Legal Theory Blog

Spencer on Personal Jurisdiction Over Absent Class Members

A. Benjamin Spencer (Harvard Law School) has posted Out of the Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained on SSRN.  Here is the abstract:

Since the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future, as multiple circuit courts have heard appeals from district courts that have reached varying conclusions on this point.

To provide guidance both to the circuit courts facing this issue, as well as to the Supreme Court once it is squarely presented with the question, this Essay provides the proper analysis that courts should employ respecting the ability of federal courts to adjudicate the claims of absent class members. To wit: A federal court’s authority to render a binding judgment against a defendant is currently constrained — by rule — to be coterminous with that of the courts of general jurisdiction in the fora in which they are located. Such constraints — which emanate from the Due Process Clause of the Fourteenth Amendment — mandate that the claims of absent members of a certified class must either arise out of or be related to the defendant’s contacts with the forum, or be brought in a forum in which the defendant could be subjected to general jurisdiction. Prior to class certification, the claims of absent class members are not properly before the court and thus are not subject to dismissal; however, in anticipation of the requirement that only those class members whose claims can satisfy applicable Fourteenth Amendment standards may properly be included within the definition of the class that is certified, a district court may strike from the complaint the allegations pertaining to the claims of absent class members who will be unable to meet these standards in response to a motion to strike. In lieu of that approach, defendants may opt to urge the district court to limit the definition of the class certified to the claims of absentees that meet Fourteenth Amendment constraints; to the extent the court certifies a class that includes the claims of absent class members that do not meet these constraints, the defendant may appeal the certification decision on that ground.

Charles & Fuentes-Rohwer on Law & Democracy in Rucho v. Common Cause

Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer (Duke University School of Law and Indiana University Maurer School of Law) have posted Dirty Thinking about Law & Democracy in Rucho v. Common Cause on SSRN.  Here is the abstract:

This Essay, a precursor to a larger project, uses Rucho v. Common Cause, to argue that there are two different normative conception of politics in the Court's law and politics jurisprudence. For the conservative Justices on the Court, politics is sordid, partisan, and unfair. Law and politics cases, specifically political-gerrymandering claims, ask the Court to perform a task that courts are ill-equipped to perform, which is to clean up a process that is inherently dirty and to make fair a process that is inherently partial. Rucho, representing the Court's law and politics cases more broadly, is both an affirmation of a traditional conception of politics and also a rejection of a more modern conception that is beginning to find a foothold in American politics — with roots in the Court’s malapportionment jurisprudence — about how representative democratic institutions ought to operate.

This more modern approach reflects the beliefs that representative electoral structures and American politics more generally ought to include some basic notion of fairness; a commitment to the public good without the hindrance of partisanship; and a conception of fair play that constrains the behavior of those who design electoral structures. In contrast to the majority in Rucho, proponents of the modern conception envision a role for the Court in enforcing basic rules of fairness and fair play while at the same time indirectly promoting a particular vision of the public good that is not filtered through partisan identity in the design of structures of representation.

In order to understand the division in Rucho, why the plaintiffs in Rucho failed to win over the conservatives on the Court, and the Court's law and politics cases more broadly, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist — outside of race and the equal-population principle — that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? This essay explores those issues.

Highly recommended.

Flanders on "The Rule of Law in the Real World" by Gowder

Chad Flanders (Saint Louis University - School of Law) has posted Keeping the Rule of Law Simple: Comments on Gowder, the Rule of Law in the Real World (Saint Louis University Law Journal, vol. 62, no. 313, 2018) on SSRN.  Here is the abstract:

Let me start by just stating my experience of reading The Rule of Law in the Real World because it will help make sense of the structure of my remarks. The first third of the book: I am utterly convinced, even blown away, by the elegance and persuasiveness of the argument and the analysis; even when there is merely a summary, I am helped and bettered by it. The second third of the book: I am inclined, based on the enormous goodwill generated by the first third of the book to accept-almost uncritically-the historical discussion and the conclusions drawn from it. The third part of the book: This is not written for me, probably right, probably very useful, but less interesting to me. The conclusion of the book: Back to being utterly convinced, even blown away, by the elegance and persuasiveness of the argument. But it is with the conclusion of the book that I start getting doubts-and start seeing the outlines of my criticisms of the book. Does what Paul says in the conclusion follow from what he said earlier in the book, especially in the first part-the part I so completely agreed with? In a sentence, I worry that the conclusion runs further ahead than the normative framework Paul has laid out can take him.

My Comment has four parts. In the first Part, I raise a general question about the nature of the rule of law. Is it an essential part of the rule of law that it be simple? And do we, therefore, have reason to resist-to even suspect-accounts of the rule of law that are too complex? I tentatively conclude that there really is something to the idea that the rule of law should be simple, which reveals something important about it as a concept. In the second Part, I try to flesh out my worries that Paul's arguments in the conclusion of his book may not be something he can get without sneaking in additional principles other than the rule of law. I want to be able to attack the things he attacks using the tools he uses, but I am not sure we can; I also wonder how much of a loss it is if we cannot. In the third and fourth Parts, I move outside of Paul's book, to maybe suggest two different things he could have concluded on (and I wish he had, and hope he will address): incarceration and immigration.

Recommended.  And here is a link to The Rule of Law in the Real World.

Legal Theory Lexicon: Concepts and Conceptions

Introduction

Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.

This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory.
 

Essentially Contested Concepts

So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher Walter Bryce Gallie in 1956.  Gallie was dealing with a problem in the philosophy of language.  People don't seem to agree on the criteria for application of words like "justice," "right" or "good."  We might think that disagreement reflects ambiguity (such words have different senses).  In that case, disagreements about justice would be pseudo-disagreements.  Gallie thought that explanation was incorrect, and came up with a theory that would preserve our intuition that when people disagree about the nature of justice, there disagreement is real and genuine--not merely linguistic confusion.

The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues.

Back to "good."

But in the case of "good," we seem to be using the same concept. I think that the good really ishuman flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept.

So when Gallie claimed that some concepts were essentially contested, his idea was that we might never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application.

Two Uses of the Concept/Conception Distinction

Rawls on the Concept and Conceptions of Justice

Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.

Dworkin on Concepts and Conceptions in Legal Reasoning

Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts.

Conclusion

The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work.

References

• Ronald Dworkin, Law's Empire  (Harvard University Press 1988).
• W. B. Gallie, " Essentially Contested Concepts," 56 Proceedings of the Aristotelian Society167 (1956).
• John Rawls, A Theory of Justice: Original Edition  (Cambridge: Harvard University Press, 2001).
• Jeremy Waldron, "Is the Rule of Law an Essentially Contested Concept (in Florida)?", Law and Philosophy, Vol.21, No.2, (March 2002), pp.137-164.
• Maite Ezcurdia, The Concept-Conception Distinction, 9 Philosophical Issues 187-192 (1998).

Internet Resources

• Eric Margolis & Stephen Laurence, Concepts, Stanford Encyclopedia of Philosophy (2011).
• Essentially Contested Concepts, Wikipedia.

