Legal Theory Blog

Martinez & Tobia on Law Professor Opinions

Eric Martínez (Massachusetts Institute of Technology (MIT)) & Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy) have posted What Do Law Professors Believe about Law and the Legal Academy? An Empirical Inquiry on SSRN.  Here is the abstract:

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates.

Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law.

The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop.

Illuminating.

Freilich on Patent Salience

Janet Freilich (Fordham University School of Law) has posted Patents' New Salience (Virginia Law Review, Forthcoming) on SSRN.  Here is the abstract:

The vast majority of patents do not matter. They are never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling—including grant of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth—these problems may be insignificant in practice because patents are underenforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the salience of patents by making patents easier and cheaper to find and enforce. These developments—including private platforms’ adjudication systems and AI-driven patent analytics—profoundly impact how the patent system functions and upend the system’s present dependence on underenforcement and ignorance. Where most patents could previously be safely disregarded, formerly forgotten patents now matter.

This Article makes four contributions to the literature. First, by exploring the technology that is rendering patents newly salient and explaining how this alters basic assumptions underlying the patent system. Second, this Article demonstrates that although new technology is increasing the number of patents that can be reviewed and enforced, this transformation sometimes decreases the depth of patent analysis. Because it is difficult to draw conclusions about patent scope or validity without in-depth analysis, this omission means that technological review of patents may give patents unmerited influence.

Third, this Article shows a sharp divergence between public policy goals and private use of patents. For several decades, the courts and Congress have been reforming patent policy to decrease the impact of patents to alleviate concerns that patent owners hinder innovation by others. In clear contrast to this goal, this Article demonstrates an increase in patent salience that is due exclusively to the use of private platforms and technologies. Further, the use of private platforms to find, analyze, and enforce patents creates the risk that choices made by companies and software developers will displace substantive patent law. Finally, this Article suggests policy reform, including ways to improve technology and patents and adjusted approaches to patent doctrine and theory.

Gugliuzza & Koivula on the Federal Circuit & the Patent System

Paul R. Gugliuzza (Temple University - James E. Beasley School of Law) & Pyry Koivula (Temple University - James E. Beasley School of Law) have posted Our New Patent System? on SSRN.  Here is the abstract:

Since Congress created the Federal Circuit forty years ago, the court has occasionally been praised for providing uniformity and expertise in patent law. But, more often, it has been criticized: for engaging in overly aggressive review of district courts and the Patent Office, for disregarding Supreme Court precedent, and for shaping patent law in ways that discourage innovation, rather than promote it. The Solicitor General, who represents the Executive Branch in Supreme Court litigation, has been so successful at getting the Court to overturn Federal Circuit patent precedent that the Circuit was, not long ago, said to “stand in the shadow of the Solicitor General.”

But those narratives may no longer be true. This article, through a close study of patent cases decided by and cert petitions presented to the Supreme Court, suggests that the era of a renegade Federal Circuit constantly being reined in by the Court and the Solicitor General may be over. In several recent cases, the Supreme Court has rejected arguments by the SG to undo Federal Circuit patent precedent—something that, until 2011, had happened only once. And, though the SG still wields significant influence over which patent cases the Court hears on the merits, that, too, may be changing: at the conclusion of its most recent Term, the Supreme Court—for the first time ever—rejected the SG’s suggestion to grant certiorari in a patent case.

These developments have at least three implications. First, for patent doctrine, they suggest we are entering an era in which the Federal Circuit will have the last word on practically every issue—a potentially troubling dynamic because the court is uniquely vulnerable to interest-group capture and there are no other peer-level appellate courts to disrupt bad precedent. Second, for patent institutions, the SG’s litigation failures and the Supreme Court’s newfound apathy toward patent cases means that power is shifting toward not only the Federal Circuit but also the Patent Office—an awkward site of authority given the agency’s lack of power to promulgate substantive rules of patent law. Finally, the Supreme Court’s skepticism of the SG in patent cases is part of a broader story about separation of powers—a newly emboldened Supreme Court that is dismissive of Executive Branch institutions and unapologetic in its willingness to chart its own path.

Yet the new institutional arrangement this article identifies also presents opportunities. A Supreme Court that is disinterested in patent cases could spur the Federal Circuit to fix problematic doctrines on its own, rather than waiting for—or begging for—the Court to intervene, as the Circuit commonly does now. The modern Patent Office, despite formal limits on its power, is, as a practical matter, well-situated to tune patent law to various policy objectives. Finally, the Supreme Court’s hands-off approach to patent law and rebukes of the Executive Branch underscore the need to reform the Court as an institution.

Legal Theory Lexicon: Narrative and Normativity

Introduction

Many law students learn about "narrative" at some point in law school.  Of course, narratives (or more simply "stories") are all over the law.  Individual cases include narratives in their recitation of the facts and procedural history.  Sequences of cases can be studied as narratives, with events both internal and external to the law woven into a story about how and why the law changed.  Some legal narratives stress the internal development of the law: the law works itself pure.  Other legal narratives lay emphasis on forces external to the law: a Marxist narrative might explain legal change as a response to the interests of the capitalist class.  Narratives like these seek to explain legal change.  We might call them "causal narratives."

But in addition to the role of narrative in causal explanation, stories about the law can play a normative role.  By telling a story that explains how the law came to be the way it is, we may also be making implicit or explicit normative claims about the goodness or badness of the content of the law (or of a theory about law).  This entry in the Legal Theory Lexicon is about the normative role of narrative in law and legal theory.  As always, the Lexicon provides a short introduction aimed at law students with an interest in legal theory.

How Narratives Go Normative

Not all historical narratives are strongly normative--although all legal narratives may have some normative elements.  We can distinguish between narratives which primarily aim to give causal explanations and those narratives which primarily aim at influencing normative evaluation of the actions and events recounted in the narrative.  Thus, we might distinguish between "causally implicated narratives" and "normative charged narratives."  Almost all narratives are causally implicated; stories explain actions by invoking folk psychological explanations: "Ben voted for the legislation in order to get reelected."  Ben's action, voting for the bill, is explained by a motive, to get reelected.  Stories implicitly explain actions and events--even when they do not make explicit causal claims.

How do narratives acquire a "normative charge"?  The normative claims of narratives are frequently implicit and they rarely come in the form of fully developed normative arguments. The deep normative assumptions of narrative frequently come to the surface in the form of value-laden descriptions. Actions are explained by motives that are characterized as selfish or altruistic, progressive or conservative, foolish or wise. Events are characterized as disasters or triumphs. At one level, the normativity of narrative is inescapable.  Many of the stories that interest humans are “morality plays,” with heroes and villains, happy endings and tragic finales, poetic justice and cruel twists of fate. No one should expect narrators to engage in “normative abstinence.”

Narrative and Identity

Narratives can acquire normative significance in another way, by telling a story about that ties the identity of some group to some trajectory of historical development.  The entanglement of narrative with identity is common in constitutional history.  Consider the following example, which presents a very simplified and somewhat altered version of a narrative account of the New Deal associated with Bruce Ackerman:

Suppose that the transformation of constitutional law during the New Deal was an act by "We the People" that rejected formalist doctrines that hobbled the development of a national administrative state and empowered the President to make transformative appointments to the Supreme Court.  These appointments resulted in New Deal constitutional moment that authorized Congress and the President to solve the pressing problems of the Great Depression, then our current identity as Americans (as part of "We the People") is tied to support for these constitutional changes.  Because the New Deal constitutional moment is part of our identity as a people, supporting this historical event is part of "being American" or being one of "We the People"--and conversely, rejection of the New Deal constitutional moment is rejection of one's connection to American history and hence of one's status as "one of us," a member of "We the People."

