Legal Theory Blog

Keenan on Living Equity

Riley Keenan (Cornell Law School) has posted Living Equity on SSRN.  Here is the abstract:

Federal courts have long assumed a flexible and dynamic power to afford equitable remedies. Recently, however, the Supreme Court has turned to historical equity practice—in some cases, the practice of England’s chancellor in 1789—to fix the scope of the federal equity power. This “equitable originalism” poses a grave threat, particularly in cases like Whole Women’s Health v. Jackson, where the Court concluded that it largely lacked the equitable powers needed to prevent a Texas abortion statute from infringing women’s constitutional rights.

This Article challenges the current Supreme Court’s historical approach. Instead of looking exclusively to history, courts should treat federal equity as a living, evolving body of doctrine whose roots ultimately trace to medieval England but whose content has been steadily refined and expanded in the United States through common law reasoning. This approach better reflects not only the founding-era statutes and cases that created and defined the federal equity power, but it also better reflects the Supreme Court’s later practice, English equity practice, and equity’s broader function in the Anglo–American legal system. Finally, it brings structure to ongoing debates over controversial equitable practices—like universal injunctions and extensions of Ex parte Young—by explaining how, why, and to what extent history matters when courts do equity today.

Highly recommended.

Simkovic & Furth on Pigouvian Contracts

Michael Simkovic (University of Southern California Gould School of Law; University of Southern California - Marshall School of Business) & Meirav Furth (UCLA School of Law) has posted Pigouvian Contracts on SSRN.  Here is the abstract:

Pigouvian taxes are often used to limit environmental externalities such as pollution. We argue that consumer contracts generate externalities by overwhelming consumers’ attention. Depleting each consumer’s attention harms consumers collectively because lower comprehension levels enable sellers to adopt less efficient and more one-sided terms. We propose to tax sellers in proportion to the costs that comprehending their contracts would impose on consumers. This would force sellers to internalize these costs and incentivize them to invest in contract simplification and forego strategic obfuscation. As a result, the costs to consumers of comprehending would decrease, and comprehension rates would rise. To further penalize inefficient contracts while reducing the tax burden on efficient contracts, we propose subsidizing consumer comprehension and information sharing efforts. Inefficient contracts would thereby be strongly disincentivized.

Highly recommended.  Download it while it's hot!

Long time readers of Legal Theory Blog will know that I became obsessed with Pigouvian taxes in 1971 as a junior in high school.  I will always be indebted to James Krier, now at the University of Michigan, but then a law professor at UCLA for the time he spent with me discussing this idea.  A real thrill for a 16 year old.

Almeida, Struchiner, & Hannikainen on Rule Violation Judgments &

Guilherme Almeida (Yale University), Noel Struchiner, & Ivar Hannikainen (University of Sheffield - Department of Philosophy; Department of Philosophy I; Pontifical Catholic University of Rio de Janeiro (PUC-Rio)) have posted Rule is a Dual Charac­ter Concept on SSRN.  Here is the abstract:

Recent experimental work revealed that rule violation judgments are sensitive to morality. For instance: when someone blamelessly violates a rule's text, about half of the participants say that the rule was violated, with the remainder saying that it wasn't. Why is that so? Current evidence is compatible with three distinct explanations. According to the pragmatic view, rule violation judgments pragmatically imply judgments of blame. Hence, the results don't tell us anything about the concept of rule itself. Instead, they are simply caused by conversational pragmatics. On the other hand, the mixed character view states that the concept of rule simultaneously combines text and purpose into a single criterion. Finally, the dual character view states that the concept of rule is similar to the concepts of scientist and father. These concepts have two distinct sets of criteria, each sufficient to determine one sense in which the concept applies. One of the criteria is descriptive, while the other is normative. In this paper, we report the results of five studies designed to adjudicate between these alternatives. Study 1 finds results that are incompatible with the pragmatic view, while Study 2 shows that the concept of rule behaves in a way that is notably different than some mixed character concepts on a linguistic test. Finally, Studies 3-5 support the idea that the concept of rule has a dual character. We consider the jurisprudential implications of each alternative.

And from the end of the paper:

[S]pell[ing] out in a precise manner both the normative and descriptive sets of criteria that guide the application of the concept of rule . . . might allow for reconciliation between rival conceptions of law. Thus, the efforts to find, on the one hand, the descriptive elements that bind together our usage of the concept of law (a task to which many legal positivists have dedicated their lives), and, on the other hand, the characteristic values associated with that usage (something that many philosophers in the natural law tradition strived to do), might be conceptualized as complementary -- rather than rival -- enterprises.

Fascinating.  Highly recommended.

Dichio & Somin on the Supreme Court & Centralization of Political Power

Michael Dichio (University of Utah - Department of Political Science) & Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) have posted Rethinking the Supreme Court’s Impact on Federalism and Centralization on SSRN.  Here is the abstract:

This article examines the U.S. Supreme Court’s impact on centralizing and decentralizing power in the American federal system. Through an original database of nearly 700 landmark constitutional decisions, we show that the Court has contributed to the centralization of political power, defined in the traditional sense of expanding federal government authority relative to that of states and localities. But it has also promoted decentralization by protecting individual rights against state and local governments. The impact of the Court also tends much more toward decentralization if we classify decisions upholding federal laws against challenge, as neutral, rather than centralizing. These two crucial methodological points have been largely neglected in previous analyses of the Court’s impact on federalism and centralization. There are, in many situations, good reasons to adopt them. We also present multiple models for understanding how the Court affects federalism.

Our analysis calls into question the traditional picture of the Court as a consistent force for centralization. It also raises serious questions about the conventional wisdom on the impact of the Court on centralization during specific periods in American history.

Recommended.

d'Aspremont & Zhang on China & International Law

Jean d'Aspremont (Sciences Po Law School; University of Manchester - School of Law) & Binxin Zhang (Sciences Po) have posted China and International Law: Two Tales of an Encounter (34 Leiden Journal of International Law (2021) 899-914) on SSRN.  Here is the abstract:

This article examines how the encounter between China and international law is narrated in the English- speaking and Chinese literature and sheds light on the politics thereof. It particularly shows that the English-speaking and Chinese-speaking literature diverge as to the order of meaning in which the encounter between China and international law is registered. It demonstrates that the divergences between these bodies of literature are everything but innocent.