(This entry was last revised on October 13, 2019.)

Legal Theory Bookworm: "A Theory of Legal Personhood" by Kurki

The Legal Theory Bookworm recommends A Theory of Legal Personhood by Visa AJ Kurki.  Here is a description:

Who, or what, is a 'person' according to the law? How did this understanding of personhood come about? In the twenty-first century, environmentalism, animal rights, artificial intelligence, and corporate personhood have compelled us to consider these questions once again. Legal personhood is a foundational concept of Western legal thought and A Theory of Legal Personhood seeks to go beyond contemporary debates, challenging our very understanding of legal personhood itself.

Drawing on extensive research, scholarship, legislation, and court cases from around the globe, this book offers readers -- with or without previous knowledge -- new insights into legal personhood. It scrutinizes how personhood came to be understood synonymously with the holding of legal rights. It then posits that a better understanding of legal personhood is as a cluster property. Finally, it applies this new theory to explain and structure the numerous debates surrounding legal personhood.

And from the reviews:

"This book has arrived at a most opportune time. As courts and legislatures around the world are discussing the concept of 'legal personhood' in relation to entities such as the natural environment, nonhuman animals, artificial intelligence and human foetuses, there is urgent need for clarity on what the concept means. Dr Kurki's book offers the most comprehensive analysis of this subject in a decade. Orthodoxies are critiqued, a new account of personhood is propounded and its practical implications are explored in a rigorous yet accessible manner. Essential reading for scholars and lawyers alike who have an interest in the topic." - Dr Joe Wills, University of Leicester

Download of the Week: "A Computational Analysis of Oral Argument in the Supreme Court" by Dickinson

The Download of the Week is A Computational Analysis of Oral Argument in the Supreme Court by Gregory M. Dickinson.  Here is the abstract:

As the most public component of the Supreme Court’s decision-making process, oral argument receives an out-sized share of attention in the popular media. Despite its prominence, however, the basic function and operation of oral argument as an institution remains poorly understood, as political scientists and legal scholars continue to debate even the most fundamental questions about its role.

Past study of oral argument has tended to focus on discrete, quantifiable attributes of oral argument, such as the number of questions asked to each advocate, the party of the Justices’ appointing president, or the ideological implications of the case on appeal. Such studies allow broad generalizations about oral argument and judicial decision making: Justices tend to vote in accordance with their ideological preferences, and they tend to ask more questions when they are skeptical of a party’s position. But they tell us little about the actual goings on at oral argument—the running dialog between Justice and advocate that is the heart of the institution.

This Article fills that void, using machine learning techniques to, for the first time, construct predictive models of judicial decision making based not on oral argument’s superficial features or on factors external to oral argument, such as where the case falls on a liberal-conservative spectrum, but on the actual content of the oral argument itself—the Justices’ questions to each side. The resultant models offer an important new window into aspects of oral argument that have long resisted empirical study, including the Justices’ individual questioning styles, how each expresses skepticism, and which of the Justices’ questions are most central to oral argument dialog.

Highly recommended.  Download it while it's hot!

Enoch & Spectre on "Safety vs. Sensitivity" by Pardo

David Enoch (Hebrew University - The Philosophy Department and the Law School) & Levi Spectre (Open University of Israel) have posted Sensitivity, Safety, and the Law: A Reply to Pardo (Legal Theory, 2019) on SSRN.  Here is the abstract:

In his recent “Safety vs. Sensitivity”, Michael Pardo argues that Sensitivity in fact plays no role in guiding or explaining legal doctrine, nor should it. En route to this conclusion, he also criticizes our attempt (in previous work) to utilize Sensitivity in order to shed light on the problem of statistical evidence.

This paper is, to a considerable extent, a reply to Pardo. But it is, we hope, also of wider interest. Pardo’s discussion serves also as a good opportunity to revisit issues at the intersection of law and epistemology, both in specific terms (like the legal role, if any, of Sensitivity and Safety, or what to say of statistical evidence), and more generally (about how, if at all, legal theory should incorporate epistemological discussions). We happily take advantage of this opportunity, then, offering both specific critiques of and replies to Pardo’s discussion, and more general points that are of interest also independently of our exchange.

Highly recommended, as is Pardo's article (the link is provided above in the abstract).

Sjåfjell on Theories of the Firm & Sustainability

Beate Sjåfjell (University of Oslo - Faculty of Law) has posted Theories of the Firm: What They are Good For and What They are Really Bad At on SSRN.  Here is the abstract:

In spite of the growing awareness of the unsustainability of business as usual, discussion has tended to concentrate on the theme of corporate social responsibility (CSR) or more modern variations of that concept, drawing on stakeholder theoretical contributions juxtaposed to shareholder (primacy) theories. This paper takes a different approach, interrogating the theoretical roots of corporate governance and its influence on corporate law debates, identifying two fundamental flaws: significant theories have not kept up with the development of real-life business, and these still dominant theories present significant barriers to securing the contribution of business to sustainability.

Throughout the history of the corporation, we have very broadly speaking had two significant streams of theories: economic theories of the firm, which have tended to be concentrated on the corporation, and legal theories of the corporation. Influence has shifted, and although there is not a clear-cut distinction between economic and legal theories, we can determine that the economic theories have gained dominance since the 1970s and still have a pervasive influence. This paper accordingly concentrates on the economic theories, and canvasses and analyses the most influential of these theories.

Throughout the analysis, the two main and interlinked questions of the paper are firstly, to what extent does the theory explain the corporation? Secondly, to what extent is the theory useful in understanding the relationship between the corporation and society, including whether, to what extent and how the corporation should be regulated?

After the introduction, Section 2 sets out the backdrop for the analysis: what the corporation is today, i.e. its role in the complex and opaque systems of business, and the significance of the corporation for humanity’s possibility of meeting the grand challenge of our time, of securing the social foundation for humanity now and in the future within planetary boundaries.

Section 3 begins with a brief overview of the dominant theories underpinning corporate governance (with knock-on effects also on the basis for policy-making in corporate and securities law), before turning to the analysis. While recognizing the contribution of the selected theories to understanding some aspects of business and finance, the section identifies problematic aspects of these theories. The analysis concentrates on the mainstream version of principal-agent theory as a case in point, based on the interconnection of agency theory with other influential theories.

Section 4 summarises and concludes with reflections on the elements that a more comprehensive and systemic, and thereby more adequate, theory should encompass.