Of course, this narrative is contestable--another story could be told about the New Deal constitutional moment that portrayed it as a usurpation that lead to an out-of-control bureaucracy that has hobbled the economy and endangered democracy.  The point is that this kind of constitutional narrative is normatively charged--even if it does not explicitly make normative claims or employ the conventional resources of normative legal theory.

Narratives and the Normative Evaluation of Beliefs

Some narratives are about beliefs.  These narratives tell a story about how we came to have our beliefs about some aspect of law.  Some of these narratives "debunk," aiming to delegitimate a belief--by showing that the origins of the belief are such that the belief is unreliable or tainted.  Other narratives "vindicate," aim to establish the process by which the belief was formed is reliable and hence that the belief is likely true.  Similarly, the origins of a belief might be associated with right actions or good people, suggesting that the belief itself is good.

The use of debunking and vindicating narratives is especially relevant to legal theory when a story is told about the development of a legal theory itself.  For example, a vindicating narrative about American legal realism might begin by identifying legal formalism with the interests of the wealthy and powerful and rationalization of injustice for the poor and powerless.  Legal realism, the narrative might continue, was championed by progressives, who developed the new legal theory in order to put law in the service of the common good and the struggle against injustice and oppression.  Formalist beliefs, the narrative suggests, are "bad," whereas realists beliefs are "good."  In this toy example, the narrative vindicates legal realism and debunks legal formalism.

The Genetic Fallacy

Although normative narratives may be rhetorically powerful, some critics of the normative use of narrative are worried that their persuasive force may rely on rhetoric rather than reason.  One version of this worry is expressed by invocation of the "genetic fallacy"--one of the informal fallacies identified in standard accounts of informal logic.  The key idea is that the origins of an idea or belief may not be relevant to its truth or falsity.  Sometimes this is clear.  From the fact that Hitler was a vegetarian, it does not follow that vegetarianism is morally abhorrent.  From the fact that Franklyn Delano Roosevelt, Jr., a great President, approved the internment of Japanese Americans, it does not follow that their detention was morally permissible.

Likewise, it is not clear that narratives that a link between some legal phenomenon and identity provides good reasons for supporting the legal phenomenon.  From the fact that a narrative associates some historical development with a particular identity (e.g., being an American), it does not follow that the development is good, right, or justice.  The fact that a given legal practice is part of a group's identity is consistent with that practice being thoroughly bad: if racism is part of American identity, it does not follow that racist laws are good.  Although identity claims may be persuasive, it is not clear that they rest on valid arguments.

Although some normative narratives about beliefs or theories commit the genetic fallacy, this is not always the case.  In other cases, the origins of a belief truly are debunking--because it can be shown that the causal mechanism that induces the belief is such that it is inconsistent with the truth of the belief.  Or the debunking explanation might show that whether or not the belief is true, the causal mechanisms that induced the belief did not rely on good evidence and hence that the belief is not well grounded--even if it might turn out to be true upon further investigation.  In either event, the debunking narrative provides good reason to question the belief.  What is sometimes called "critique of ideology" works in this way.  If it could be shown that the ideal of the rule of law is an ideological construct that was developed in order to further the interests of the capitalist class, that would be a good reason to question the belief that the rule of law is normatively valuable.

Conclusion

 Normative narratives are common in contemporary legal theory, but the theoretical foundations for the claims that narratives have normative significance are seldom made explicit.  This aim of this entry in the Legal Theory Lexicon was to provide an introduction to these issues and to give readers a basis for reflection.

Related Lexicon Entries

• Legal Theory Lexicon 003: Hypotheticals
• Legal Theory Lexicon 014: Fact and Value
• Legal Theory Lexicon 020: Causation
• Legal Theory Lexicon 040: Functional Explanation in Legal Theory
• Legal Theory Lexicon 046: Legitimacy

Bibliography

• Raymond Geuss, The Idea of a Critical Theory: Habermas and the Frankfurt School (1981).
• Lawrence B. Solum, Narrative, Normativity, and Causation, 2010 Mich. St. L. Rev. 597, 602 (2010).
• Jacob Van Vleet, Informal Logical Fallacies: A Brief Guide (2010).

(First posted on August 7, 2022.)

Legal Theory Bookworm: Bounded Rationality by Dhami & Sunstein

The Legal Theory Bookworm recommends Bounded Rationality: Heuristics, Judgment, and Public Policy by Sanjit Dhami & Cass R. Sunstein.  Here is a description:

Bounded rationality recognizes that human behavior departs from the perfect rationality assumed by neoclassical economics. In this book, Sanjit Dhami and Cass R. Sunstein explore the foundations of bounded rationality and consider the implications of this approach for public policy and law, in particular for questions about choice, welfare, and freedom. The authors, both recognized as experts in the field, cover a wide range of empirical findings and assess theoretical work that attempts to explain those findings. Their presentation is comprehensive, coherent, and lucid, with even the most technical material explained accessibly. They not only offer observations and commentary on the existing literature but also explore new insights, ideas, and connections.
 
After examining the traditional neoclassical framework, which they refer to as the Bayesian rationality approach (BRA), and its empirical issues, Dhami and Sunstein offer a detailed account of bounded rationality and how it can be incorporated into the social and behavioral sciences. They also discuss a set of models of heuristics-based choice and the philosophical foundations of behavioral economics. Finally, they examine libertarian paternalism and its strategies of “nudges.” 

And from the reviews:

“Bounded Rationality is simply the best book on this topic. Encompassing, empirically grounded, analytically sophisticated, and intuitively compelling.”
—Ernst Fehr, Professor of Economics, University of Zurich  

“This is a wonderful introduction to both classic and more recent behavioral economics. The mixture of theory and empirical evidence is very useful and healthy. The applications to public policy are particularly interesting. I highly recommend it to all entrants to the field.”
—Xavier Gabaix, Pershing Square Professor of Economics and Finance, Harvard University

Download of the Week: "Text is Not Law" by Encarnacion

The Download of the Week is Text is Not Law by Erik Encarnacion.  Here is the abstract:

The Supreme Court’s landmark decision in Bostock v. Clayton County provides further fodder for debates about textualism, given the dueling opinions of Justices Gorsuch, Alito, and Kavanaugh, each of which purports to apply textualist reasoning correctly. But in a little-remarked-upon passage, Justice Gorsuch’s opinion casually conflates text and law, asserting, “[o]nly the words on the page constitute the law adopted by Congress and approved by the President.” In equating statutory text with law, Justice Gorsuch isn’t alone, following in the footsteps of other prominent textualists, including the late Justice Antonin Scalia and Judge Frank Easterbrook.

But text is not law—and cannot be. Conflating statutory text and law makes a category mistake. And not a harmless one. Nor is the conflation easily dismissed as an example of incautious rhetoric. The conflation fosters confusion about textualism and further muddles public understanding of appellate adjudication by propping up the myth that appellate judges should—and can—avoid making law. Conflating text and law also facilitates a type of literalist interpretation--indeed, opportunistic literalism--that defenders of textualism purport to reject.

Despite these problems, the casual conflation of text and law is likely here to stay, at least in part because it provides rhetorical advantages to textualist judges by allowing them to sidestep thorny controversies about linguistic meaning and the nature of law. This advantage suggests that textualist judges will continue to claim, falsely, that text is law.

Important and highly recommended.