Dedek on H. Patrick Glenn's Cosmopolitan Jurisprudence

Helge Dedek (McGill University - Faculty of Law) has posted Where the ‘Real Action’ is: From Comparative Law to Cosmopolitan Jurisprudence (Helge Dedek (ed.), A Cosmopolitan Jurisprudence. Essays in Memory of H. Patrick Glenn (Cambridge: Cambridge University Press, 2022) 3-25) on SSRN.  Here is the abstract:

H. Patrick Glenn, Professor of Law and former Director of the Institute of Comparative Law at McGill University, passed away in 2014. This chapter is the introduction to a collection that intends to honor Professor Glenn’s intellectual legacy by engaging critically with his ideas, focusing on the theoretical dimension of his work and especially his vision of a ‘critical cosmopolitan jurisprudence'. To this end, the collection brings together an international group of leading scholars in comparative and transnational law, legal philosophy, legal sociology, and legal history.

This introductory chapter situates Professor Glenn’s work within the context of his trajectory as a scholar of comparative law who came to believe in the potential of a 'comparative' mindset to inform general theories of law. The chapter examines critically the conceptualization of law as ‘tradition,’ one of the central tenets of Glenn's thought, and his postulate of the 'conciliatory' potential of such an approach. Can law indeed be theorized as an organic, self-sustaining yet open discourse, without borders and demarcation lines? Can it be theorized successfully without acknowledging the significance of concepts such as power, force, and violence?

Hathaway on the Alien Tort Statute & the Nestle & Cargill Cases

Oona A. Hathaway (Yale University - Law School) has posted Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe: The Twists and Turns of the Alien Tort Statute on SSRN.  Here is the abstract:

For four decades now, the Alien Tort Statute (ATS) has been one of the most important tools for pursuing justice for human rights victims in the United States. The statute’s latest trip to the Supreme Court came in the October Term 2020 in a pair of cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, which were brought by former child slaves trafficked from Mali to Côte d’Ivoire to work on cocoa plantations. The Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. The decision, issued in June 2021 in the final weeks of the Term, never reached the issue. The Court held instead that the plaintiffs inappropriately sought to apply the ATS extraterritorially.

After providing some background on the cases, this essay will address three key issues that arose in the Court’s decision in the cases. First, it will consider the fight over Sosa’s legacy illuminated in an exchange between the opinion authored by Justice Clarence Thomas and the opinion authored by Justice Sonia Sotomayor. Second, it will examine the surprise win for the plaintiffs on the question of corporate liability. Third, it will examine the likely impact of the Court’s decision on extraterritorial application of the ATS. And, finally, it will argue that it is time for Congress to legislate to ensure accountability for human rights violations carried out by U.S. citizens and corporations even if carried out beyond the territory of the United States.

Kozel on Content Neutrality

Randy J. Kozel (Notre Dame Law School) has posted Content Under Pressure on SSRN.  Here is the abstract:

The government generally may not punish speakers based on the content of their speech. Or so the story goes. While American courts frequently describe content neutrality as a foundation stone of expressive liberty, the results do not track the recitations. A systematic analysis of free speech jurisprudence reveals that content-based laws remain perfectly acceptable in a host of contexts.

The pervasiveness of content discrimination requires a reorientation of First Amendment doctrine. The core precept of expressive liberty under the U.S. Constitution is that the government may not punish speakers for their positions or perspectives. The cases reveal that so long as viewpoint neutrality prevails, content discrimination often poses no constitutional problem.

Highly recommended.

Witt on the Law of Pandemics & American History

John Fabian Witt (Yale University - Law School) has posted American Contagions: Unexpected Pasts, Unwieldy Presents, and Contested Futures (University of St. Thomas Law Journal, 2022) on SSRN.  Here is the abstract:

This article aims to trace three different features of the law of pandemics. First, I describe an unexpected history of epidemics in the United States, one that I think will be surprising to many Americans and that looks different than one might have imagined. Second, I turn to our unwieldy present, with its cacophony of different points of view and perspectives and account for some of the controversies that have arisen in the law of pandemics in the last year or so. Third, I do what historians should never do: I will make a couple predictions about our contested future—or at least try to shine a light on some of the directions we might be headed.

van den Brink on the EU Citizenship Rights Test

Martijn van den Brink (Hertie School of Governance) has posted Time to Abolish the Substance of EU Citizenship Rights Test? (European Journal of Migration and Law (2021) 23, pp. 13-28) on SSRN.  Here is the abstract:

It is almost ten years since the CJEU decided in Ruiz Zambrano that Article 20 TFEU ‘precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’. Much was uncertain after this judgment was delivered, but the CJEU has developed an important line of cases clarifying when the substance of rights test applies. Can we make sense of the substance of rights test ten years on? Having explained relevant legal developments, the article addresses certain inconsistencies and unresolved puzzles in the CJEU’s reasoning. First, contrary to what the Court initially appeared to suggest, EU citizens can be deprived of the genuine enjoyment of the substance of their rights. Second, contrary to what the Court used to suggest, the substance of rights test is not independent from but grounded in the right to move and reside freely within the Member States. Therefore, the same level of protection can be conferred on EU citizens without this test, simply by relying on EU free movement law. The paper concludes by suggesting that these deficiencies can only be resolved by reconsidering the substance of rights test altogether.

Taylor on Political Equality, the First Amendment, & Labor Law

Luke Taylor has posted Political Equality and First Amendment Challenges to Labor Law (90 U. Cin. L. Rev 505 (2021)) on SSRN.  Here is the abstract:

This Article conceptualizes a novel basis for defending laws that strengthen labor unions from First Amendment challenge: the argument that these laws are adequately tailored to advancing a compelling state interest in reducing economic inequality’s transmission into political inequality. The Article makes two principal contributions. First, it updates criticisms of the Supreme Court’s campaign finance decisions’ rejection of any compelling interest sounding in political equality. The Article does so by bringing recent constitutional scholarship to bear on that criticism and by explaining how recent improvements in social scientists’ ability to track different economic brackets’ political influence call for the Court to reexamine the prudential concerns that motivated the Court to reject such an interest. Second, the Article is novel in conceptualizing how the interest in reducing economic inequality’s transmission into political inequality could provide a basis for defending union-strengthening laws that have faced, currently face, or may soon face First Amendment challenge.

To show that such laws are quite plausibly adequately tailored to advancing this interest, the Article explains how unions reduce wealth-based distortions of political influence both by reducing economic inequality through collective bargaining and by organizing political power among low-income and middle-class workers. This dual mechanism distinguishes union-strengthening laws from other methods of reducing wealth-based political inequality. The Article focuses especially on showing why this distinction means proposals to reduce economic inequality through tax and transfer are likely not less restrictive alternatives to First Amendment-impinging laws that strengthen unions.