Janeček & Malgieri on Commerce in Data & Limited Alienability

Václav Janeček (University of Oxford - Faculty of Law) & Gianclaudio Malgieri (Vrije Universiteit Brussel (VUB), Faculty of Law) have posted Commerce in Data and the Dynamically Limited Alienability Rule ((2020) 21 German Law Journal (Forthcoming)) on SSRN.  Here is the abstract:

Commerce in some data is, and should be, limited by the law because some data embody values and interests (in particular, human dignity) that may be detrimentally affected by trade. In this article, drawing on the Roman law principles regarding res extra commercium, we investigate the example of personal data as regulated under the EU Charter and the GDPR. We observe that transactions in personal data are not forbidden but subject to what we call a dynamically limited alienability rule. This rule is based on two dynamic variables: the nature of data and the legal basis for commercially trading such data (at primary or secondary level). Accordingly, in order to deal with such dynamism and the uncertainty it poses, we propose a general two-stage reasonableness test that should help legal practitioners, judges and law-makers in considering when trade in data is illicit and who (if anyone) shall be held responsible for this mischief. Finally, we show how the two-stage test and the limited alienability rule can advance European contract law and help enforce legal principles associated with such data extra commercium in automated and autonomous data trading systems.

Glovin on Climate Policy & Legal Challenges to Low Density Zoning

Grant Glovin (Harvard Law School) has posted A Mount Laurel for Climate Change? The Judicial Role in Reducing Greenhouse Gas Emissions from Land Use and Transportation (Environmental Law Reporter, Vol. 49, No. 10938, 2019) on SSRN.  Here is the abstract:

Greenhouse gas emissions from transportation in the United States have remained persistently high. One cause is common low-density land use patterns that make most Americans dependent on automobiles. Reducing these emissions requires increasing density, which U.S. local government law makes difficult to achieve through the political process. Mount Laurel, a 1975 New Jersey Supreme Court case that addressed an affordable housing crisis by restraining local parochialism, provides a potential solution. Environmental advocates may be able to mount similar state-law challenges against low-density zoning based on the high carbon emissions it produces. Such a challenge is legally and normatively defensible in New Jersey and other states.

Dabner on the EU Emissions Trading Scheme

Justin Dabner (James Cook University - Cairns Campus) has posted The Rehabilitation Of The European Union’s Emissions Trading Scheme: Should Australia Go There Again? on SSRN.  Here is the abstract:

In 2005 the EU’s ETS became the first mandatory scheme to be implemented. The 2012 Australian ETS was based on the EU precedent and the plan, before the Australian ETS was repealed, had been to link the two regimes. The EU scheme suffered a serious setback early on when the market price for EU units collapsed below that considered necessary to motivate the intended emission reductions. During the last decade the EU’s institutions have struggled to settle upon solutions to rehabilitate the ETS but, eventually, during 2018, signs of a sustained price increase appeared. For Australia, and other jurisdictions, the EU experience illustrates some pitfalls to avoid when establishing an ETS and provides lessons for ETS design.

Sassman on Circuit Splits & the Law-of-the-Circuit Rule

Wyatt Sassman (University of Denver, Sturm College of Law) has posted How Circuits Can Fix Their Splits (Marquette Law Review, Vol. 103, 2019, Forthcoming) on SSRN.  Here is the abstract:

Many assume that the best way to reform the federal courts is to reform the Supreme Court, offering dramatic proposals like modern-day calls for court packing. Attempts to address the problems caused by conflicts between the regional circuits of the federal courts of appeals, commonly known as “circuit splits,” have been no different. The desire to avoid circuit splits has had an immense influence on the structure and operation of the federal appellate courts for roughly a century, resulting in the Supreme Court having primary responsibility for resolving these conflicts. Yet as overall federal caseloads have increased, reliance on the Supreme Court alone to resolve conflicts has imposed serious and well-recognized burdens on the operation of the federal courts. For decades scholars have debated bold proposals to address these problems, such as creating a new national court dedicated to resolving conflicts or fundamentally restructuring the Supreme Court. This Article offers a straightforward yet transformational proposal overlooked in these debates: let the courts of appeals resolve their conflicts on their own.

This Article argues that the federal courts of appeals should resolve circuit splits on their own, rather than rely on the Supreme Court, and lays out how they could do so. A judge-made doctrine known as the “law of the circuit” prohibits a later panel of a court of appeals from revisiting an earlier panel’s decision, even when the earlier decision has resulted in a conflict with another circuit. Because practically all work in the courts of appeals is done by three-judge panels, the law of the circuit doctrine has the effect of locking conflicts in place — the first circuit to address an issue cannot confront the reasons that motivated a latter circuit to come to a different conclusion. Instead, every circuit gets one chance to weigh in and, as a practical matter, no circuit can ever resolve the conflict.

I therefore propose relaxing the law of the circuit doctrine when a circuit’s prior decision has resulted in a conflict with another circuit. This proposal is narrowly tailored, identifying tools already in use in some courts of appeals that would allow them to relax the doctrine and revisit a prior decision, but only where that prior decision has subsequently resulted in a conflict with another circuit. This creates the opportunity to address the conflict without Supreme Court intervention while maintaining the existing doctrine’s benefits in the vast majority of the court of appeals’ cases. Yet the proposal is also transformational, fundamentally changing the relationship between the federal appellate courts by empowering the courts of appeals to engage in dialogue with each other and reducing reliance on the Supreme Court. This Article therefore offers a realistic proposal for achieving important structural and institutional improvements in the federal courts at a lower cost and with less disruption than existing proposals.

Recommended.

Diamantis on Algorithmic Corporate Misconduct

Mihailis Diamantis (University of Iowa - College of Law) has posted The Problem of Algorithmic Corporate Misconduct on SSRN.  Here is the abstract:

Technology will soon force broad changes in how we conceive of corporate liability. The law’s doctrines for evaluating corporate misconduct date from a time when human beings ran corporations. As corporate operations become increasingly automated, algorithms will come to replace employees as the leading cause of corporate harm. Rooted in an antiquated paradigm, the law presently identifies corporate misconduct with employee misconduct. If it continues to do so, the inevitable march of technological progress will increasingly immunize corporations from most civil and criminal liability.

Book Announcement: Theorising Labour Law in a Changing World, edited by Blackham, Kullmann, & Zbyszewska

Hart Publishing has the following announcement:

Theorising Labour Law in a Changing World: Towards Inclusive Labour Law, Edited by Alysia Blackham, Miriam Kullmann, and Ania Zbyszewska

This collection brings together perspectives from industrial relations, political economy, political theory, labour history, sociology, gender studies and regulatory theory to build a more inclusive theory of labour law. That is, a theory of labour law that is more inclusive of non-traditional workers (including those in atypical work, or from non-traditional backgrounds); more inclusive of a variety of collective approaches to work regulation that foster solidarity between workers; and more inclusive of interdisciplinary and complex explanations of labour law and its regulatory spaces. The individual chapters speak to this theme of inclusivity in different ways and offer different suggestions for how it might be achieved. They break down the barriers between legal research and other fields, to promote fruitful and integrative conversations across disciplines. In the spirit of inclusivity and intergenerational dialogue, the book blends contributions from early career and emerging scholars with those from leading scholars in the field, featuring critical commentary from senior labour law figures alongside theoretically and empirically informed work.

Alysia Blackham is Associate Blackham at Melbourne Law School, University of Melbourne.

Miriam Kullmann is Assistant Professor at the Department of Private Law, WU Vienna University of Economics and Business.

Ania Zbyszewska is Assistant Professor in Law and Work, Department of Law and Legal Studies, Carleton University.