Sax on Vaccine Hesitancy

Joanna Sax (California Western School of Law) has posted COVID-19 Vaccine Hesitancy and (Mis)perception of Risk (American Journal of Law & Medicine 2022, vol. 48, pages 54-90) on SSRN.  Here is the abstract:

This Article tackles the critical problem of COVID-19 vaccine hesitancy and provides a normative framework for legal policies to address such hesitancy in the ongoing pandemic. The foundation of this Article rests in decision-making theories that allow policymakers to understand individual misperception of risk as compared to evidence-based assessment of risk. Vaccine-hesitant individuals assign a high risk to the COVID-19 vaccine and a low risk to the disease—a perception that is disconnected from the science. The backbone of this Article is the timeline of the COVID-19 pandemic and the underlying science of the disease and vaccines. The timeline provides a factual background to demonstrate how vaccine hesitancy to the COVID-19 vaccine emerged. The instant pandemic also demonstrates changes in how individuals see themselves in society, receive information, and are persuaded by economic forces. This Article combines the individual’s decision-making process with modern day variables to suggest interventions that can undo anti-vaccine damage. While the novelty of the normative framework provided herein is instructive for current COVID-19 vaccine hesitancy issues, this framework can be applied to other areas in which individual’s perceptions of risk are disconnected from evidence-based assessment of risk.

Stark, Bernhardt, Mills, & Robison on Re-Indigenizing Yellowstone

Kekek Stark (Alexander Blewitt III School of Law), Autumn Bernhardt (Colorado State University Honors Program), Monte Mills (University of Montana - Alexander Blewett III School of Law), & Jason Robison (University of Wyoming - College of Law) have posted Re-Indigenizing Yellowstone (Wyoming Law Review, Vol. 22, No. 2, 2022) on SSRN.  Here is the abstract:

Prepared for the 2022 sesquicentennial of Yellowstone National Park, this Article focuses on the historical and contemporary relationships between the National Park Service (and other federal entities) and the 27 federally recognized tribes with traditional connections to Yellowstone. The Article surveys Native connections to Yellowstone, tracks the evolution of federal-tribal relations at Yellowstone from 1872-2022, and presents a suite of options for future federal-tribal co-management of Yellowstone moving forward from the sesquicentennial.

Hafetzepartment of Homeland Secutiry v. Thuraissigiam

Jonathan Hafetz (Seton Hall Law School) has posted The Suspension Clause after Department of Homeland Security v. Thuraissigiam (St. John's Law Review , Vol. 95, No. 2, 2022) on SSRN.  Here is the abstract:

This article examines the Supreme Court’s 2020 decision in Department of Homeland [Security] v. Thuraissigiam. In Thuraissigiam, the Court upheld Congress’s elimination of habeas corpus review over a challenge by an asylum seeker from Sri Lanka, who was seized by federal agents just inside the U.S.-Mexico border. The Court concluded that the Constitution’s Suspension Clause did not apply to the petitioner because the right he was seeking—to remain in the United States under the nation’s immigration laws—fell outside the historical core of the Suspension Clause, which was limited to challenging detention as such.

The article argues that the Supreme Court erred in several key respects, including by misreading the historical record and misconstruing its own precedents. The article also describes how Thuraissigiam, if read broadly, could limit future habeas review not only over the removal of immigrants seized in the United States, but also over other government restraints on liberty that do not seek continued detention as their purpose, from the extradition of criminal suspects to the transfer of military prisoners. While it injects new uncertainty into formerly settled areas of habeas jurisprudence, Thuraissigiam ultimately decided very little. The article explores several ways that—notwithstanding Thuraissigiam—courts can and should guarantee meaningful judicial review of detention in noncitizen cases and to ensure the Suspension Clause remains a meaningful limit on a variety of custodial restraints. Above all, the article explains why courts should view the Suspension Clause as protecting evolving understandings of habeas corpus rather than one frozen in time at the nation’s Founding to ensure that it remains capable of reaching a broad range of liberty deprivations.

Shanor & Light on Greenwashing and the First Amendment

Amanda Shanor (University of Pennsylvania - The Wharton School) & Sarah E. Light (University of Pennsylvania, The Wharton School - Legal Studies & Business Ethics Department) have posted Greenwashing & the First Amendment (Columbia Law Review, Forthcoming 2022) on SSRN.  Here is the abstract:

Recent explosive growth in environmental and climate-related marketing claims by business firms has raised concerns about their truthfulness. Critics argue (or at least question whether) such claims constitute greenwashing, which refers to a set of deceptive marketing practices in which an entity publicly misrepresents or exaggerates the positive environmental impact of a product, service, or the entity itself. The extent to which greenwashing can be regulated consistent with the First Amendment raises thorny doctrinal questions that have bedeviled both courts and scholars, the answers to which have implications far beyond environmental marketing claims. This Essay is the first to offer both doctrinal clarity and a normative approach to understanding how the First Amendment should tackle issues at the nexus of science, politics, and markets. It contends that the analysis should be driven by the normative values underlying the protection of speech under the First Amendment in the disparate doctrines that govern these three arenas. When listeners are epistemically dependent for information on commercial speakers, regulation of such speech for truthfulness is consistent with the First Amendment and subject to the laxer review of the commercial speech doctrine. This is because citizens must have accurate information not only to knowledgably participate at the ballot box but also to have meaningful freedom in economic life itself.

Highly recommended.

Meyer & Sitarman on National Security and the Major Questions Doctrine

Timothy Meyer (Duke University School of Law) & Ganesh Sitaraman (Vanderbilt Law School) have posted The National Security Consequences of the Major Questions Doctrine on SSRN.  Here is the abstract:

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the 21st century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national security-related conflicts—wars of territorial conquest, terrorism, nuclear proliferation—increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences.

The most likely consequence is that if applied to economic delegations that touch foreign commerce, the MQD will turn judges—and particularly lower court judges—into some of the key policymakers in shaping the future of American foreign policy and national security. This prospect should be troubling, as judges are ill-suited to be foreign policymakers.

Highly recommended.

Solove & Hartzog on Privacy and Data Security

Daniel J. Solove (George Washington University Law School) & Woodrow Hartzog (Boston University School of Law; Stanford Law School Center for Internet and Society)  posted Unifying Privacy and Data Security (Chapter 7 of BREACHED! WHY DATA SECURITY LAW FAILS AND HOW TO IMPROVE IT (Oxford University Press 2022)) on SSRN.  Here is the abstract:

This book chapter discusses the relationship between privacy and data security. Privacy is a key and underappreciated aspect of data security. Right now, there is a schism between privacy and security in companies. Privacy functions are commonly addressed by the compliance and legal departments, while security is handled by the information technology department. The two areas are commonly split apart and rarely speak to each other.

The chapter argues that we should bridge data security and privacy and make them go hand-in-hand in both law and policy. Strong privacy rules help create accountability for the collection, use, and dissemination of personal information and can reduce vulnerabilities and risk by minimizing the use and retention of personal information. Good privacy strengthens security. The chapter specifically focuses on the importance of data minimization and data mapping as privacy practices that have tremendous benefits for data security.

This piece is Chapter 7 of Daniel J. Solove and Woodrow Hartzog's book, BREACHED! WHY DATA SECURITY LAW FAILS AND HOW TO IMPROVE IT (Oxford University Press 2022). In the book, Professors Solove and Hartzog explore the shortcomings of data security law. They argue that the law fails because, ironically, it focuses too much on the breach itself.

Recommended.

Usulor on International Law and Politics and Conflict Resolution

Chukwuebuka Usulor (University of Nigeria, Faculty of Law) has posted International Conflicts: Striking a Balance between International Law and International Politics on SSRN.  Here is the abstract:

The outbreaks and persistence of inter-state or international conflicts call into question the efficacy of international law and international politics as instruments for the maintenance of peace, order and stability in the relations between countries.

This paper argues that the resolution of international conflicts and the realisation of lasting peace can only be accomplished when a balance between international law and international politics is secured. It discusses the relationship between the two systems and the practical ways to guarantee an equilibrium between them.