Liscow & Markovitz on Democratic Behavioral Economics

Zachary D. Liscow (Yale University - Law School) & Daniel Markovits (Yale Law School) have posted Democratizing Behavioral Economics on SSRN.  Here is the abstract:

Behavioral economics—arising from the insight that people make recognizable, systematic mistakes—has revolutionized policymaking. For example, in governments around the world, including the US, teams of experts have recently arisen to harness these insights, promising to do things like increase retirement savings. But there is a problem: Economic experts do not look or think like the rest of the population. They are deeply unrepresentative demographically and have quite different policy views.

This would be less problematic if the experts were merely helping people pursue the behavior that the people themselves would undertake, as was the case in traditional law and economics. However, the whole point of behavioral economics is that such behavior is often not in people’s interest. Rather, in making judgments about the right policy, behavioral law and economics has erected a new, shaky structure, based on ad hoc and often unstated normative assumptions. The result risks merely enacting the policy preferences (or biases) of unrepresentative experts and thereby distorting policymaking.

Recommended.

We propose a new approach—democratic law and economics—in which, rather than dictating what the right policy or action is, behavioral economists instead inform representative samples of ordinary people about the evidence, including specifically about their own behavioral biases, and let them decide for themselves. Those decisions, rather than experts’ opinions alone, then inform policymakers. Our approach harnesses the insights of behavioral economics, but in a way that lets the people themselves, rather than the behavioral expert, be the arbiter of the good life.

Solum on the Public Meaning Thesis

Lawrence B. Solum (University of Virginia School of Law) has posted The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning (Boston University Law Review, Vol. 101, No. 1953, 2021) on SSRN.  Here is the abstract:

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process included intense popular participation. Jurists and scholars emphasized the public nature of the Constitution.

The communication of public meaning is made possible by two features of constitutional communication. The first of these features is a shared language: the drafters of the constitutional text could rely on the fact that American English was spoken by most Americans and was accessible via translation to those who spoke German and Dutch. The second feature is a shared public context of constitutional communication: the drafters could rely on widely shared understandings of the circumstances in which the Constitution was framed and ratified. These features enable the creation of public meaning. Common objections to the Public Meaning Thesis, including the “summing problem,” are based on mistaken assumptions about the way linguistic communication works. In sum, the central claim of the Article is that Public Meaning Originalism provides the best understanding of original meaning and hence the most attractive form of originalist constitutional theory.

As always, comments are welcome: lsolum at gmail dot com.

Calzada on Digital Citizenship

Igor Calzada (University of Oxford, Future of Cities Programme & Urban Transformations ESRC portfolio, COMPAS; Cardiff University, WISERD (Wales Institute for Social and Economic Research and Data)) has posted Emerging Digital Citizenship Regimes: Pandemic, Algorithmic, Liquid, Metropolitan, and Stateless Citizenships (Citizenship Studies 25(6-8). Special Issue ‘Digital Citizenship in the Post-Pandemic Urban Realm’) on SSRN.  Here is the abstract:

This article develops a conceptual taxonomy of five emerging digital citizenship regimes: (i) the globalised and generalisable regime called pandemic citizenship that clarifies how post-COVID-19 datafication processes have amplified the emergence of four intertwined, non-mutually exclusive, and non-generalisable new techno-politicalised and city-regionalised digital citizenship regimes in certain European nation-states’ urban areas; (ii) algorithmic citizenship, which is driven by blockchain and has allowed the implementation of an e-Residency programme in Tallinn; (iii) liquid citizenship, driven by dataism – the deterministic ideology of Big Data – and contested through claims for digital rights in Barcelona and Amsterdam; (iv) metropolitan citizenship, as revindicated in reaction to Brexit and reshuffled through data co-operatives in Cardiff; and (v) stateless citizenship, driven by devolution and reinvigorated through data sovereignty in Barcelona, Glasgow, and Bilbao. This article challenges the existing interpretation of how these emerging digital citizenship regimes together are ubiquitously rescaling the associated spaces/practices of European nation-states.

Saul on the Right to Self-Determination & Prolonged Occupation

Matthew Saul (Pluricourts; Inland Norway Uni of Applied Sciences) has posted The Right to Self-Determination and the Prolonged Occupation of Palestinian Territory (Gentian Zyberi (ed.), Protecting Community Interests through International Law 2021) on SSRN.  Here is the abstract:

How should we understand the function of the right to self-determination in situations of prolonged occupation? To shed light on this question, the first part of this chapter examines doctrine on the meaning of the right to self-determination in international law and its relation to the law of occupation. It explains how the right to self-determination may serve as part of the law of occupation’s interpretative framework, but also as a standalone component of the international legal framework for prolonged occupations. The second part of this chapter examines the prolonged occupation of the Palestinian territory from the perspective of the right to self-determination. Specific attention is given to the Oslo Accords, circumstances in Gaza, population movement, and natural resource usage. The analysis brings more fully into focus the distinct nature of the two functions for self-determination and illustrates the importance of keeping them separate. The third part of the chapter examines the legal consequences that follow from denial of the right to self-determination. The focus is on the importance of the right for the international community of states and the obligations this generates.

The chapter argues that when circumstances add complexity and uncertainty to the operation of a specialised legal regime, it is important to recognise that fundamental principles of international law continue to operate as a baseline that secures protection of international community interests. The right to self-determination as a precept of non-domination operates to provide legal protection in situations of prolonged occupation regardless of the haze that can form around the meaning and application of the law of occupation.

Moir on Evergreening Pharmaceutical Patents

Hazel V. J. Moir (Australian National University (ANU) - Centre for European Studies, Research School of Social Sciences) has posted Pharmaceutical Patents and Evergreening on SSRN.  Here is the abstract:

This paper investigates the motivations which trigger evergreening patents for pharmaceuticals and explores the characteristics of such patents, particularly their low degree of inventiveness. It starts by considering the economics of the pharmaceutical industry – the cost of developing new medicines; who pays for this research and development (R&D); what pharmaceutical revenue is spent on and how profits are used. Attention is then turned to the patent system and the leading role the pharmaceutical industry has played in designing the critical features that allow secondary patents (Section 2). Section 3 reviews in detail different types of evergreening patents, commenting on the doctrines (patent policies) which give rise to such patents. The paper concludes by looking at the impact that the industry’s focus on evergreening patents has on the incentive to develop new medicines that address unmet health needs. Given the incentive structure in patent policy the industry has managed to achieve, it is far more profitable to extend market monopolies for existing medicines, and develop variants of these, than it is to undertake riskier research to develop totally new medicines. Numerous voices have called for substantial reforms to reset the incentive structure for the pharmaceutical industry, but to date governments throughout the democratic world have been impervious to these.