September 2019   |   9781509921553   |   304pp   |   Hardback   |    RSP: £65  

Discount Price: £52

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

Alexander on the Principle of Alternative Possible Reasons

Larry Alexander (University of San Diego School of Law) has posted The Most Persuasive Frankfurt Example, and What It Shows: Or Why Determinism Is not the Greatest Threat to Moral Responsibility on SSRN.  Here is the abstract:

In this paper I argue that even if the Principle of Alternative Possibilities (PAP) is satisfied, moral responsibility is more seriously threatened if the Principle of Alternative Possible Reasons (PAPR) is not satisfied. Nor, I argue, is it clear how it could be satisfied. Finally, I suggest that not only moral responsibility, but also normativity itself, is threatened by the failure to satisfy PAPR.

And from the paper:

The problem is that even if somehow our choices are free in whatever sense a libertarian demands, those choices cannot be morally assessable apart from the reasons on which those choices are based. And that means that we must have ultimate direct control over how the reasons and their weights appear to us, control at the moment of choice. If the reasons for ~X that present themselves to Al at the moment of choice appear stronger to him than the reasons for X, then is Al morally responsible for choosing ~X even if he was otherwise free to choose X? If he had chosen X, he would have chosen against what appeared to him to be the stronger reasons, which would have made his choice an irrational one.

So it seems that for Al to be morally responsible for choosing ~X, he must have been able to see that the reasons favored X at the very same time he perceived them to favor ~X. Determinism and indeterminism are beside the point because although determinism guarantees that this condition will not be satisfied, indeterminism will not satisfy it either.

Highly recommended!  Download it while it's hot, even if the reasons for doing so are beyond your control.

Ranchordas & van 't Schip on Future-Proofing Legislation

Sofia Ranchordas (University of Groningen, Faculty of Law) & Mattis van 't Schip (University of Groningen - Faculty of Law) have posted 'Future-Proofing Legislation for the Digital Age' (S. Ranchordas and Y. Roznai (Eds), Time, Law, and Change (Hart, 2020, Forthcoming)) on SSRN.  Here is the abstract:

For the past decades, scholars from varied scientific fields have insisted on the need to develop ‘future-proof solutions’. Future proofing science, design, architecture, and technology entails the creation of solutions that are forward-looking, sustainable, resilient, and can adapt to complex challenges. In the last years, lawmakers have also become intrigued by the question whether laws and policies could also be future-proof. This question has become particularly relevant considering the rapid changes that characterize the digital age. The implementation of a future-proof approach to legislation has nonetheless remained overlooked in the legal literature. This paper aims to fill this gap with an interdisciplinary analysis of future proofing and a discussion of the challenges of implementing this approach to lawmaking. We contend that future proofing law is a challenging task for legislators but a cautious forward-looking approach could ensure that legislation becomes more adaptable and flexible to innovation. Drawing on the interdisciplinary literature on future proofing, we suggest the broader employment of experimental legislation and regulatory impact assessments.

Patti on Personalization of Contract Law

Francesco Paolo Patti (Bocchoni University - Department of Law) has posted Personalization of the Law and Unfair Terms in Consumer Contracts on SSRN.  Here is the abstract:

Unfair terms law as an area of consumer contract law becomes more and more important and, within the European context, new forms of enforcement are discussed in order to augment the level of effectiveness of consumer protection. Personalization of the law could have a significant impact on the way in which the unfairness control of clauses may be exercised by Courts and Authorities and augment its efficiency. In fact, at least in the European context, default rules are the main basis used to assess whether a term is unfair. Therefore, the paper investigates if a ‘personalization of the law’ or the creation of ‘microdirectives’ could have an impact in the way in which problems related to standard form contracts and consumer protection are tackled.

Lemmens on Implementation of a Right to Physician Aid in Dying

Trudo Lemmens (University of Toronto - Faculty of Law) has posted When a Theoretical Commitment to Broad Physician-Aid-In-Dying Faces the Reality of Its Implementation ((2019) 19(10) American Journal of Biioethics 65-68) on SSRN.  Here is the abstract:

Brent Kious and Margaret Battin argue that since relief of intolerable suffering constitutes the dominant justification for physician-assisted-dying (PAD) laws, we should give access to patients who suffer intolerably from mental illness. As others, they reject ‘terminal illness’ as a legitimate access restriction. They recognize, though, that a key challenge is to determine “what degree of suffering is enough to justify death”. Yet they fail to see how the experience in the very few jurisdictions that rely on unbearable suffering as a key threshold for access reveals the dangers of not treating PAD as a truly exceptional procedure that should not move beyond the context of end-of-life care. They fail to see this because (1) they gloss over and fail to give due weight to a longstanding human rights tradition respecting the intrinsic value of human life; and (2) do not appreciate how fraught the application of the concept of ‘unbearable suffering’ really is as a matter of policy and practice.In this paper, I discuss these two issues, briefly expanding on what we can learn from the very few jurisdictions that have implemented broad access to PAD. Rather than promoting broader access to PAD on the basis of a theoretical commitment, we should take the compounding impact of organizing a PAD regime around the concept of unbearable suffering much more seriously.

Dickinson on Computational Analysis of Supreme Court Oral Arguments

Gregory M. Dickinson (Stanford Law School) has posted A Computational Analysis of Oral Argument in the Supreme Court (Cornell Journal of Law and Public Policy, Vol. 28, No. 3, 2019) on SSRN.  Here is the abstract:

As the most public component of the Supreme Court’s decision-making process, oral argument receives an out-sized share of attention in the popular media. Despite its prominence, however, the basic function and operation of oral argument as an institution remains poorly understood, as political scientists and legal scholars continue to debate even the most fundamental questions about its role.

Past study of oral argument has tended to focus on discrete, quantifiable attributes of oral argument, such as the number of questions asked to each advocate, the party of the Justices’ appointing president, or the ideological implications of the case on appeal. Such studies allow broad generalizations about oral argument and judicial decision making: Justices tend to vote in accordance with their ideological preferences, and they tend to ask more questions when they are skeptical of a party’s position. But they tell us little about the actual goings on at oral argument—the running dialog between Justice and advocate that is the heart of the institution.

This Article fills that void, using machine learning techniques to, for the first time, construct predictive models of judicial decision making based not on oral argument’s superficial features or on factors external to oral argument, such as where the case falls on a liberal-conservative spectrum, but on the actual content of the oral argument itself—the Justices’ questions to each side. The resultant models offer an important new window into aspects of oral argument that have long resisted empirical study, including the Justices’ individual questioning styles, how each expresses skepticism, and which of the Justices’ questions are most central to oral argument dialog.

Highly recommended.  Download it while it's hot!

