt—and fail—to find a close historical or common-law analogue for the injury recognized in the Religious Freedom Restoration Act, a law that prohibits the federal government from infringing an individual’s free religious exercise. I begin by discussing how litigation worked at the time of the Founding. I briefly summarize TransUnion’s approach to Article III. I then apply that approach to harms based on infringement of free exercise. And I address potential responses to my conclusion that this kind of harm would not satisfy TransUnion’s approach to the concrete-injury test.

Born on International Law and American Courts

Gary B. Born has posted International Law in American Courts on SSRN. Here is the abstract:

This Book addresses the status of international law in American courts and the power of those courts directly to apply rules of international law. It concludes that the current treatment of international law by U.S. courts, as it has developed over the past several decades, is gravely flawed. That treatment is contrary to the Constitution’s text, history and objectives, inconsistent with the treatment of international law by American courts for the 200 years following ratification, and inimical to the United States’ contemporary national interests. The Book also concludes that there are readily available means for remedying these defects, by returning to the treatment of international law that was intended by the Framers, either through straightforward textual interpretation of the Constitution or through formulation of equally straightforward contemporary rules of federal common law.

More specifically, the Book concludes that, contrary to much recent authority, all rules of international law – known to the Framers as the “law of nations” – have the status of part of the “Laws of the United States.” This body of federal law encompasses all international law rules, including rules of public international law, which define the rights and duties of nations, and rules of private international law, which define the extent of U.S. judicial and legislative jurisdiction over foreign parties and conduct, and the effects of foreign laws, judgments and judicial proceedings in U.S. courts; this body of federal law does not include other rules of law, including contract, tort, agency, property and the like, and is instead limited only to matters of international law.

The Book also concludes that, notwithstanding their status as federal law, particular rules of international law may only be applied by U.S. courts if the federal political branches have authorized direct judicial application, making them “self-executing.” This approach treats all international legal obligations of the United States – treaties, international agreements and customary international law – in the same manner: although all rules of international law which are binding on the United States are presumptively applicable in American courts, as part of the law of the land, some such rules are addressed to the political branches, not the judiciary, for application. Under this analysis, most treaties and most rules of private international law would be directly applicable in U.S. courts, regardless whether they had been implemented by congressional statute, while some, but not all, customary rules of public international law would have self-executing status.

The Book’s analysis accords rules of international law the same status as that which was intended by the Framers – as part of the Laws of the United States under Articles III and VI of the Constitution – and which prevailed for much of the Nation’s history. That analysis also seeks to ensure that the Framers’ objectives of advancing the interests of the United States and its citizens, rather than those of individual states, in matters of foreign relations and international law will be achieved. In so doing, the Book’s analysis also advances the United States’ contemporary interests – in contrast to the current treatment of international law by American courts, which does the opposite.

This monograph is massive! This goes beyond the kind of paper I can read before posting, but a quick scan reveals that it appears well document. When I searched for some key pieces of scholarship, they appeared. So, if this is your field, I think that it is worth taking a look and making your own assessment.

Bullock on a Global AI Agency

Justin Bullock (Texas A&M University) has posted A Global AGI Agency Proposal on SSRN. Here is the abstract:

In this report, I argue that there are significant plausible benefits to creating an Open Agency type Artificial General Intelligence (AGI) and having a Global AGI Agency as its primary controller, but that there are also immense challenges to these significant benefits. After a brief exploration of the history of digital computation and global governance, I begin with an examination of two AGI types: Unitary Agent and Open Agency. Then, I provide a selected literature review of approaches to AI and AGI governance. The AGI governance literature is sparse, but a few AGI governance proposals are discussed. Next, I examine a proposed scenario in which the world has created a single AGI and that AGI is governed, in large part, by a Global AGI Agency. The Global AGI Agency which has four proposed core elements: (1) an institutional framework involving joint support from the UN and IEEE and from a coalition of national governments and private sector companies, (2) global collaboration and integration across key AI powers and companies, (3) the Open Agency AGI model itself, organized around principles of structured transparency, and (4) mechanisms for democratic accountability and access. Following the discussion of the Global AGI Agency proposal, I describe 10 challenges for this proposal. These 10 challenges include: international cooperation, centralization of power, innovation and competition concerns, private sector resistance, representation and fairness, complexity of governance, technical challenges of the Open Agency AGI model, democratic accountability limitations, security and information risks, and adaptability and future-proofing concerns. In the conclusion I reconsider the key points from the report and remind the reader of the important challenge of good AGI governance.

Recommended.