Maltz on United States v. Virginia & Strict Scrutiny

Earl M. Maltz (Rutgers, The State University of New Jersey - Rutgers Law School) has posted The Road to United States v. Virginia: Ruth Bader Ginsburg and the Battle Over Strict Scrutiny (Forthcoming, Rutgers Women's Law Reporter) on SSRN.  Here is the abstract:

Throughout her long career as both a litigator and a member of the Supreme Court, Ruth Bader Ginsburg was a champion of women’s rights who insisted that the Constitution outlawed legal distinctions that were based on sexist stereotypes. However, in one important respect, the arguments that Ginsburg made as a litigator in the 1970s differed significantly from those that were embodied in her signature opinion in United States v. Virginia. During the 1970s, Ginsburg often contended that laws that treated women differently than men should be subject to strict scrutiny because sex discrimination was analogous to race discrimination. By contrast, in Virginia, although she spoke for the Court in holding that women could not be excluded from Virginia Military Institute, her opinion emphasized the differences between distinctions based on race and distinctions based on sex for constitutional purposes. This article is the first to focus on this aspect of Ginsburg’s opinion in Virginia and to provide an explanation for her change in course.

Brown on Criticizing Judges & Rule 8(a)(2) of the Rules of Professional Conduct

Lonnie T. Brown (University of Georgia School of Law) has posted Criticizing Judges: A Lawyer's Professional Responsibility (Georgia Law Review, Vol. 56, 2021) on SSRN.  Here is the abstract:

Lawyers, as officers of the court, are expected to act with deference and respect toward judges. Speaking sharply to or publicly criticizing members of the bench is frowned upon and not infrequently met with punitive responses. The judiciary, however, is not above reproach. Judges are fallible and may possess personal biases, tainting self-interest, or even prejudice. As such, at times, they must disqualify themselves if their ability to dispense justice fairly and impartially can reasonably be questioned. Indeed, the very nature of a judge’s role requires avoidance of even the “appearance of impropriety.” When judges fail to adhere to this standard, decisional accuracy is called into question, and the perception of fairness, so important to the judicial process, is diminished.

Judges have broad discretion in deciding whether to disqualify themselves, and legal review of those decisions is limited, especially when made by a state’s highest court. In Georgia, for example, if a supreme court justice declines to recuse, there is no avenue for appellate review and mandamus relief is unavailable. Hence, a lawyer’s only meaningful recourse may be to publicly criticize the justice, making others aware of perceived wrongful conduct. Such a response, however, is substantially dissuaded in virtually every U.S. jurisdiction by Rule 8.2(a) of the Rules of Professional Conduct, which subjects lawyers to discipline for knowingly or recklessly making a false statement “concerning the qualifications or integrity of a judge.” While facially narrow, the rule is widely interpreted to cover far more criticism than the text would suggest. Only Georgia and the District of Columbia have declined to adopt Rule 8.2(a), choosing instead to accord greater latitude to the free-speech rights of lawyers. In this article, I argue that such an approach is more consistent with and supportive of lawyers’ ethical duties to their clients, the judicial system, and the public, and therefore should serve as the regulatory prototype.

Bookman & Shanahan on Civil Procedure & Lawyered versus Lawyerless Courts

Pamela K. Bookman (Fordham University School of Law) & Colleen F. Shanahan (Columbia University - Law School) have posted A Tale of Two Civil Procedures (Columbia Law Review, Vol. 122, 2022) on SSRN.  Here is the abstract:

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.

This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which include federal courts coupled with state court commercial dockets and the other pockets of state civil courts where lawyers tend to be paid and plentiful—and “lawyerless” state courts, which hear the vast majority of claims filed in this country. Doing so, we argue, reveals fundamental differences between the two sets of court procedures that operate in the United States and much about the promise and limits of procedure. We discuss how this dichotomy plays out in three of the most contentious and talked about topics in civil procedure scholarship today: written and unwritten procedure making, the role of new technology, and the handling of masses of similar claims. Seen through this lens, these examples illuminate where and how lawyers are essential to procedural development and procedural protections; they help us better understand where technology should be used to assist or replace lawyers, and where it should be used to reinvent procedure or make up for lawyers’ absence; and they reveal when fixing court procedure may simply not be enough.

Roiphe & Green on ABA Model Rule 8.4(g) & Free Speech

Rebecca Roiphe (New York Law School) & Bruce A. Green (Fordham University School of Law) have posted ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment (Hofstra Law Review, Vol. 50, 2022) on SSRN.  Here is the abstract:

The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many of the contexts in which the rule would apply. Rather than wading into the question of whether Rule 8.4(g) is constitutionally overbroad, we argue that state bars should not adopt a rule that comes close to that line.

Payne Debt Restructuring in the UK

Jennifer Payne (University of Oxford - Faculty of Law) has posted Debt Restructuring in Transition on SSRN.  Here is the abstract:

UK debt restructuring is undergoing a period of immense change. Two developments in particular have contributed to this transformation. The first is legislative: the Corporate Insolvency and Governance Act 2020 (CIGA) introduced a number of powerful new tools into the armoury of financially distressed companies wishing to restructure their debt. The second is political: the UK’s exit from the EU has impacted on UK debt restructuring, particularly the use of English restructuring tools involving companies with creditors in EU member states. These developments have four major implications for UK debt restructuring, namely (i) a shift from a creditor-focused regime to one which is more pro-debtor; (ii) the development of a modular system for debt restructuring and insolvency more generally; (iii) a blurring of the boundary between restructuring and insolvency; and (iv) a more complex cross-border regime. In combination these amount to a seismic shift in the UK debt restructuring landscape. The full consequences of these changes, however, remains to be seen as we are currently in a period of transition. The final impact of these developments will only emerge as commercial parties negotiate new arrangements or renegotiate existing ones against the backdrop of judicial decisions and the effects of regulatory competition. Nevertheless, as this paper examines, it is clear that there will be profound implications for companies, their creditors, employees, customers and other stakeholders, and for the UK’s role as a global player.

Cavaliere & Romeo on Artificial Intelligence & Democracy

Paolo Cavaliere (University of Edinburgh - School of Law) & Graziella Romeo (Bocconi University - Department of Law) have posted From Poisons to Antidotes: Algorithms as Democracy Boosters on SSRN.  Here is the abstract:

Under what conditions can artificial intelligence contribute to political processes without undermining their legitimacy? Thanks to the ever-growing availability of data and the increasing power of decision-making algorithms, the future of political institutions is unlikely to be anything similar to what we have known throughout the last century, possibly with Parliaments deprived of their traditional authority and public decision-making processes largely unaccountable. This paper discusses and challenges these concerns by suggesting a theoretical framework under which algorithmic decision-making is compatible with democracy and, most relevantly, can offer a viable solution to counter the rise of populist rhetoric in the governance arena. Such a framework is based on three pillars: a. understanding the civic issues that are subjected to automated decision-making; b. controlling the issues that are assigned to AI; and c. evaluating and challenging the outputs of algorithmic decision-making.