Greasley on Abortion, Feminism, & Moral Philosophy

Kate Greasley (University of Oxford, Faculty of Law) has posted Abortion, Feminism, and 'Traditional' Moral Philosophy (Forthcoming in de Campos, Herring, and Philips eds. Philosophical Foundations of Medical Law (OUP, 2019)) on SSRN.  Here is the abstract:

Feminist approaches to the ethics of abortion have in places been quite critical of the methodology employed by mainstream philosophical treatments of the abortion problem. In particular, they impugn the latter’s reliance on abstract theorising and general principles, advising that only a focus on the particular and concrete details of real-life ethical problems such as abortion can direct us toward the moral truth of the matter. This article attempts to defend so-called traditional abortion ethics from such criticisms. More fully, it sets out to explain and vindicate the aim of mainstream abortion ethics to discern and apply more general moral principles to the particular case of abortion, as well as the centrality of foetal moral status to many of those accounts. It also works toward showing that mainstream and feminist ethical treatments of abortion are more aligned in both their methods and their claims than might first appear.

Rizzi & Vicente on Defectiveness & Causation in Vaccine Liability Cases

Marco Rizzi (The University of Western Australia Law School) & Lécia Vicente (Louisiana State University, Baton Rouge - LSU Paul M. Hebert Law Center) have posted Defectiveness and Causation in Vaccine Liability Cases – the Jurisprudence of the Supreme Court of the United States and the Court of Justice of the European Union (Lucila de Almeida, Marta Cantero Gamito, Mateja Durovic and Kai Purnhagen (eds.) The Transformation of Economic Law – Essays in Honour of Hans-W. Micklitz (Hart Publishing, 2019)) on SSRN.  Here is the abstract:

The reflection we undertake is two-pronged. We analyse the policy arguments put forth in crucial decisions by the European and American highest courts to sanction vaccine-related injuries. In parallel, we investigate the place and role of scientific evidence in the legal framework disciplining liability of vaccine manufacturers. In doing so, we will identify convergence and discrepancies in respect to policy, regulatory and legal approaches in Europe and the United States. Admittedly, this analysis is limited to EU and US federal laws, regulations, and case law. We acknowledge that internal divergences exist (between States in the US and Member States in the EU), and these will be referred to when appropriate, but the focus is on the overarching approach that the two principal markets adopt in the face of alleged vaccine-related injuries.

There are two fundamental questions for us to consider. The first is whether the SCOTUS's jurisprudence is excessively rigid in an ambit characterised by rapid scientific developments and discoveries that should warrant more open-textured readings of legislative texts. The second question is whether the CJEU has conceded too wide a margin of manoeuvre for national courts when it opened the door to a system of presumptions for vaccine liability and, by the same token, whether it has endorsed a ‘dangerous method’ for determining defectiveness and causation, which has the potential to elevate illogical reasoning to the status of legal proof. The point of interest is identifying which option achieves a better balance between public health concerns and individual rights, or whether a balancing act between the two approaches would be desirable.

Zhang on Firm Acquisitions, Inequality, and Diversity

Letian Zhang (Harvard University - Business School (HBS)) has posted Shaking Things Up: Unintended Consequences of Firm Acquisitions on Inequality and Diversity on SSRN.  Here is the abstract:

Although millions of workers every year experience ownership change as their firms get acquired, it remains unclear how such an event shapes inequality in the workplace. This study addresses this question using a difference-in-differences design on a nationally representative sample covering 37,343 acquisition events from 1971 to 2015. Contrary to the common assumption, while acquisitions increase skill-based inequality, they reduce both racial and gender inequality. On the one hand, they widen the skill-based gap, leading to fewer jobs for middle managers, back-office workers, and blue-collar workers while adding more jobs for educated professionals. But on the other hand, they shake up existing arrangements and open up opportunities for racial minorities and women to move into managerial ranks and new occupations, especially in those establishments where white men have previously occupied the most central positions. This study shows that major organizational events could have diverging effects on inequality: although mergers and acquisitions favor the more skilled workers, they also produce an unintended consequence of making room for more racial and gender equality in the workplace.

Anderson & George on Liberalism & Human Flourishing

Ryan T. Anderson (The Heritage Foundation; University of Dallas) & Robert George (Princeton University - Department of Political Science) have posted The Baby and the Bathwater (National Affairs, Number, 41, Fall 2019) on SSRN.  Here is the abstract:

Among the most prominent lines of argument in political theory in the past several years has been a sharp critique of “liberalism” as essentially incompatible with pre-liberal ideals of human flourishing. Scholars advancing this critique object to the notion commonly asserted by progressives, usually in the name of “liberalism,” that liberal ideals require laws that are “neutral” — by which they mean laws that do not embody and are not predicated upon any substantive view of what is humanly and morally valuable or what is right and wrong — and that only laws that elevate unlimited personal choice in matters like abortion and sexuality can pass that test. Any political arrangement that insists on such neutrality is misbegotten and harmful, the critics argue.

Such arguments are right about what many influential progressives have made of “liberal” political and social theory. But could it be that an order that might be called “liberal” — namely, the sort of thing sometimes described as “liberal democracy” — is morally defensible? We believe so, while agreeing that “neutralist” liberalism is misguided. Indeed we think that the contemporary critique of neutralist liberalism itself points toward a defense of a certain (very different) sort of liberalism, or at least to a defensible social and political order in which certain “liberal” principles and institutions are key parts of the picture. The supposed neutrality or (to use John Rawls’s term) “anti-perfectionism” of contemporary progressive liberalism is indeed illusory. Appeals to moral neutrality, however sincerely offered, have functioned in practice as smoke screens to disguise the smuggling in of a certain controversial conception of the good — one that progressives hold and just about everyone else rejects.

Rejecting anti-perfectionist liberalism need not commit one to rejecting all forms or aspects of what might legitimately be called “liberalism,” even if one judges — as we do — much of Enlightenment liberal philosophy, including its most influential contemporary forms (e.g., Rawlsianism), to be misguided. As two scholars who have deployed and sought to contribute to the development of the Aristotelian-Thomistic moral tradition, we see no reason to view Lockean liberalism — or Kantian or Rawlsian liberalism — as philosophical advances (whatever might be learned from them). Indeed, we have good reasons to judge them unsound in fundamental ways. And yet we are prepared to defend, for our own reasons, what are sometimes labeled “liberal” political institutions. (Of course, there is no magic in the word “liberalism,” and it need not be used if one regards it as so bound in common social usage to neutralism that its use risks misleading people.)

Many “liberal” political ideals and institutions predate liberal philosophy and, more to the point, have proven effective at promoting the common good. Some such ideals and institutions have much stronger (in the sense of more credible) justifications in the Aristotelian-Thomistic tradition than in Lockean or Rawlsian liberal theory. None of them rests upon or presupposes the necessity, desirability, or even possibility of neutrality about the human good. Representative government, separation of powers, constitutionalism, limited government and respect for the autonomy and integrity of institutions of civil society (beginning with the marriage-based family), jury trial, freedom of speech, freedom of religion, and other basic civil liberties all pre-date John Locke. They are more than defensible (and are indeed better defended) without invoking Lockean philosophical ideas.

We should not do away with any of them, for they are the political ideals and institutions that, compared to the alternatives, best promote and protect the common good — even when we conceive of the common good in a manner quite alien to some central principles of Enlightenment or contemporary progressive liberalism.