Baluarte on Refugees & Serious Nonpolitical Crimes

David Baluarte (Washington and Lee University School of Law) has posted Refugees Under Duress: International Law and the Serious Nonpolitical Crime Bar (9 Belmont Law Review 2 (2022)) on SSRN.  Here is the abstract:

Kevin Euceda was forcibly recruited by the MS-13 gang when he was just thirteen years old. Kevin was destitute after being abandoned by his parents in San Pedro Sula, Honduras, and the gang commandeered his house as a base of operations and compelled his participation in gang activities. Over the years, Kevin was forced into minor roles in the gang’s criminal enterprise, and on a couple of occasions was obligated to engage in violence. These violent acts haunted Kevin and left him severely traumatized. Kevin endured life under the thumb of the violent gang until he was seventeen, when he seized a rare chance to escape. He fled Honduras, traversing dangerous migratory channels through Guatemala and Mexico to arrive in the United States, where he believed he could find protection. His trauma was evident when he arrived in the United States, leading immigration officers to medicate him, require counseling, and place him on suicide watch. Unbeknownst to Kevin at that time, an arduous legal battle awaited him that he would be forced to wage from detention centers throughout the United States because of his perceived dangerousness. While his legal case was strong in many respects, he ended up being unable to endure the cost of the fight, jailed like a criminal in immigration detention for the three years that his lawyers worked to secure protection in the United States. Over this period, a judge’s decision to award him asylum was reversed, and her orders to release Kevin from detention were twice blocked by the Department of Homeland Security (“DHS”). Kevin accepted deportation to Honduras as his only escape from detention while his case continued to languish in a seemingly endless process. He met an untimely death in an accident just months later.

Simon-Kerr on Credibility

Julia Ann Simon-Kerr (University of Connecticut - School of Law) has posted Law's Credibility Problem on SSRN.  Here is the abstract:

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they frequently condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is, astonishingly enough, no stable definition of credibility in the law. Courts and agencies are all over the map—diverging at the most basic definitional level—in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress, in the INA, enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” This presumption, the applicant argues, means that the Court of Appeals must credit his testimony and reverse the decision below.

Should the applicant win? Clearly, the answer depends on what “credibility” (and its presumption) entails. But the Supreme Court, confronting this exact question recently in Garland v. Dai, declined to provide an answer. Instead, it showcased the analytic confusion that surrounds credibility writ large. At oral argument, it canvassed four distinct ideas of credibility; and in the opinion, it offered a “definition” of credibility that managed to replicate, rather than resolve, the ambiguity among the four. Meanwhile, the everyday work of adjudication continues. Every year, thousands of cases are resolved on credibility grounds—many with life-altering consequences—despite the confusion at the heart of the legal concept.

The time has come for our legal system to clarify what it means by “credibility.” The answer may differ across contexts or include disparate definitions. But within any given adjudication—like an immigration proceeding—greater precision is a must. To that end, this essay explores different ideas of credibility, taking the Garland v. Dai argument and opinion as a source of (cautionary) inspiration. I explain (1) why credibility is necessarily distinct from truth, but also (2) that from there, the concept becomes more malleable. Is credibility a synonym for persuasiveness? Does it refer to the likelihood that someone is telling the truth in this case? To the likelihood that they generally tend to tell the truth? To whether they seem like they’re telling the truth? Ultimately, there is no ideal definition of credibility; it depends on what work the concept is trying to do. What is far from ideal, however, is the current state of affairs, in which credibility means everything and nothing—notwithstanding its role in shaping people’s lives.

Highly recommended.

Kang on Frederick Douglass

John M. Kang (University of New Mexico - School of Law) has posted The Political Urgency of Black Manhood: Frederick Douglass on Constitutional Theory (New Mexico Law Review, Vol. 52, No. 2, 2022) on SSRN.  Here is the abstract:

How did Frederick Douglass—one who was born a slave, one who had been denied all formal education, one who had been sundered from his family, one who had been starved, tortured, and, on occasion, nearly killed—manage to muster the courage to do something as bold as challenge the United States Supreme Court? This Article suggests that Douglass, in order to assert his right as an American citizen, first had to assert his right as a man in an explicitly gendered sense. That is, Douglass had to muster a powerful sense of manliness that could elevate him psychologically to assert his right to equal citizenship under the Constitution. He had to generate a potent faith in his own gendered identity in order to overcome the debilitating political stigma that attached to his racial identity. Only by doing this, was Douglass able to make the powerful claim that he was entitled— as an American citizen—to contest the authority of the U.S. Supreme Court.

Adler on the Major Questions Doctrine

Jonathan H. Adler (Case Western Reserve University School of Law; PERC - Property and Environment Research Center) has posted West Virginia v. EPA: Some Answers about Major Questions on SSRN.  Here is the abstract:

In West Virginia v. Environmental Protection Agency (WV v. EPA) the Supreme Court rejected an expansive reading of Section 7411 of the Clean Air Act. Expressly invoking the 'major questions doctrine' for the first time in a majority opinion, the Court concluded Section 7411 of does not allow the EPA to require generation shifting to reduce greenhouse emissions. This decision rested on the longstanding and fundamental constitutional principle that agencies only have that regulatory authority Congress delegated to them. The Court further bolstered the argument that delegations of broad regulatory authority should not be lightly presumed, but also left substantial questions about the major questions doctrine unanswered. By skimping on statutory analysis and front-loading consideration of whether a case presents a major question, the also Court failed to provide much guidance for lower courts. While WV v. EPA represents a missed opportunity to clarify and ground the major questions doctrine, it remains a tremendously important decision, and will be cited routinely in legal challenges to new regulatory initiatives. While limiting the scope of Section 7411, the decision did not curtail the EPA’s traditional air pollution control authorities, nor does it preclude the EPA from using such authorities to regulate GHGs. It does, however, make it more challenging for the EPA or other agencies to develop new climate change policies relying upon preexisting statutory authority directed at other problems.

Highly recommended.  Download it while it's hot!

Tillman on Ruger's Letter to Gadsen

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted A Response to Dean Ruger’s Letter to Professor Gadsden, University of Pennsylvania Faculty Senate Chair, Calling for the Imposition of a Major Sanction Against Professor Wax on SSRN.  Here is the abstract:

This is a short statement responding to the misuse of contestable historical materials to achieve ideological ends in the guise of the discipline of an academic colleague. It is a reflection on the dangers of political correctness in today's academic environment.

Procaccini on Freedom of Speech

Francesca Procaccini (Vanderbilt University - Vanderbilt Law School; Harvard Law School; Yale Law School) has posted Equal Speech Protection (Virginia Law Review, Vol. 108, No. 353, 2022) on SSRN.  Here is the abstract:

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine.

Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Pi on Legal Indeterminacy

Daniel Pi (University of Maine - School of Law) has posted The Indeterminacy of Legal Rules on SSRN.  Here is the abstract:

This Article demonstrates that the rules of any legal system are necessarily indeterminate. The argument consists of two theorems. The first theorem proves that legal rules cannot be determined by ostension. The second theorem proves that legal rules cannot be determined by description. Taken together, the two indeterminacy theorems establish that legal rules cannot constrain the outcomes of legal disputes. Therefore, any apparent regularities observed in legal decision-making must have causal sources outside of law. Several possible sources of such regularities—economic efficiency and political power most conspicuously—are considered.