Rotman, Hollis, & Trauth on Regulating Nonpoint Source Water Pollution

Robin Rotman (University of Missouri), Ashley Hollis (Lewis & Clark College, Law School, Students), & Kathleen Trauth (University of Missouri - Columbia) has posted Realigning the Clean Water Act: Comprehensive Treatment of Nonpoint Source Pollution (Ecology Law Quarterly, Vol. 48, No. 1, 2021) on SSRN.  Here is the abstract:

Nonpoint source pollution is the biggest threat to water quality in the United States today. This Article argues for stronger federal controls over nonpoint source pollution. It begins by examining the history of water quality regulation in the United States, including the passage and amendment of the Clean Water Act and the evolving definition of “navigable waters” over time. The Article then discusses recent rulemaking and litigation developments, including the Clean Water Rule, the Navigable Waters Protection Rule, and the County of Maui, Hawaii v. Hawaii Wildlife Fund case. It offers three recommendations. First, the Article calls for a congressional amendment to the Clean Water Act to require binding controls on nonpoint source pollution. Second, recognizing that an amendment to the Clean Water Act may not be politically viable, it offers an approach for controlling nonpoint source pollution through an amendment to the Safe Drinking Water Act. Finally, it identifies tools that interested states, local governments, and citizens’ groups can utilize to take action on nonpoint source pollution under existing law. This Article concludes that reductions in nonpoint source pollution will lead to significant improvements in the water quality of our nation’s lakes, rivers, wetlands, and coastal areas, to the benefit of human and environmental health.

Smith on Online Criminal Trials

Stephen E. Smith (Santa Clara University - School of Law) has posted The Online Criminal Trial as a Public Trial (Southwestern University Law Review, Vol. 51, 2021) on SSRN.  Here is the abstract:

There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.

The constitutionality of an online trial may be largely an idle inquiry. There will rarely be an instance where instituting an online trial is worth the trouble. It is easier to simply open the doors of the courtroom. But the COVID-19 pandemic has taught us that there may be times when opening those doors is anything but simple.

Solum on "The World Philosophy Made" by Soames

Lawrence B. Solum has posted Deferentialism: Soames on legal interpretation on the Springer website.  Here is the abstract:

This essay explores themes raised by Scott Soames in Chapter Twelve of The World Philosophy Made. Soames’s key contribution is the articulation of ageneral theory of legal interpretation and more specific theory, Constitutional Deferentialism, that is a form of public meaning originalism. His development of the connections between the philosophy of language and legal interpretation have been especially important and influential.

A link to the book is in the abstract.

Simmons on Political Risk Management

Omari Scott Simmons (Wake Forest University School of Law) has posted Political Risk Management on SSRN.  Here is the abstract:

The COVID-19 pandemic and social unrest have focused considerable corporate attention on political risk. The disruptions to company operations are voluminous and diverse: entertainment and hospitality industry closures, airline industry cancellations, eviction moratoriums in residential real estate, international trade interruptions, manufacturing supply shortages, employee vaccination mandates, and ride-hailing service restrictions. Enterprise risk management (ERM) is the mechanism through which boards and their respective firms can manage complex political risks. In the current business climate, more companies should emphasize and integrate political risk oversight in their ERM programs. Although neglecting political risk may not trigger legal liability from regulators or courts, it can cause significant financial and reputational losses to the company. Contemporary corporate boards should not operate with political blinders; they must remain politically sensitive. Politics should not be avoided but managed in a nuanced way pursuant to effective board oversight of ERM. Companies must contend with courts of law and the court of public opinion, each with its own distinct rules. Missteps in the latter may injure the corporation more seriously than unfavorable judgments in the former. The failure to manage political risk is not in the best interests of the corporation. This article adds to the legal literature in three important areas. First, it situates political risk within the contemporary ERM discussion. Second, it re-examines how corporations engage with politics in the contemporary context. Finally, it contributes to theories that posit the large modern corporation as a quasi-public institution and argues, with some caveats, that it functions as a quasi-political institution, mandating more robust board oversight of political risks.

Zasloff on the Civil Right to Counsel in India

Jonathan Zasloff (University of California, Los Angeles (UCLA) - School of Law) has posted On “Enforceable” Directive Principles: The Emerging Civil Right to Counsel in India on SSRN.  Here is the abstract:

This Article challenges one of the most robust commonplaces in the study of Indian Constitutional Law, viz. that Directive Principles of State Policy under Article IV cannot be enforced by the judiciary. Through a careful reading of the Constitution’s text and structure, as well as an investigation of relevant common-law precedents, it argues: 1) Article 39A commands “the State” to promote justice on the basis of equal opportunity, in particular through legal services enacted through legislation or other methods; 2) The judiciary is part of the State that Article 39A commands; 3) Courts, then, must use their powers to fulfill Article 39A even if that Article is not judicially enforceable; 4) The judiciary has authority over the maintenance and integrity of the legal system; 5) It also has its own authority to spend money to maintain and improve that system; and 6) it has the authority to allocate funds to pay lawyers and other legal personnel in civil cases if it believes that doing so will strengthen the legal system and fulfill its Article 39A mandate. The Constitution’s promise of the right to counsel in civil cases thus lies well within the judicial power to accomplish. The Article suggests areas where the judiciary should use this power, e.g. family law, housing, and the environment. It also raises important questions about the very nature of Directive Principles and the meaning of judicial “enforcement.”

Legal Theory Lexicon: Vagueness and Ambiguity

Introduction

This week the Legal Theory Lexicon entry focuses on "ambiguity" and "vagueness"--two important concepts for the theory of interpretation.  Some legal texts are ambiguous--they contain words or phrases that can have two or more distinct meanings.  And some legal texts are vague--they use concepts that have indefinite application to particular cases.  And some legal texts are both vague and ambiguous--they have multiple meanings, some (or all) of which have indefinite applications.  Because "vagueness" and "ambiguity" are basic concepts in the theory of interpretation, its important to master each of them and to understand the difference between them.

As always, this entry in the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

Vagueness  

What does it mean to say that a concept, term, or phrase is vague?  Let's start with some examples and then try for an elucidation of the concept.  "Tall" is a good example of a vague concept.  Some humans are definitely not tall--Danny DeVito, for example.  Others definitely are tall--Boban Marjanović, for one.  But the term "tall" is vague.  5'11 is almost definitely tall for a woman in the United Sates, but might be a borderline case for men.  "Tall" is not the sort of quality for which there are definite criteria that sort the world into "tall" things and "not tall" things.  In other words, "tall" is vague.