It is good for conservatives to once again think about which institutions and policies truly and effectively promote the political common good. We should be aware of the demons in democracy, as philosopher Ryszard Legutko points out, and be sensitive to negative trajectories built into the logic of Lockean and other forms of Enlightenment liberalism, as Patrick Deneen argues.

But to suggest, as Rod Dreher’s summary statement of Deneen’s thesis does, that “classical liberalism strikes out” goes too far. While classical liberalism (or important elements of it) may not have hit a home run, it certainly hasn’t struck out. Politics is a practical discipline aimed at effectively promoting the common good. Noting the philosophical defects of liberalism (as we ourselves have done) and recognizing the limitations of even morally defensible and desirable “liberal” institutions is important. But by itself, it does not tell us what in effect will best promote the common good of any particular community.

That judgment requires practical wisdom as well as a steady grip on foundational philosophical truths. Our “liberal” institutions deserve better than to be dismissed a priori based on abstractions. They deserve to be admired when they enable the common good, and improved (or in some cases replaced) when they don’t.

Heldt on Social Media Platforms as Public Forums

Amélie Pia Heldt (Hans-Bredow-Institute for Media Research) has posted Merging the 'Social' and the 'Public': How Social Media Platforms Could Be a New Public Forum (Mitchell Hamline Law Review, Vol. 46, Forthcoming (2020)) on SSRN.  Here is the abstract:

When Facebook and other social media sites announced in August 2018 they would ban extremist speakers such as conspiracy theorist Alex Jones for violating their rules against hate speech, reactions were strong. Either they would criticize that such measures were only a drop in the bucket with regards to toxic and harmful speech online, or they would despise Facebook & Co. for penalizing only right-wing speakers, hence censoring political opinions and joining some type of anti-conservative media conglomerate. This anecdote foremost begged the question: Should someone like Alex Jones be excluded from Facebook? And the question “should” includes the one of “may Facebook exclude users for publishing political opinions?”.

As social media platforms take up more and more space in our daily lives, enabling not only individual and mass communication, but also offering payment and other services, there is still a need for a common understanding with regards to the social and communicative space they create in cyberspace. By common I mean on a global scale since this is the way most social media platforms operate or aim for (see Facebook’s mission statement: “bring the world closer together”). While in social science a new digital sphere was proclaimed and social media platforms can be categorized as “personal publics”, there is no such denomination in legal scholarship that is globally agreed upon. Public space can be defined as a free room between the state and society, as a space for freedom. Generally, it is where individuals are protected by their fundamental rights while operating in the public sphere. However, terms like forum, space, and sphere may not be used as synonyms in this discussion. Under the First Amendment, the public forum doctrine mainly serves the purposes of democracy and truth and could be perpetuated in communication services that promote direct dialogue between the state and citizens. But where and by whom is the public forum guaranteed in cyberspace? The notion of the public space in cyberspace is central and it constantly evolves as platforms become broader in their services, hence it needs to be examined more closely. When looking at social media platforms we need to take into account how they moderate speech and subsequently how they influence social processes. If representative democracies are built on the grounds of deliberation, it is essential to safeguard the room for public discourse to actually happen. Are constitutional concepts for the analog space transferable into the digital? Should private actors such as social media platforms be bound by freedom of speech without being considered state actors? And, accordingly, create a new type of public forum?

The goal of this article is to provide answers to the questions mentioned. First, it will give an overview of the doctrinal concept of public forum doctrine in U.S. constitutional scholarship and its choke points related to cyberspace. In a second step, it will introduce the notion of “Public” in German constitutional jurisprudence as a point of reference and the outcome of the comparative analysis. It will answer whether the public forum doctrine and the definition of the Public in Germany serve the same function in both systems and if so, how it needs to be taken into account by non-state actors. The focus will be on the consequences of this comparison for the digital sphere, i.e. for the intermediaries that globally connect users and provide platforms to share content. The fundamental question is to which extent can platforms factually be the hosts of public discourse and at the same time enforce their own rules on the basis of their contractual relationship with users, i.e. moderate content. Gaining more clarity about these questions would serve the purpose of possibly revising our current expectations towards platforms, which are rather based on their role in modern society rather than on legal obligations. It would also show that judicial review can serve as a flexible tool if the doctrine is open to changes in society. Finally, I would like to propose an extension of the public forum doctrine, that would be based on the findings of the first parts and could serve as potential guidance to the judiciary, i.e. to the courts that are in practice applying the public forum doctrine.

Laufer-Ukeles on Collaborative Family-Making

Pamela Laufer-Ukeles (Academic Center for Law & Science (Shaarei Mishpat College of Law); University of Dayton - School of Law) has posted Collaborative Family-Making: From Acquisition to Interconnection (Villanova Law Review, Vol. 64, No. 223, 2019) on SSRN.  Here is the abstract:

Collaborative family-making occurs when parties who are not intended parents participate in creating and expanding families through assisted reproductive technologies (“ART”) and through adoption. Such collaboration is usually commercially driven, with fees being paid by intended parents to lawyers, intermediaries and collaborators, even if limited to expenses and lost wages. However, we also have firmly held beliefs reflected in well settled laws that people are not commodities that can be bought or sold, not in whole and not in part. Such “commodification anxiety” persists in limiting the commerciality in adoption, especially intercountry adoption (“ICA”), while markets in ART thrive in a largely unregulated setting, even the highly commercialized process of international commercial surrogacy. This dichotomy facilitates the acquisition of genetically designed babies through ART while children in need of adoption suffer and languish in institutional settings.

What is needed in order to save collaborative family-making from this ethical breakdown is a new frame of reference that avoids viewing collaborative family-making as a process of acquisition that consumes and commodifies human beings and instead humanizes collaborators through a frame of interconnection, based on openness and ongoing contact whether in the context of surrogacy or adoption. Long-standing disputes persist between adoption advocates such as Elizabeth Bartholet and the many who have come to critique ICA for the fraud, commodification and neo-colonialism involved, as well as between those who support commercial surrogacy and those who oppose it, with some specifically arguing for one method over the other. But such analyses fail to account for the ways commercial surrogacy and adoption share similar attributes and how both suffer from similar threats of commodification by using the services of the poor and the foreign to obtain their fertility goals. This article thereby offers a novel approach to both surrogacy and adoption, suggesting that while current legal frameworks fail to address concerns of commodification and dehumanization in both contexts, both methods of collaborative family-making can be ethically crafted within a legal frame of interconnection involving openness and ongoing contact among collaborators even after the “transaction.” Based on myriad empirical studies that I rely upon, such a frame of interconnection is already reflected in in domestic surrogacy and domestic adoption, where ongoing contact and openness prevail. However, international collaboration is treated differently with foreigners being dehumanized, and fraud and corruption is more endemic. I argue that openness and interconnection should frame adoption, ex-ante, domestically and abroad, and I introduce a new legal framework focused on openness and ongoing contact, which allows financial transfers and relies on government facilitation.