Sokol on the Global Rule of Law & Climate Litigation

Karen C. Sokol (Loyola University New Orleans College of Law; Princeton University School of Public and International Affairs) has posted Forging Global Rule of Law Through Litigation Against the United States and the Fossil Fuel Industry (4 Yearbook of International Disaster Law (Forthcoming 2022)) on SSRN.  Here is the abstract:

More than a decade ago, researchers, according to the United Nations Intergovernmental Panel on Climate Change (IPCC), had already concluded that "litigation is likely to be used increasingly as countries and citizens become dissatisfied with the pace of international and national decision-making on climate change." They were right: Climate cases have become a global phenomenon, expanding across jurisdictions and venues, and invoking international, national, and local laws. It has become clear that issues about responsibility for the climate crisis and for climate harms in the courts, in legal arguments, and in legal opinions will increasingly become commonplace, rather than exceptional. This global wave of climate litigation includes a case filed in a U.S. federal district court against the U.S. government and several cases filed in U.S. state courts against major investor-owned fossil fuel companies. In this article, I argue that these cases are particularly important for two related reasons. First, they seek to hold to account the country and entities that bear significant responsibility for the climate crisis. Second, these cases demonstrate how litigation can provide a mechanism for forging the rule of law in global climate governance, which necessarily includes international disaster law. While litigation cannot alone achieve this, it is essential, as it seeks to bring a judicial component to climate governance.

Czapnik on Public Morals & the WTO

Ben Czapnik (The Chinese University of Hong Kong) has posted ‘Moral’ Determinations in WTO Law: Lessons from the Seals Dispute (Journal of International Economic Law 2022) on SSRN.  Here is the abstract:

This article develops a conceptual framework for understanding the ambiguous concept of public morals in World Trade Organization (WTO) law. It reviews the jurisprudence and literature to suggest there are four main options for operationalizing this concept in a legal test. If WTO adjudicators opt for an empirical approach, they can test whether a certain belief is genuinely held within the regulator’s society (unilateralism) or whether it is shared more broadly by the global community (externalism). If WTO adjudicators prefer a ‘moral’ approach, they can interrogate the content of the regulator’s measure (normative inquiry) or whether it addresses a moral issue (meta-ethical inquiry). Each of these approaches suffers from important weaknesses. WTO adjudicators have taken an equivocal approach: they make amorphous statements alluding to all four approaches but do not settle on a clear public morals legal test. In Seals, they went further by establishing an equivocal characterization of the European Union’s (EU) policy objective, which failed to clarify what the EU’s seal products ban sought to achieve or even whether it was based on objective rational considerations. This use of fallacious reasoning by dispute bodies has important implications for WTO law with respect to indeterminacy, transparency, and judicial activism.

Aimonetti on Subject-Matter Jurisdiction Dismissals & Alternative Holdings

Justin W. Aimonetti (University of Virginia School of Law) has posted Article III and Alternative Holdings (University of Louisville Law Review, Vol. 61, Forthcoming 2023) on SSRN.  Here is the abstract:

Often federal courts, especially district courts, will provide both a central reason for why one party loses and an additional reason, too. So-called “alternative holdings” are thought to “reverse-proof” a judgment—that is, provide a reviewing court with multiple reasons to affirm the decision below. There is no question that when alternative holdings concern solely non-jurisdictional issues, they can serve as valuable tools of judicial administration. Problems arise, however, when a federal court concludes that it lacks Article III jurisdiction yet holds in the alternative that even if it possessed Article III jurisdiction the plaintiff’s claim would still fail on the merits.

Article III of the federal Constitution permits federal courts to decide only “Cases” and “Controversies.” Without Article III jurisdiction, a federal court has a singular duty to dismiss the action. Defying that duty may result in the court issuing a prohibited advisory opinion—adjudicating the merits of a claim where the court lacks jurisdiction to entertain the claim in the first place. Despite the constitutional prohibition on issuing advisory opinions, federal courts have seen fit to provide an alternative non-jurisdictional holding warranting dismissal even after concluding that no Article III jurisdiction exists. Indeed, as this Article demonstrates, federal district courts engage in this practice with frequency.

In response to this frequent practice, this Article contends that federal courts overstep their constitutional bounds when they conclude that no Article III jurisdiction exists but then proceed to provide an alternative non-jurisdictional holding. A federal court, in other words, issues a prohibited advisory opinion when it concludes that it lacks Article III jurisdiction but then provides in the alternative that the plaintiff loses for a non-jurisdictional reason, too. This Article argues that a federal court should halt all discussion of non-jurisdictional matters as soon as the court concludes that it lacks Article III jurisdiction. Formalistic as this rule may seem, failure to respect it can result in courts exercising judicial power not granted by Article III.

Scott, Choi, & Gulati on Contractual Landmines & Boilerplate

Robert E. Scott (Columbia University - Law School), Stephen J. Choi (New York University School of Law), & Mitu Gulati (University of Virginia School of Law) have posted Contractual Landmines on SSRN.  Here is the abstract:

The conventional view is that standardized boilerplate terms represent an optimal contractual solution to the contracting problems facing parties in large markets. As Clifford Smith and Jerold Warner famously explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals, to the contrary, numerous instances of harmful landmines--vague and apparently purposeful changes to standard language that increases a creditor’s nonpayment risk, coupled with blatant errors in expression and drafting and a continuing use of inapt terms that were historically imported from corporate transactions. Moreover, these landmines differ from each other in important respects: purposeful changes to the standard form reflect careful lawyering on behalf of sovereign clients, while errors that only benefit subsequent activists reflect haste in adapting precedents to new transactions.

Using a unique data set together with interviews from leading practitioners, we find that the conventional view fails to recognize the unique role that lawyers, both experienced lawyers and novices, play in the drafting of standard form contracts. Experienced lawyers, the “gurus,” play an outsized role in the drafting of the debt contracts used in large liquid markets such as sovereign debt. In negotiating with the underwriters who place these instruments on the market, gurus are able to insert vague language that softens the strict payment obligations found in the standardized terms. These changes to the standard form are “subversive” in the sense that they offer strategic advantage to the sovereign in subsequent restructuring negotiations. Novice lawyers, on the other hand are reluctant to negotiate important changes in the standard from but their haste in executing the contract can lead to harmful errors. We find that subversive landmines are common in contemporary sovereign debt contracts and are more prevalent than the errors that occur when inexperienced lawyers attempt to make changes in the standard terms.

Highly recommended.  Download it while it's hot!

Duff on a Communicative Theory of Punishment

R. A. Duff (University of Stirling - Department of Philosophy) has posted Punishment as Communication (Oxford Handbook of Punishment Theory and Philosophy, ed. Jesper Ryberg, Forthcoming) on SSRN.  Here is the abstract:

This chapter defends a communicative theory of punishment, as making plausible sense of the retributivist idea that wrongdoers should not enjoy impunity. In the context of criminal law, the wrongs that matter are public wrongs that concern the whole polity: the criminal law defines those wrongs, and provides for those who commit them to be called to formal public account, for them through the criminal process. That calling to account is a communicative process: it culminates in a conviction that censures the offender, and seeks an apologetic response from him. The punishment that typically ensues furthers this communicative exercise: the offender is required to undertake, or undergo, a penal burden that constitutes an apologetic reparation for his crime, and so communicates to him the need for such reparation. Central to this communicative conception is that punishment is a two-way process, which seeks an appropriate response from the offender, who has an active role in the process. The role of prudential deterrence in such an account is discussed: it is a necessary condition of a justifiable system that it has some dissuasive efficacy, and deterrence might be a dimension of that dissuasion—inextricably interwoven with the moral message that is the core of the communication. A purely communicative account that allows no room for deterrence might be implausible as an account of what human punishment ought to be; but one that portrays a two-way moral communication as the primary, distinctive aim of criminal punishment can be defended.

This is a concise summary of Duff's theory of punishment.  Even if your primary interests are far outside the field of criminal law, this is a must read for those who are not already familiar with Duff's approach.  Highly recommended!  Download it while it's hot!