There are lot's of terms that are like tall: short, strong, weak, beautiful, ugly, heavy, light, warm, and cool--all of these are terms that seem to have borderline cases.  And that is one way that we might define vagueness.  A term is vague, we might say, if and only if it has borderline cases.  A term is not vague just in case it has no borderline cases.

As you might guess, the fact of vagueness creates a variety of issues in the philosophy of language.  Is vagueness built into the fabric of the universe?  Or is vagueness merely a feature of the imprecision of human language?  Is vagueness a property of things?  Or is it a property of our knowledge of things?  We won't worry about these deep questions.  For the purposes of this rough and ready introduction, it is sufficient simply to see that there are such problems and that a philosophical theory of vagueness should propose to answers to them or show that they aren't true problems at all.

Ambiguity  

What about "ambiguity"?  A word or phrase is ambiguous if it has more than one meaning.  Take "cool" for example.  One meaning of "cool" has to do with temperature, and in this sense, "cool" contrasts with "warm," "cold," and "hot."  Another meaning of "cool" has to do with fashion and social attractiveness.  And there are other senses of "cool" as well, as in, he kept his cool in a very pressured situation.  So, the word "cool" is ambiguous because it has multiple senses, with each sense representing a different concept.

In a particular context, the meaning of an ambiguous term may be clear.  In the sentence "He's one cool dude," the word "cool" is likely to refer to social attractiveness and not temperature.  By considering the word "cool" in the context of the whole sentence, we are able to disambiguate and identify the relevant sense of "cool."  But in some contexts, the ambiguity may be difficult to resolve: "The aviation is a cool drink" could refer either to the fact that aviations are served chilled but not icee cold or to the fact that mojitos are fashionable and popular among some social groups.

And this last example, "cool" can be used to illustrate the fact that the same term can be both vague and ambiguous in the same context.  If I say, "Bring me a cool drink!", my utterance may be both ambiguous--do I mean fashionable or coldish?--and vague--how far below room temperature is "cool" or are aviations still "cool" or are they now "out of style"?

Interpretation of Vague or Ambiguous Texts 

Now that we have a basic grasp of vagueness and ambiguity, we are in a position to see that each of these two concepts has a role to play in a theory of the interpretation of legal texts.

Many legal texts are vague.  In fact, most law students become very familiar with a variety of vague terms early in their law school careers.  Take "reasonable"--was the tort defendant's conduct "reasonable" under the circumstances?  There will be clear cases of unreasonable conduct: driving 150 mph in a residential area.  But there will also be borderline cases.  Was it reasonable to drive at 55 mph in a light fog?

Some legal language general, abstract, and vague.  For example, the phrase "equal protection" in the 14th amendment of the United States Constitution might refer to a very general and abstract idea of equality.  Given this generality and abstraction, it might be that the "borderline" cases seem to make up the whole of equal protection doctrine.  What would count as a clear example of "equal" or of "unequal"?  In a common law system, general and abstract language may be translated into relatively more particular and concrete rules through case-by-case adjudication.

Vagueness is ubiquitous in the law, and frequently legal actors (courts and others who apply the law) must resolve borderline cases.  Every law student is familiar with the strategies that are employed, which include case-by-case balancing tests, supplementary doctrines that provide bright-line rules to implement vague legal texts, and so forth.

Ambiguity may be less common, because many potentially ambiguous terms or phrases are disambiguated by context.  "Seizure" can refer to a physical taking or it can refer to a medical symptom, but in the Fourth Amendment of the United States Constitution, it is clear that the correct meaning is the former rather than the latter.

Beyond Vagueness and Ambiguity

Both vagueness and ambiguity can be viewed as forms of underdetermination: the communicative content of a legal text cannot fully determine the legal effect of the text if the communicative content is vague or irreducibly ambiguous.  But there may be other forms of underdetermination.  Some texts may be "open textured" and others may have multidimensional content with dimensions that are incommensurable.  And there may be other forms of underdetermination as well.  These phenomena require their own Lexicon entry.

Relationship to the Interpretation-Construction Distinction

The distinction between vagueness and ambiguity is related to the interpretation-construction distinction--discussed in a separate entry in the Legal Theory Lexicon.  Roughly, the distinction is that interpretation of a text aims at recovering its linguistic meaning or semantic content. Construction involves the "tranlation" of the semantic content into legal content: we we construe a legal text we formulating legal rules that enable application of the text to particular cases.

Interpretation and Ambiguity--In many cases, problems of interpretation involve ambiguity: a legal text uses a word with more than one meaning and the interpreter looks to context to resolve the ambiguity.

Construction and Vagueness--But when a text is vague, it is usually the case that interpretation cannot resolve the vagueness.  Why not?  Because interpretation only can take us as far as the meaning of the text: if the linguistic meaning is vague, then something else will be required if we must apply the text to a particular case.  Construction allows legal actors (e.g., judges) to devise a supplementary rule or procedure that resolves the vagueness.  Thus, a legal text may supply a vague standard ("freedom of speech"), but construction may yield a more particular rule ("no prior restraints").  (There is a Lexicon entry on rules, standards, and principles.)

An Example: Ambiguity and Vagueness in Chevron

Why is the ambiguity-vagueness distinction important?  Does the distinction make any practical difference?  We can approach these questions via an exploration of the role of the word "ambiguity" in the famous Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the case that gave rise to what is called the "Chevron Doctrine."  In a super-simplified nutshell, the Chevron Doctrine requires courts to defer to "interpretations" of statutes by administrative agencies when a statute is "ambiguous."  But as Professor Cass Sunstein and I show in an article entitled "Chevron as Construction," the Chevron case itself actually involved a provision that was vague or open-textured.  The problem in Chevron wasn't that some word or phrase in the statute had multiple sense, but instead involved an agency making a judgment about how to precisfy an underdeterminate provision.  Then, decisions subsequent to Chevron extended the doctrine to cases in which the language of the statute was ambiguous (multiple senses).  Much of the criticism of Chevron focuses on these cases, where deference to the agency seems inconsistent with the traditional notion that statutory interpretation (determinations of meaning) is the province of judges and not administrative agencies.

Conclusion

"Vagueness" and "ambiguity" are important concepts in the theory of legal interpretation generally, and as a consequence, they are important to constitutional theory and the theory of statutory interpretation.  I hope this Lexicon entry has clarified the distinction between these two concepts.