Reznik on Conservatism in Israel

Rafi Reznik (Georgetown University Law Center) has posted The Rise of American Conservatism in Israel (8 Penn State Journal of Law and International Affairs (2020) (Forthcoming)) on SSRN.  Here is the abstract:

In the United States, the link between interpretive methodology and political ideology has generated a massive yet largely idiosyncratic body of scholarship. This Article offers a comparative case study, which converses with the American example – Israel. A twofold argument is offered to facilitate this conversation. First, a current shift in the ideological climate of the Supreme Court of Israel is identified, manifested in the rise of a new interpretive method. Never before has a comprehensive alternative been offered to the interpretive theory prevailing in Israel, Purposive Interpretation, which is conceptually and historically tied to American liberal theories. The Article unpacks the challenges posed by the new theory, termed Purposive Originalism, in methodology as well as underlying understanding of democratic principles. While elevating the role of legislative history, an interpretive device associated with liberal judges in the U.S., Purposive Originalism nonetheless deeply resonates American conservatism, espousing variations on originalism, bright-line rules and deference. Second, it is contended that this development should be understood as part of a broader ideological reorientation of the political right-wing in Israel, toward American conservatism. Increasingly drawing on the philosophies, policies and strategies of its American counterpart, the Israeli Right has adopted the compound of social traditionalism, neo-liberal economic policy and hawkish national security stance, as well as discontent with the administrative state, synthesized under the headline of conservatism. An interpretive methodology that strives for the same values enshrined in this political project fulfills a vital role in its success. Such a convergence of judicial and political reinterpretations of conservatism marks the current historical moment in Israel a recreation of the dynamics that emerged in 1980s U.S., with an all-encompassing conservative backlash against legal liberalism. The Israeli case thus reveals how American conservatism can be, and is indeed, incorporated into different cultural and constitutional settings.

Nir on Corporate Boards & the Duty of Impartiality

Shachar Nir (Kirkland & Ellis) has posted One Duty to All: The Fiduciary Duty of Impartiality and Stockholders’ Conflict of Interest (Hastings Business Law Journal, Vol. 16, 2020) on SSRN.  Here is the abstract:

Delaware precedent, primarily Trados and ODN, holds that corporate boards of directors owe fiduciary duties to holders of corporation common stock and not to holders of preferred stock. This precedent, however, fails to address a broad range of complex but commonly occurring potential conflicts between and among holders of common stock and multiple classes of preferred stock.

The fiduciary duty of impartiality, rarely analyzed or applied in an intra corporate context, provides an analytic framework that allows for the discipline and consistent resolution of many of these unexplored conflicts.

Oldfather on Aesthetic Judging

Chad M. Oldfather (Marquette University - Law School) has posted Aesthetic Judging and the Constitution (Or, Why Supreme Court Justices Are Less like Umpires, and More like Figure-Skating Judges) (Florida Law Review, Forthcoming) on SSRN.  Here is the abstract:

This essay advances the claim that Supreme Court justices, especially in constitutional cases, are better analogized to judges in aesthetic sports, such as figure skating, than to the more familiar baseball umpire. The metaphor is descriptively stronger, in that both sets of actors make considerable use of unarticulated (and often inarticulable) norms and internalized conceptual knowledge in addition to the formal rules governing their respective domains, in that it accounts for the significance of acculturation in the acquisition of those norms and that knowledge, and in that it provides an account of how a system such as constitutional law can evolve apart from (and even without) changes to the formal rules. Finally, the metaphor serves as a useful caution. Figure skating judges, after all, do not enjoy a reputation for probity. Conceiving of the justices in those terms thus invites consideration of the sorts of factors that might lead to crisis in either context, an exercise that is especially appropriate in this era of deep partisan divide.

Recommended.

Zittrain on Eras of Digital Governance

Jonathan L. Zittrain (Harvard Law School and Harvard Kennedy School of Government; Harvard School of Engineering and Applied Sciences; Berkman Center for Internet & Society; Harvard University - Harvard Kennedy School (HKS)) has posted Three Eras of Digital Governance on SSRN.  Here is the abstract:

To understand where digital governance is going, we must take stock of where it’s been, because the timbre of mainstream thinking around digital governance today is dramatically different than it was when study of “Internet governance” coalesced in the late 1990s.

Perhaps the most obvious change has been from emphasizing networked technologies’ positive effects and promise – couched around concepts like connectivity, innovation, and, by this author, “generativity” – to pointing out their harms and threats. It’s not that threats weren’t previously recognized, but rather that they were more often seen in external clamps on technological development and upon the corresponding new freedoms for users, whether government intervention to block VOIP services like Skype to protect incumbent telco revenues, or in the shaping of technology to effect undue surveillance, whether for government or corporate purposes.

The shift in emphasis from positive to negative corresponds to a change in the overarching frameworks for talking about regulating information technology. We have moved from a discourse around rights – particularly those of end-users, and the ways in which abstention by intermediaries is important to facilitate citizen flourishing – to one of public health, which naturally asks for a weighing of the systemic benefits or harms of a technology, and to think about what systemic interventions might curtail its apparent excesses.

Each framework captures important values around the use of technology that can both empower and limit individual freedom of action, including to engage in harmful conduct. Our goal today should be to identify where competing values frameworks themselves preclude understanding of others’ positions about regulation, and to see if we can map a path forward that, if not reconciling the frameworks, allows for satisfying, if ever-evolving, resolutions to immediate questions of public and private governance.

Waldron on Dworkin on Integrity

Jeremy Waldron (New York University School of Law) has posted The Rise and Decline of Integrity on SSRN.  Here is the abstract:

Integrity was a major theme in Ronald Dworkin's Law's Empire, presented as the upshot of a difficult and convoluted argument in Ch. 6 of that book. In Dworkin's work since 1986, he has said less and less about integrity — certainly less and less about the difficult and convoluted argument. I argue that this is a pity, because the 1986 argument, challenging though it was, developed important connections between legality, legitimacy, disagreement, and respect for one's political opponents. It would have been good to see this argument refreshed in the new jurisprudence of Justice for Hedgehogs.

Highly recommended.

Kjaer on the Law of Political Economy

Poul F. Kjaer (Copenhagen Business School) has posted The Law of Political Economy: An Introduction (Forthcoming in Poul F. Kjaer (ed.): The Law of Political Economy: Transformation in the Function of Law (Cambridge: Cambridge University Press, 2020)) on SSRN.  Here is the abstract:

The law of political economy is a contentious ideological field characterised by antagonistic relations between scholarly positions which tend to be either affirmative or critical of capitalism. Going beyond this schism, two particular features appear as central to the law of political economy: the first one is the way it epistemologically seeks to handle the distinction between holism and differentiation, i.e., the extent to which it sees society as a singular whole which is larger than its parts, or, rather, as a mere collection of parts. Different types of legal and political economy scholarship have given different types of answers to this question. The second feature of the law of political economy is the way in which it conceives of the relation between hierarchical and spontaneous dimensions of society, i.e., between firms and the market, or between public institutions and public opinion. The two distinctions can, however, be overcome through a third-way, emphasising the strategic role of law in mediating between holism and differentiation and hierarchy and spontaneity. This is demonstrated through a historical re-construction of the evolution of corporatist, neo-corporatist, and governance-based institutional set-ups of political economy.