Bauer on History & Dynamic Interpretation

Franz Bauer (Max Planck Institute for Comparative and International Private Law) has posted Historical Arguments, Dynamic Interpretation, and Objectivity: Reconciling Three Conflicting Concepts in Legal Reasoning (The Law between Objectivity and Power, pp. 111-143, Philip Bender, eds., Nomos, May 2022) on SSRN.  Here is the abstract:

Since the nineteenth century, the notion of a ‘historical’ type of argument is deeply entrenched in the German discourse on legal reasoning. These arguments, based on the historical context or the legislative history of a norm, are sometimes regarded as a more objective basis for legal decision making than ever-contentious normative judgements. At the same time, historical reasoning has been charged for making dynamic interpretation impossible by ‘freezing’ the law in an original state that will soon be outdated by social change. This common image can be exemplified by the Thuringian Constitutional Court’s recent decision on the constitutionality of gender-balanced election lists. In this article, I argue that this image is over-simplistic and misleading on both counts: Historical arguments cannot provide the kind of definite objectivity that is sometimes attributed to them, although they can have an important rationalising effect, depending on how thoroughly the historical enquiry is carried out. Nor are such arguments by their very nature static. With respect to legislative intent, theorists have drawn a useful distinction between ‘intent as meaning’ and ‘intent as purpose’. When legislators choose a particular term with a specific meaning in mind, this intention has to be respected. But when their primary concern is about attaining some legislative purpose, the interpreter is called upon to align this initial purpose with modern day conditions. In this way, historical arguments can provide a useful standard for rationalising dynamic interpretation and, thereby, both support and constrain interpretative change.

Marasini & Neupane on Freedom of Expression & International Law

Shashi Nath Marasini & Madhusudan Neupane (Bajra International College) have posted Provisions of Freedom of Expression in International Law on SSRN.  Here is the abstract:

The right to freedom of opinion and expression has been protected in all the relevant international human rights treaties. In international law, freedom to express opinions and ideas is considered essential at both an individual level, and as it contributes to the overall development of a person, and is a foundation stone of democratic society. Free speech is a necessary precondition to the enjoyment of other rights, such as the right to vote, free assembly and freedom of association, and is essential to ensure press freedom. However, there is a clear and worrying global trend, including in the western democracies, like the USA and UK, of governments limiting vibrant discussions and debates within the civil society and among civil societies, political leaders and governments. Freedom of expression is a fundamental human right of every citizen in the civilized world. It reflects the values of a democratic society. It has to be guaranteed in a constitution as a fundamental right of the people. It has also been rectified by UN convention (UDHR), European Convention, American Bill of Rights, and African Charters for providing the best environment for the people of the world internationally. The right to freedom of expression enjoys fairly broad protection in international law. However, since this right is not absolute, it must be balanced in consideration of other rights, notably the right to privacy and the right to non-discrimination. States have obligations to protect free speech, to protect the individual’s right to privacy, and to protect media workers from harm related to their line of work, as well as an obligation to restrict the freedom of expression in certain circumstances.

Taylor on Digital Human Rights

Richard D. Taylor (Pennsylvania State University) has posted Preserving Human Rights Across the Digital Domain on SSRN.  Here is the abstract:

Digital human rights are under threat. The U.S. and China are vying for dominance across the digital domain. Each represents allies with shared fundamental values. Alternative governance models are being advanced, reflecting divergent understandings of “human rights”, one as universal and the other as situational. The language of the U.N.’s 1948 “Universal Declaration of Human Rights” (UDHR) is being inverted. Tethering rights to the U.N.’s “Sustainable Development Goals 2030” (SDGs) grounds them concretely in common interests.

The “telecommunications” sector now embraces a wide range of digital technologies, applications, content and capacities (the “Digital Domain”). Control of this space implicates core values. The U.S. approach is based on “Western” values of democracy, free trade, open markets, equality, and rule of law. It favors individual rights. The China bloc takes a communitarian, command economy, hierarchical approach, valuing security and social harmony over individual liberty. Both are seeking Digital Domain dominance to gain control of growing flows of “data” to fuel innovation and growth.

The nexus is the U.N., the ITU, and affiliated bodies. UNSG Guterres is offering a new approach. His 2020 “Roadmap for Digital Cooperation” and 2021 Report, “Our Common Agenda” aim to capture the benefits of stakeholder inputs while respecting the positions of Member-states. He has called for a “Summit of the Future” in 2023 to seek a “Global Digital Compact” proposing “a more inclusive and networked multilateralism” with “sovereignty reimagined”. At the same time, multiple stakeholder forums will be engaged.

The UDHR sets out 30 basic human rights. Its authors believed that human rights are “inherent, inalienable, and applicable to all human beings”. However, their “universal” language is being qualified by the China bloc to reverse the notion that “human rights” are “universal” but instead are conditional and situational. Each nation should be free to define “human rights” as it sees fit. The SDGs embody objective targets for advancing the non-instrumental goal of human well-being, a proxy for human rights. They create opportunities for identification of common interests (e.g., health, climate, water, hunger, etc.) which can lead to collaborations and promote international flows of data.

The paper will: i) Describe and compare alternative Digital Domain governance strategies, balancing the flow of data with security and social stability; ii) Describe and compare Digital Domain proposals’ normative foundations with special attention to human rights; iii) Describe the role of the U.N., ITU and other entities in shaping a new approach to the sovereignty-stakeholder dynamic; iv) Introduce the role of the UDHR; v) Propose links between the UDHR and SDGs to strengthen human rights through shared interests.

This paper is an analysis, in the field of policy studies, of a contested information policy principle, digital human rights. It is qualitative not quantitative. It relies primarily on documentary sources such as books and periodicals, and online sources such as documents, government reports, general and specialized periodicals, academic literature, websites, blogs and data bases. The paper is intended to advance the global discourse promoting digital human rights.

Encarnacion on Text and Law

Erik Encarnacion (The University of Texas School of Law) has posted Text is Not Law (Iowa Law Review, Vol. 107, No. 5, 2022) on SSRN.  Here is the abstract:

The Supreme Court’s landmark decision in Bostock v. Clayton County provides further fodder for debates about textualism, given the dueling opinions of Justices Gorsuch, Alito, and Kavanaugh, each of which purports to apply textualist reasoning correctly. But in a little-remarked-upon passage, Justice Gorsuch’s opinion casually conflates text and law, asserting, “[o]nly the words on the page constitute the law adopted by Congress and approved by the President.” In equating statutory text with law, Justice Gorsuch isn’t alone, following in the footsteps of other prominent textualists, including the late Justice Antonin Scalia and Judge Frank Easterbrook.

But text is not law—and cannot be. Conflating statutory text and law makes a category mistake. And not a harmless one. Nor is the conflation easily dismissed as an example of incautious rhetoric. The conflation fosters confusion about textualism and further muddles public understanding of appellate adjudication by propping up the myth that appellate judges should—and can—avoid making law. Conflating text and law also facilitates a type of literalist interpretation--indeed, opportunistic literalism--that defenders of textualism purport to reject.

Despite these problems, the casual conflation of text and law is likely here to stay, at least in part because it provides rhetorical advantages to textualist judges by allowing them to sidestep thorny controversies about linguistic meaning and the nature of law. This advantage suggests that textualist judges will continue to claim, falsely, that text is law.

Important and highly recommended.

Encarnacion is right that legal texts are not themselves "law" if by "law" we mean to refer to legal norms or legal content.  Texts are just texts, markings on paper or data stored in electronic form.  What textualists and originalists are concerned with is the meaning (more precisely, "communicative content") that is produced by the text.  But the meaning of a text is not the same thing as the legal norm that the text produces.  One way of saying this is associated with John Chipman Gray, who argued that statutes are "sources of law" and not law itself in The Nature and Sources of the Law, published in 1909.