Bamzai on Sanctions and the Trading with the Enemy Act

Aditya Bamzai (University of Virginia School of Law) has posted Sanctions and the Emergency Constitution (172 University of Pennsylvania Law Review 1917 (2024)) on SSRN. Here is the abstract:

The Trading with the Enemy Act of 1917—or the “TWEA”—is the precursor to the modern statutory sanctions framework of the United States. Though significantly amended since its passage—and even replaced in part by a successor statute, the International Emergency Economic Powers Act of 1977—the TWEA’s origins are important both to an understanding of modern sanctions law and to an understanding of the development of American governance. In enacting the TWEA, Congress sought to codify aspects of preexisting prize and trading-with-the-enemy cases. This Article explores the cases that formed the backdrop against which Congress enacted the TWEA, as well as relevant aspects of the TWEA’s drafting history. It examines the cases that emerged in the aftermath of the TWEA’s passage, especially those that confronted Congress’s later decision to make TWEA applicable in times of “national emergency,” as well as in times of “war.”

Highly recommended.

Cheong on Artificial Justice

Je Young Cheong has posted (Artificial Intelligence) Artificial Justice or True Intelligence? Prospects, Limitations and Recommendations for our Algorithmic Legal Future on SSRN. Here is the abstract:

The advent of Artificial Intelligence (AI) has been an awoken giant, bearing the promise of a reverie future. Recall the nostalgia of the famous cartoon, The Jetsons, where the breadwinner of the family (George) worked a whopping 2-hours a week operating an “atomic supercomputer” just by pressing buttons. The sheer absurdity of such depiction drives an obsessive infatuation that has persisted to this day, bearing blissful idealization of a science-fiction and unattainable alternate reality. However, the exponential eclosion of AI’s capabilities are perhaps prophesizing that the fascinations of a wholly automated life may no longer be as fictionally Hanna-Barbera as we once thought. In a recent interview, Elon Musk opined that, in the coming future, jobs will change from being a necessity for survival into a hobby one willfully undertakes, as AI substitute the need for our manual labor. In this future, AI can perform various executions without need for human supplementation, relieving us of our labour to allow for a maximized life enjoyment. When this prophecy will come to light or what ethical implications it would bring is beyond the perimeters of this writing. But a certainty is this: the future is AI, and if life is to remain humanistically governed, the Law must proficiently define how the future will be written. The purpose of this writing, therefore, is to contribute to the wealth of discussion on AI and the Law from the perspective of what it means, its prospects for the future and the limitations of its eclosion.

Wilder on Constitutional Amendments

Bruce Wilder (Wilder Mahood McKinley and Oglesby) has posted How to Amend How to Amend the Constitution: The easy ways, the hard ways, and the best way on SSRN. Here is the abstract:

The United States Constitution was a remarkable, and forward-looking achievement in its time. In all the years that have elapsed since then, there have been wide-ranging technological, social, and political changes in our society, of a magnitude likely unimaginable to the drafters of that document, yet our ability to accommodate for those changes by amending it has faltered badly, especially over the last hundred years. We seem helpless to prevent a series of consequences that threaten the democratic republic 1 the original document was meant, albeit imperfectly, to be as the embodiment of the ideals expressed in the Declaration of Independence. This article discusses those problems and proposes solutions.

Wiggins on Justice Ruth Bader Ginsburg

Mary Jo Wiggins (University of San Diego School of Law) has posted The Scholar, the Harmonizer, and the Institutionalist (in The Jurisprudential Legacy of Justice Ruth Bader Ginsburg (New York University Press 2023)) on SSRN. Here is the abstract:

This book chapter, part of a collection of writings on the jurisprudential legacy of Supreme Court Justice Ruth Bader Ginsburg, examines how Justice Ginsburg's judicial perspectives resonated both within and beyond the field of bankruptcy law. More specifically, the chapter shows how Justice Ginsburg connected her bankruptcy opinions to her exemplary judicial aspirations and, even more important, how she joined bankruptcy law to the broader foundations of the American legal system. The chapter explicates three overarching themes in Justice Ginsburg's bankruptcy jurisprudence. First, her opinions reflected an interpretive methodology that blended textual and contextual analysis, displayed exacting rigor, and embraced a strong preference for predictability, uniformity, and restraint. Second, her opinions displayed deep appreciation for the critical task of harmonizing bankruptcy law with foundational legal concepts and doctrines outside bankruptcy. Finally, her opinions evinced strong fidelity to Supreme Court precedent, including respect for the proper allocation of jurisdictional power and authority among the federal courts. The chapter concludes by connecting these recurring themes to Justice Ginsburg's larger jurisprudential values and commitments.

Recommended.