Adediran on the Effects of Relationships Between Law Firms and Nonprofit Legal Services Organizations

Atinuke O. Adediran (University of Chicago Law School) has posted The Relational Costs of Free Legal Services (55 Harvard Civil Rights-Civil Liberties Law Review. (Forthcoming, 2020)) on SSRN.  Here is the abstract:

At the same time that government funding for civil legal services has been reduced, large law firms have increasingly invested substantial amounts of labor and money into pro bono legal services. Although these investments have expanded the availability of free legal representation in some respects, they have caused other problems that can be broadly grouped into two categories. The first is that nonprofit legal services organizations (NLSOs) face undue costs when they collaborate with pro bono lawyers. The second is that the increasing involvement of law firms tends to produce a mismatch between the needs of the poor and the kinds of matters that receive free legal representation. Scholars have primarily explained these problems by looking at factors internal to law firms, but have yet to explore the impact of the structure of pro bono relationships on the delivery of legal services.

The literature posits that the core purpose of NLSOs is to provide quality legal services to the poor. It therefore follows that NLSOs would only engage in pro bono relationships that would not compromise this purpose. However, the literature has yet to explain why NLSOs engage in pro bono relationships that appear to be suboptimal in ways that go against their core purpose. This article draws on qualitative empirical data to show how institutional relationships impact inequality in legal services, how this inequality is generated, what its specific elements are, and what can be done to alleviate it. Particularly, it describes the structure of pro bono relationships that scholars have yet to notice, which is that NLSOs respond to law firm demands for pro bono work and board seats virtually regardless of the quality of pro bono work or costs to NLSOs. Resource dependence theory in organizational sociology helps to frame this empirical data, and provides guidelines for remedying the problem. The article argues that the problems in legal services reflect the power imbalances that exist between law firms and NLSOs. To secure law firm resources for survival, NLSOs acculturate law firm lawyers and accept subpar pro bono work. The article makes three proposals that would address the power imbalances between law firms and NLSOs.

Carrillo on Standards for Network Neutrality

Arturo J Carrillo (George Washington University - Law School) has posted Are There Universal Standards for Network Neutrality? (University of Pittsburgh Law Review, Vol. 80, 2019) on SSRN.  Here is the abstract:

The regulation of the Internet in general, and network neutrality in particular, has become a priority for many governments around the globe. The United States is no exception. It enacted new rules protecting net neutrality in 2015 and then famously undid them in 2017. Other countries similarly struggle to regulate net neutrality effectively, including Brazil, India and those that comprise the European Union. Most national debates of net neutrality policy tend to be fractious affairs. There is deep disagreement surrounding the best way to approach the issue. In previous work, I have shown how the design and implementation of net neutrality norms by States can lead to more coherent, just, and sustainable policies when they are guided by universally-recognized human rights norms. This Article advances that thesis by identifying which human rights norms apply to net neutrality across the board and explaining how those norms fully address the most critical issues at the heart of net neutrality policy debates everywhere. These include: defining the content and scope of net neutrality; promoting Internet access to help close the digital divide; and regulating zero-rating, among others. To substantiate the novel claim that universal standards govern net neutrality, this Article engages in a comparative analysis of the major human rights legal frameworks erected by the United Nations, the Organization of American States (“OAS”), and Europe. It also surveys the practice of States that have adopted some form of net neutrality regulations to date. These comparative studies reveal a significant degree of normative convergence suggesting that standards have begun to crystallize, at least with respect to the basic definitional elements of net neutrality. The Article concludes by explaining why the existence of universal standards for net neutrality matters to and in the United States.

Legal Theory Lexicon: Persons and Personhood

Introduction

Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? These questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory. 

Persons and Humans

The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":

a bipedal primate mammal (Homo sapiens)

And person is sometimes defined as a "human" or "individual". But "person" has another meaning, one that distinguishes the concept of person from the concept of human. Suppose, for example, an intelligent alien species were to arrive on Earth (or humans were to encounter them elsewhere). If the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.

Consider, for example, the aliens Chewbacca and Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.

Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative (legal, moral, or ethical) term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans.  "Human persons," then are members of the biological species with the relevant capabilities.

The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons," although they would be "potential persons" or "potential human persons."

There is more to be said about terminology, but I will conclude with two observations.  Some of the debates about "persons" and "personhood" may reflect an ambiguity in the word "person."  But it is at least possible that one of the senses of person (roughly the moral sense) is a contested concept--that is, there may be competing conceptions of the concept person.  (See the Legal Theory Lexicon entry on the concept-conceptions distinction.)

Legal, Moral, and Natural Persons

So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons.

Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons.  (More precisely, the claim that corporations are moral persons would be controversial.)  A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts.

The discussion in the prior paragraph assumes that only individual humans are natural persons, but this assumption is controversial.  If groups can have agency, then there might be persons constituted by groups of humans.  This entry of the Legal Theory Lexicon simply brackets the assumption that groups of humans are not natural persons.

Legal Personhood

The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued.

Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone has recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities.

Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will."

Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists.

Moral Personhood

"Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot or disembodied artificial intelligence) a moral person? Here are some of the possibilities:

Intelligence--One possibility is that the possession of "intelligence" (at some threshold level) is the criterion for moral personhood. Of course, "intelligence" itself is hardly a transparent concept.

Autonomy--Another idea is that persons must be capable of autonomy. But what is autonomy? One notion is that autonomous beings must be capable of second-order beliefs and motivations. That is, autonomy requires that one be able to have beliefs about one's beliefs and desires about one's desires.

Communication--Yet another possibility is that personhood requires the ability to communicate with others or to use language. On this criterion, it is possible that some higher primates might qualify for personhood--although the empirical evidence on primate use of human language is disputed.

Self-Awareness--Finally, some have argued that the criterion for moral personhood should be self-awareness or reflexive consciousness. To be a person, I must be aware of the my own consciousness.

This is not an exhaustive list of the criteria for moral personhood. Moreover, these criteria might be combined in various ways. For example, it might be argued that only an intelligent, autonomous, language-using, self-conscious being would be a full moral person.

Conclusion

"Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography.

Related Lexicon Entries

• Legal Theory Lexicon 028: Concepts and Conceptions

Bibliography

• John Chipman Gray, The Nature and Sources of the Law (Roland Gray ed., MacMillan 1921).
• Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 North Carolina Law Review 1233 (1992).
• Christopher Stone, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972).
• Richard Tur, The 'Person' in Law in Persons and Personality: A Contemporary Inquiry  (Arthur Peacocke & Grant Gillett eds., 1987).

Resources on the Internet

• Lori Gruen, The Moral Status of Animals, Stanford Encyclopedia of Philosophy (2010).

(Last revised on October 6, 2019)