Encarnacion's central thesis was anticipated in 2011 by the work of Mark Greenberg, especially in Mark Greenberg, The Standard Picture and Its Discontents, in 1 OXFORD STUDIES IN PHILOSOPHY OF LAW (Leslie Green & Brian Leiter eds., 2011), which is cited by Encarnacion in a footnote but not discussed in text.  What Greenberg calls the "standard picture" is the idea that the communicative content of legal texts provides the legal content of constitutional or statutory norms.  Greenberg observed that this is not necessarily the case, because the two can diverge.  Thus, the communicative content of the First Amendment seems to limit its effect to actions by "Congress" (referring to the Congress of the United States), but First Amendment doctrine applies to executive and judicial actions. It would be a category mistake to say that the legal content of constitutional doctrine is identical to the communicative content of the constitutional text.

Encarnacion believes that textualists and originalists conflate "text" and "law," or to put it more precisely they equate communicative content with legal content.  It is certainly true that judges and some scholars do seem to do this, saying things like "the constitutional text is law" or the "the law is the statutory text."  And some judges and scholars may have slipped into the category mistake that Encarnacion identifies.  On the other hand, I expect that many of the judges and scholars who express themselves in these imprecise ways would acknowledge the points made by Gray, Greenberg, and Encarnacion.  When the issue was called to their attention, they might say: "Of course, you are right.  When I said 'the constitutional text is law,' that was shorthand for 'the communicative content produced by the constitutional text is and ought to be the source of binding constitutional norms.'  I thought everyone knew that."

Academic textualists and originalists have long expressed the idea behind Encarnacion's central thesis by marking two distinctions.  The first of these is the interpretation-construction distinction, and the second is the distinction between communicative content and legal content.  These distinctions are discussed in The Interpretation-Construction Distinction (published in 2010) and Communicative Content and Legal Content (published in 2013). Deployment of the interpretation-construction distinction was a hallmark of the so-called "New Originalism," which traces back to the late 1990s and is found in the work of Keith Whittington and Randy Barnett.

The interpretation-construction distinction marks the conceptual difference between the communicative content of legal texts and the legal norms that such texts produce.  For example, constitutional interpretation discovers the communicative content of the constitutional text, whereas constitutional construction determines the legal content of constitutional doctrine, and the same distinction can be applied to statutory interpretation and construction.

Originalism is the view that constitutional construction ought to be constrained by the communicative content of the constitutional text.  Statutory textualism is the view that statutory construction ought to be constrained by the communicative content of statutory texts.  Formulated in this way, neither originalism nor textualism rests on the claim that "text is law," and neither theory commits a category mistake.  This has all been clear since the early 2010s--although some originalists and textualists may be unaware of these issues or fail to appreciate their conceptual importance.

Read Encarnacion but take his article with a grain of salt when it comes to its claims about textualism and originalism.

Bulman-Pozen & Seifter on the Role of State Courts

Jessica Bulman-Pozen  (Columbia University - Law School) & Miriam Seifter (University of Wisconsin Law School) have posted Countering the New Election Subversion: The Democracy Principle and the Role of State Courts (Wisconsin Law Review (forthcoming 2022)) on SSRN.  Here is the abstract:

Among the threats to American democracy, the most serious may also be the most banal: that future elections will be compromised by quiet changes to the law. State legislators across the country have passed bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have introduced new criminal offenses that undermine professional election administration. Power-shifting legislation, audits, and criminal penalties advertise their fealty to law, but they threaten the franchise and electoral integrity as well as nonpartisan, expert election administration. Because of their ostensibly legal, even legalistic, character, however, these forms of election subversion complicate ordinary judicial countermand. Federal courts, in particular, have foreclosed many of their own means of responding to such measures.

This essay, written for the University of Wisconsin Law School Symposium on Interpretation in the States, describes why state courts are well situated to counter the new election subversion. Building on our prior work exploring the democracy principle in state constitutions, we explain how the text, structure, and history of states’ foundational documents privilege popular sovereignty, majority rule, and political equality. After canvassing emerging threats to elections across the country, we then explain how state courts might apply the democracy principle to address the new election subversion.

Highly recommended.

Knoll & Mason on the Dormant Commerce Clause

Michael S. Knoll (University of Pennsylvania Carey Law School; University of Pennsylvania Wharton School -- Real Estate Department) & Ruth Mason (University of Virginia School of Law) have posted Bibb Balancing (George Washington Law Review, Vol. 91, No. 1, 2023) on SSRN.  Here is the abstract:

Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation and those of other states. We label analysis in mismatch cases “Bibb balancing,” after the famous mudflaps case, and we show that mismatch cases present the Court with a more challenging set of issues than do other types of dormant Commerce Clause cases. Despite the criticisms that attach to Bibb balancing, we recognize that failing to restrain regulatory mismatches would threaten the smooth functioning of the national marketplace and undercut important federalism values. Thus, in addition to clarifying the doctrine and acknowledging the drawbacks of Bibb balancing, this Article provides advice for achieving more consistent and defensible results in mismatch cases.

Highly recommended.

Mačák on International Human Rights Law & the Geneva Convention

Kubo Mačák (University of Exeter) has posted The Role of International Human Rights Law in the Interpretation of the Fourth Geneva Convention (Israel Yearbook on Human Rights, Vol. 52, 2022) on SSRN.  Here is the abstract:

This article examines the role of international human rights law (IHRL) in the interpretation of the Fourth Geneva Convention. At their core, both sets of rules are dedicated to protecting the inherent dignity of the human person. In addition, the adoption of the Fourth Convention in 1949 as well as the ongoing development of IHRL since the end of the Second World War both reflect the growing humanization of international law. In many ways, therefore, the said rules pull in the same direction and they reinforce each other in situations of parallel application.

Against that background, this article argues that the Fourth Geneva Convention, as an international treaty, must be interpreted in light of the entire framework of applicable international law, which includes IHRL. Reliance on the prescriptions of IHRL treaties, however, is contingent on their scope of application and ratification status. To the extent that this co-application reveals conflict between rules from the two regimes, this must be resolved by recourse to established principles of conflict resolution, including the principle of lex specialis, by which a more specific legal norm takes precedence over a more general one.

Building on these general considerations, the article then argues that the role of IHRL in the interpretation of the Fourth Convention differs based on the specific context governed by that Convention. It probably carries the greatest weight in a State’s own territory, as confirmed by the renvoi to all ‘provisions concerning aliens in time of peace’ found in Article 38 of the Convention. However, IHRL also provides important normative clarification and additional protection in situations of belligerent occupation and in detention contexts.

Schejter & Yemini on Digital Anonymity

Amit M. Schejter (Pennsylvania State University; Ben-Gurion University of the Negev) & Moran Yemini (Center for Cyber, Law and Policy, University of Haifa; Information Society Project, Yale Law School; Digital Life Initiative, Cornell Tech) have posted Hide and Seek the Truth? – Anonymity and Transparency in the Digital Age on SSRN.  Here is the abstract:

Conventional free speech theory and doctrine treats anonymity, the ability to disseminate information without disclosing one's identity, as crucial to the promotion of free speech, and to securing a viable system of free expression. Anonymity has been tied to speakers’ autonomy over the content of their speech, including how they present their identities to others; to the encouragement of expression in circumstances where individuals would not otherwise participate in public discussion for fear of being ridiculed, harassed, or retaliated against; and to the support valuable institutions such as whistle-blowing, voting, and political engagement. However, the rise of mediated interpersonal and “mass-personal” communications, which allow for anonymization of messaging at a mass scale have led to the abuse of anonymity. Anonymity has become in itself a shield from accountability in the commission of wrongs (e.g. cyber-bullying, harassment, defamation), and perhaps most importantly – undermines the very rationales of a principle of free speech, such as the quest for truth and the promotion of collective self-government. We believe this requires taking a closer look at the value of anonymity, and its relation to a principle of free speech in the age of digital technologies. In this study, we encounter the advantages and disadvantages of anonymity in the era of mediated social networking. We present the arguments that had created such constructs as journalist source privileges and closed-door court sessions and the justification for those constructs in the traditional media field. We then demonstrate how the rise in electronic communications in general and social-networking in particular have allowed anonymity to become a tool of disinformation, which is often malicious. Building upon the theory of "media transparency," which we developed in the early days of the contemporary internet-based media environment we present the case for a nuanced approach to anonymity that takes into account both the need to uncover social ills and the obligation to engage in responsible social discourse.