Related Lexicon Entries

• Legal Theory Lexicon 063: Interpretation and Construction

Resources on the Internet

• Lawrence B. Solum & Cass R. Sunstein, Chevron as Construction, 105 Cornell Law Review 1465 (2020). 
• Roy Sorensen, Vagueness, Stanford Encyclopedia of Philosophy (2006).
• Adam Sennett, Ambiguity, Stanford Encyclopedia of Philosophy (2011).
• Dominic Hyde, Sorites Paradox, Stanford Encyclopedia of Philosophy (2005).
• Wikipedia Article on Vagueness
• Vagueness in Law by Timothy A. O. Endicott

Bibliography

• Timothy A.O. Endicott, Vagueness in Law  (Oxford University Press, 2001)
• Cuts and Clouds: Vaguenesss, its Nature and its Logic  (Richard Dietz & Sebastiano Moruzzi eds., Oxford Press, 2010).
• Vagueness: A Reader  (Rosanna Keefe & Peter Smith eds., MIT Press, 1999)
• Timothy Williamson, <Vagueness (Problems of Philosophy) New Edition by Williamson, Timothy published by Routledge Paperback  (Routledge, 1996)
• Israel Scheffler, Beyond the Letter (Routledge Revivals): A Philosophical Inquiry into Ambiguity, Vagueness and Methaphor in Language  (Routledge, 2010)
• Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation in The Oxford Handbook of Language and Law, Lawrence Solan & Peter Tiersma, eds., Oxford University Press, 2012).
• Scott Soames, Vagueness and the Law in The Routledge Companion to Philosophy of Law (Andrei Marmor ed. 2012).

(This entry was last revised on January 23, 2022.)

Legal Theory Bookworm: "Research Handbook on Law and Marxism," edited by O’Connell & Özsu

The Legal Theory Bookworm recommends Research Handbook on Law and Marxism, edited by Paul O’Connell & Umut Özsu.  Here is a description:

This Research Handbook offers unparalleled insights into the large-scale resurgence of interest in Marx and Marxism in recent years, with contributions devoted specifically to Marxist critiques of law, rights, and the state.

The Research Handbook brings together thirty-three scholars of Marx, Marxism, and law from around the world to offer theoretically informed introductions to the Marxist tradition of social critique, contemporary Marxist analyses of law and rights, and future orientations of Marxist legal analysis. Chapters testify to the strength of Marxist critical tools for understanding the role of law, rights, and the state in capitalist societies.

Exploring Marxist critique across an extraordinarily wide range of scholarly disciplines, this Research Handbook is a must-read for scholars of law, politics, sociology, philosophy, and political economy who are interested in Marxism. Graduate and advanced undergraduate students in these and related disciplines will also benefit from the Research Handbook.

And from the reviews:

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‘The modestly titled Research Handbook on Law and Marxism is in fact a pioneering venture that brings together as many as 29 contributions on a wide range of subjects relating to law, seen through the analytical prism of Marxism. It will prove to be a useful reference point for students and seasoned writers alike. -- Utsa Patnaik, Professor Emerita, Jawaharlal Nehru University, India

‘This volume displays the breadth and vitality of research on law from within the traditions of Marxism. Written from many different perspectives and by a healthy mix of eminent and emerging scholars, the essays collected here ably guide the reader through a century and a half of debates and controversies. These are debates both among Marxists about the status, import, and structure of the law and modern legal institutions, and between Marxists and non-Marxist legal scholars, collectively demonstrating that Marxism has indelibly shaped legal theory, constitutional theory, the theory of the state, and the theory of international law. This will undoubtedly be my new go-to reference volume on all questions pertaining to Marxism and legal studies.’ -- William Clare Roberts, McGill University, Canada

‘Paul O’Connell and Umut Özsu have done a great service to all scholars of Marxism. They have assembled a comprehensive volume that includes contributions of both noted experts and brilliant young researchers and that fills a void in the existing literature. The outcome is a wonderful Handbook that is useful for both specialists and readers who approach Marxism and law for the first time. This book will serve as a guide in the field for many years to come.’ -- Marcello Musto, York University, Canada

Download of the Week: "Who Has the Power to Enforce Private Rights?" by Stone

The Download of the Week is Who Has the Power to Enforce Private Rights? by Rebecca Stone.  Here is the abstract:

I argue that corrective justice theorists of private law (at least those who view corrective justice as instantiating a Kantian conception of political morality) cannot successfully account, except in a stipulative way, for a central structural feature of the private law landscape: the correlative structure of private law litigation—the fact that the plaintiff must initiate and maintain proceedings against the defendant in order to vindicate her rights. Corrective justice theory readily explains why a defendant has a duty to correct his infringement of the plaintiff’s rights, but it doesn’t so readily explain why the plaintiff has the power to decide whether any such duty gets enforced.

I sketch an alternative explanation that can explain why the plaintiff should have the power. Because realising justice is a difficult task even for a polity in which most people are committed to the project, persons' private legal rights in a moderately non-ideal polity should be regarded as provisional determinations of what justice entitles them to that are subject to revision as the community makes progress towards realising justice. The relational norms of private law, given that they take persons’ entitlements as given for the most part, should be regarded in a similar light. But if the norms of private law are therefore properly regarded as only provisional wrongs, the legal system ought to make room for plaintiffs and defendants to negotiate about the appropriate response to a defendant’s legal wrongdoing in the light of their own, perhaps superior, conception of what justice between them requires. This in turn suggests that the legal system ought not to enforce private rights directly. Instead it should give the parties some latitude to figure things out for themselves. It does this by giving the victim the authority to decide whether to enforce her legal rights, thus enabling her to decide whether to seek the remedy she might be legally entitled to or instead obtain another resolution of the dispute with the defendant that, at least in the parties’ eyes, better realises justice between them.

Highly recommended.

Lee on Equitable Compensation for Takings

Brian A. Lee (Brooklyn Law School) has posted “Equitable Compensation” as “Just Compensation” for Takings (Brigham-Kanner Property Rights Conf. J., Vol. 10, p. 315 (2021)) on SSRN.  Here is the abstract:

The Fifth Amendment’s requirement that the government pay “just compensation” to owners of taken property is typically assumed to mean “full” compensation, equivalent to the taken property’s fair market value. In this symposium contribution to the Brigham-Kanner Property Rights Journal, I explore an often overlooked alternative understanding of “just compensation” for takings, one freed from automatic equation with full, fair-market-value compensation. Rooted in traditional equity, this “equitable compensation” alternative has significant historical roots, starting with the Fifth Amendment’s drafters’ striking choice not to follow the Northwest Ordinance of 1787’s requirement of “full” compensation, and running through a line of cases and commentary that has emphasized takings compensation’s equitable nature. I argue that recognizing takings compensation’s equitable dimension—particularly equity’s attention to reciprocal obligations—can help takings law more naturally respond to thorny difficulties caused by specific rigidities in takings doctrine, rigidities that create challenges when takings doctrine is forced to address situations that differ from core cases of eminent domain. Attending to the relative weights of parties’ reciprocal duties, and equitably adjusting compensation in response, can help resolve such cases more plausibly, including takings for private projects with public benefits (as in Kelo v. New London) and regulatory takings.