Tatum on Dissolution of Cities

James Tatum (Eastern Michigan University) has posted Cities, Economic Distress, and Dissolution (15 Albany Government Law Review 186) on SSRN.  Here is the abstract:

Should this or that city exist? Such existential questions do not often arise in matters of public administration, but perhaps they should. This Article focuses on municipal disincorporation (or dissolution) and consolidation. The Article discusses what it takes to disappear a city and offers a theoretical framework for when dissolution and consolidation should be considered as a response to municipal insolvency.

Redish & Hiltner on an Adversary Democratic Model of Due Process

Martin H. Redish (Northwestern University - Pritzker School of Law) & Victor Hiltner have posted Adversary Democratic Due Process on SSRN.  Here is the abstract:

Legal minds have long quarreled over the true meaning of the Due Process Clauses of the Fifth and Fourteenth Amendment, but little consensus has emerged as to their scope and application. Despite the doctrinal significance and ubiquity of due process, troublingly little attention has been devoted to the underlying premises or “DNA” of this fundamental constitutional right. Consequently, litigants’ claims to adjudicatory procedures have been consistently undervalued on the myopic utilitarian scale of costs and benefits that has imposed a chokehold on current doctrine, and no viable alternative approach has emerged to take its place. This Article seeks to fill that intellectual void and provide a superior model of procedural due process, one that grounds it in the democratic theory inherent to American constitutionalism—what we call “liberal adversary democracy.” Liberal adversary democracy is an outgrowth of the Framers’ belief that, in the face of an increasingly divisive and diverse polity, defensively invoking conflict, mistrust of others, and fear of unchecked power is the best (if not the only) way to safeguard liberal values of individual development, growth, and dignity. Procedural due process, this Article will demonstrate, is a product of liberal adversary democracy, providing one of the most foundational defensive guarantees that both protects individual liberty and legitimizes democracy itself. To serve its democratic function, procedural due process must be imbued with the protective skepticism of liberal adversary democracy. This adversary democratic model of due process would revolutionize the presently under-protective due process jurisprudence of today and provide clear normative guidance for all future procedural due process inquiries.

Nelson & Schwartzman on Second Order Decisions & Rights Conflicts

James David Nelson (University of Houston Law Center) & Micah Schwartzman (University of Virginia School of Law) have posted Second Order Decisions in Rights Conflicts on SSRN.  Here is the abstract:

How should judges decide hard cases involving rights conflicts? Standard debates about this question are usually framed in jurisprudential terms. Legal positivists and critical legal theorists claim that the law “runs out” or is incomplete, requiring judges to exercise discretion, while some anti-positivists argue that the law always provides a right answer. Recently, however, some legal scholars have attempted to side-step these responses by arguing that, if (or when) there are hard cases, judges should adopt second-order decision procedures to adjudicate them. Drawing on the idea of “least cost avoidance,” familiar from tort law, a leading proposal recommends that judges apply a conflict-avoidance principle, which holds that courts should decide against the party that, ex ante, could most easily have avoided a conflict over its rights. After distinguishing various ways in which the law can be incomplete, we rehearse the case for conflict avoidance. We then argue that even in instances of legal indeterminacy or epistemic uncertainty — when the law provides no first-order reasons for selecting one outcome over another — there are several grounds for rejecting this approach to constitutional adjudication. First, despite its novelty and prima facie appeal, conflict avoidance is based on a mistaken analogy to accidents, which underestimates the epistemic and moral benefits of deciding hard cases. Second, conflict avoidance privileges private ordering over democratic decision-making, in ways that risk entrenchment of social hierarchies and trivialization of expressive or deontic rights. Third, the case for conflict avoidance fails to account for alternative second-order decision procedures and the normative justifications for them. Lastly, we caution that the use of hypothetical examples and toy cases can mislead by suggesting that indeterminacy is pervasive in the legal system. But many purportedly “hard” cases may turn out to involve reasonable disagreements, rather than more intractable forms of legal incompleteness. In those cases, judges may be able to decide based on first-order reasons. Indeed, facing the prospect of applying second-order procedures may lead judges to conclude that law and morality do, after all, provide the right answers.

Khan on Constitutional Design in Pakistant

Maryam S. Khan (University of Wisconsin Law School) has posted Experiments in Constitutional Design: East-West Symbiosis in United Pakistan on SSRN.  Here is the abstract:

In this paper, I attempt to recover, in some measure, the complex history of the relations between the 'two wings' of Pakistan in its first decade of independence. I argue that the politics of this era, driven by the objective of maximizing political representation at the center, was marked by a deep interlocking of the East and West regions of the country. In many ways, this was in direct contrast to the late 1960s, when the political cords between the two regions snapped after a steady deterioration of inter-wing relations under a military dictatorship. The ensuing autonomy politics of the late 1960s, which found a powerful vent in the first general election of 1970, and the subsequent attempt by the victorious Awami League in the East to shrink the center, turned the integrationist politics of the 1950s on its head. This is the hindsight temporality through which I approach the subject of the first decade of united Pakistan, because although my analytical focus remains on the 1950s, my larger purpose lies in provoking a critical reassessment of the linear trajectory of Bengali nationalism that has come to define the story of the making of Bangladesh. In order to appreciate the cross-wing dynamic of the first decade of united Pakistan, I use the lens of the constitutional contestation over the shape of the Pakistani federation, with a specific focus on the 'One Unit'. The One Unit was a constitutional plan to merge together provinces and states in the West wing in the 1950s. Contrary to common assumptions about the merger being a purely internal matter for the West, the One Unit was motivated by a broader reconfiguration of center-province as well as East-West relations. Indeed, no single issue in the making of the federation better illustrates the cross-cutting cleavages between East and West than the politics leading up to and culminating in the creation of the One Unit, as well as the East-West bridges that the widespread opposition against the One Unit inspired. I argue that this empirical experience of the politics of constitution-making around the One Unit demonstrates the ruptures within both the East and the West on salient issues of constitutional design, but also the many alliances and bridges that emerged across the regional East-West binary on the basis of shared goals, strategic coalitions, and political leveraging.

Sandefur on State Constitution Gift Clauses

Timothy Sandefur (Goldwater Institute) has posted The Arizona Gift Clause on SSRN.  Here is the abstract:

Forty five state constitutions contain provisions barring the government from giving or lending public resources to private interests. These "Gift Clauses" are a legacy of the nineteenth century, when many state and local governments were plunged into economic and political catastrophe as a result of subsidizing private industry. Over time, these provisions have taken a variety of different paths in the legal precedent. In some states, courts have essentially eviscerated them by adopting a lackluster “rational basis” standard that deprives the Gift Clause of its effect. But in other states—notably Arizona—courts have diligently enforced these provisions, establishing precedent that lets government spend money for the public good, but prevents it from transferring taxpayer money to private interests. This article examines the Arizona Constitution’s Gift Clause, from its origins to the present day, and compares it with similar clauses in other state constitutions. Part I describes the philosophical issues that underlie Gift Clauses. Parts II and IIII examine the first and second waves of constitutional reform that led to the adoption of Gift Clauses. Part IV examines the origins of Arizona's Gift Clause specifically. Part V examines the current state of Gift Clause jurisprudence in Arizona.

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