Hesselink on Multi-Pluralist Private Law Theory

Martijn W. Hesselink (European University Institute; University of Amsterdam) has posted Anything Goes in Private Law Theory? On the Epistemic and Ontological Commitments of Private Law Multi-pluralism on SSRN.  Here is the abstract:

This paper argues that the New Private Law Theory (NPLT) recently proposed by Grundmann, Micklitz, and Renner is radically multi-pluralist, in that it combines pluralism along a multitude of dimensions with the absence of any organising or constraining principle on the metalevel. Consequently, the NPLT makes no epistemic commitments about private law truth or ontological commitments about private law reality. The paper raises the question of whether a theory which makes no such commitments is a theory at all. Indeed, a site where quite divergent epistemic and ontological commitments are equally acceptable is not usually referred to as a theory but as a democracy. Therefore, the paper discusses how NPLT could be turned into a democratic theory of private law. It concludes that to that end NPLT’s selection of materials should be more diverse, in particular less economically oriented, less Eurocentric, and more inclusive of various critical perspectives.

Gröning, Haukvik, Morse, & Radovic on the Norwegian Medical Model of Criminal Insantity

Linda Gröning (University of Bergen - Faculty of Law), Unn K. Haukvik (Adult Psychiatry Unit, University of Oslo), Stephen Morse (University of Pennsylvania Carey Law School), & Susanna Radovic (Department of Philosophy, Linguistics, Theory of Science, University of Gothenburg) have posted Remodelling criminal insanity: Exploring philosophical, legal, and medical premises of the medical model used in Norwegian law (International Journal of Law and Psychiatry (Forthcoming)) on SSRN.  Here is the abstract:

This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis can illuminate the law's understanding of insanity and its relation to mental disorder. The authors eventually raise the question whether the medical model can be reconstructed into a unified insanity model that is valid across the related disciplinary perspectives, and that moves beyond current insanity models.

Highly recommended.

d'Aspremont on the Temporality of International Law

Jean d'Aspremont (Sciences Po Law School; University of Manchester - School of Law) has posted Time Travel in the Law of International Responsibility (in Samantha Besson (ed.), Theories of International Responsibility Law (Cambridge University Press, 2022)) on SSRN.  Here is the abstract:

This paper grapples with the temporality which international law produces and puts the emphasis on the role which the doctrine of international responsibility plays therein. This paper particularly argues that the doctrine of international responsibility, while preserving the seriality and linearity of the temporality of international law, suspends the latter’s one-directionality by allowing anyone invoking or mobilizing the doctrine of international responsibility to travel back and forth between the past of the wrongfulness and the present of responsibility. According to this argument, international responsibility thus enables a two-directional temporality. This paper shows that such two-directional temporality constitutes a discursive device at the service of the narrative function of international responsibility.

Pill on Jewish Law Antecedents to American Constitutional Thought

Shlomo Pill (Emory University School of Law) has posted Jewish Law Antecedents to American Constitutional Thought (Mississippi Law Journal, Vol. 85, No. 3, 2016) on SSRN.  Here is the abstract:

This Paper explores how the political and legal theories that drove the Framers' drafting and ultimately ratifying the United States Constitution were not merely a reflection of post-Reformation political theory grounded in homiletic rabbinic literature. Rather, constitutional principles, including equality, constitutional government, popular sovereignty, and federalism are substantially present in legalistic Jewish writings as well. In drawing upon major halachic sources, including the Talmud, Mishnah Torah, Arbah Turim, and Shulchan Aruch, as well as responsa literature, this Paper demonstrates that Jewish law decisors have long grappled with and applied these principles in governing local Jewish communal life and national Jewish affairs.

Cahn & Suter on Regulating Assisted Reproductive Technologies

Naomi Cahn (University of Virginia School of Law) & Sonia M. Suter (The George Washington University Law School) have posted The Art of Regulating ART (Chicago-Kent Law Review, Vol. 96, No. 29, 2021) on SSRN.  Here is the abstract:

This article examines the technologies of pre-implantation genetic testing (PGT) and germline gene editing (GGE) and the different potential approaches to their regulation. The regulatory issues sweep quite broadly. They involve not just the medical risks, which are relatively straightforward, but also broader social concerns about access to the technologies, equality and discrimination, implications for the disability community, eugenics, and exceptionalizing assisted reproductive technologies (ART) as compared with non-ART reproduction.

We explore the potential regulatory approaches that might be used for the two technologies, noting the benefits and limits of each approach. While conceding some differences between the two technologies, we argue that PGT and GGE as well as other forms of ART should be regulated together. We therefore suggest two possible models for such comprehensive regulation, including a revamping of the FDA or the creation of a new regulatory entity altogether. Finally, we conclude by recognizing the particularly challenging aspects of such regulation, which raise constitutional and normative issues, including the relationship between such regulation and contested political issues relating to equality, disability rights, distinctions between reproduction in and outside the bedroom, and the imposition of majoritarian values on deeply personal decisions.

Shaffer on "From colonial to multilateral international law" by Alter

Gregory Shaffer (University of California, Irvine School of Law) has posted Afterword: Capitalism, International Law, Race, and China’s Rise (International Journal of Constitutional Law, Vol. 20, No. 1, 2022, forthcoming) on SSRN.  Here is the abstract:

Karen Alter’s rich article, “From colonial to multilateral international law: A global capitalism and law investigation,” develops an important research agenda regarding capitalism, and its impact on what she calls “global economic law.” This Afterword builds on Alter’s essay to make four points. First, it compares Alter’s framework of international regime complexes with the framework of transnational legal orders that has been applied to a wide spectrum of issues. It shows how the latter framework is necessary to supplement Alter’s regime framework. Second, it subjects Alter’s concluding argument in favor of multilateralism to a comparative institutional perspective, which foregrounds considerations that Alter’s essay elides. It notes the contexts in which multilateral international law is, or is not, a preferred approach. Third, it substantially qualifies Alter’s concluding prediction regarding continuity with China’s rise. It stresses the implications of China’s combination of state capitalism and political authoritarianism, coupled with other transnational trends, including within the United States. Fourth, it notes her lack of engagement with the issue of race and international law, which is present in its absence, on which the framework of transnational legal orders sheds greater light.