Legal Theory Blog

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.

Schmidt on the Emergence of the Supreme Court as a Voice in Constitutional Conversation

Thomas P. Schmidt (Columbia University - Law School) has posted Courts in Conversation (Michigan State Law Review, Forthcoming) on SSRN.  Here is the abstract:

This essay, written for a symposium on Akhil Reed Amar’s The Words That Made Us, explores how the judiciary transformed from a barely audible to a vociferous participant in America’s constitutional conversation in the period covered by Amar’s book. The emergence of written constitutions with special democratic authority offered a judicially tractable source of limits on government power. Then, after the Federal Constitution went into effect, the early Supreme Court Justices made a set of critical institutional choices that both strengthened the judicial voice and made it distinct from the other branches: They separated themselves from the President and his cabinet, suppressed overt partisanship, and started to speak through unified and elaborately reasoned “opinions of the Court” that were disseminated in official reports. These changes, I argue, remain the backbone of the Court’s institutional identity, and enabled the Court to achieve the preeminence it now enjoys in our constitutional conversation.

Kampourakis on Law & Political Economy in Europe

Ioannis Kampourakis (Erasmus University Rotterdam (EUR) - Erasmus School of Law) has posted Bound by the Economic Constitution: Notes for “Law and Political Economy” in Europe (Journal of Law and Political Economy (2021) 1(2), 301-332) on SSRN. Here is the abstract:

The aspiration of this article is to start a conversation about the possible contribution of a Law and Political Economy research agenda in Europe. I first unpack the role of law in structuring the economy at the supranational level by examining the legacy of ordoliberalism and the Economic Constitution of the EU as the normative project of insulating the internal market from political contestation. I then attempt to map the critical approaches that challenge the depoliticization of the economy and constitute the backdrop for an emerging LPE agenda. In particular, I discuss negative universalism, which focuses on the legal form as a limit to power and as enabling particular causes to make claims in universal terms; instrumentalism, which favors politicizing the law to advance egalitarian agendas; and counter-hegemony, which looks to civil society and to social transformation beyond the state. Concluding with a call for pragmatic and contextual critical practice, I attempt to carve out a space for an LPE in Europe agenda rooted in the normative commitment to democracy and equality as a form of immanent critique, in the aspiration to use institutions for social transformation, and in an orientation towards democratic power-building.

Liao, Sjåfjell, & Argyrou on Corporate Law & Sustainability

Carol Liao (Peter A. Allard School of Law), Beate Sjåfjell (University of Oslo - Faculty of Law), & Aikaterini Argyrou (Utrecht University, School of Law, Students; Nyenrode Business University) have posted Corporate Law and Sustainability in a Reimagined Post-Pandemic World (Chapter 13 in Beate Sjåfjell, Carol Liao and Aikaterini Argyrou (eds), Innovating Business for Sustainability: Regulatory Approaches in the Anthropocene (Edward Elgar Publishing, forthcoming 2022)) on SSRN.  Here is the abstract:

This concluding draws together and reflects on the volume’s analysis of the current failures of widespread legal thinking and practice, along with meaningful alternatives to the status quo on both conceptual and concrete levels. It is only through unlearning and relearning that we can forge a new baseline in the field that we broadly refer to as corporate law. The chapter – and the volume – concludes with a conviction that regulatory approaches and conversations about justice and sustainability in the Anthropocene will need to shift away from the current anthropocentric approach to both problems and solutions. Readers are invited together with the editors to broaden their outlook and open their hearts to each and every element, human and non-human, of the social-ecological systems of this wonderful world to be able to find pathways to sustainability – not only for the future, which always can be said to be ahead of us in time, but also to start moving on pathways to sustainability right here and now.

Kim on Mandating Board Diversity

Sung Eun (Summer) Kim (University of California, Irvine School of Law) has posted Mandating Board Diversity (Indiana Law Journal & The Supplement, Vol. 97, 2021) on SSRN.  Here is the abstract:

California’s Assembly Bill 979 (AB-979) requires companies that are based in California to have a specified minimum number of directors from underrepresented communities. A “director from an underrepresented community” is defined as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender. AB-979 received much attention for being the first law to mandate greater diversity on corporate boards in terms of race and sexual orientation. Senate Bill 826 (SB-826), which was introduced two years prior, was the first U.S. legislative effort to mandate greater gender diversity on corporate boards. AB-979 and SB-826 have received both intense praise and vehement criticism. The debate over the California board diversity bills raises fundamental questions about the proper role of the state in using its power to regulate corporations to advance public values. In this Article, I summarize and respond to the various legal challenges that have been raised against California’s board diversity bills and argue that the precedent-setting efforts of the California legislature are consistent with the original design of corporate law in the United States, which is built on a model of federalism and state competition.

Beermann on a Counter Factual History of the 1876 Presidential Election

Jack Michael Beermann (Boston University School of Law) has posted The 1876 Election: A Fictionalized Account on SSRN.  Here is the abstract:

After the 1985 death of Robert Todd Lincoln Beckwith extinguished the Lincoln line a lengthy manuscript, containing this episode, was found among his papers. The manuscript was inscribed with these words: “This is a history of what might have been. Real places and names have been used but many of the details, including widely-known events and personalities, have been fictionalized. My hope is that someday, many years from now, historians might discover this manuscript and become confused.” The identity of the author is not revealed.

This is a fictionalized version of the Electoral Commission’s proceedings and the proceedings in Congress that led to the election of Republican Rutherford B. Hayes as President despite the fact that Democrat Samuel Tilden received a majority of the popular votes, the only person to have received a majority and not been elected President. It is part of a larger work of fiction addressing what might have happened in the civil rights arena if Abraham Lincoln had served two full terms as President and gone on to become Chief Justice of the Supreme Court of the United States.

Hamburger on Nondelegation

Philip Hamburger (Columbia University - Law School) has posted Nondelegation Blues on SSRN.  Here is the abstract:

The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power,. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.

This Article examines the Constitution’s treatment of the problem. Whereas other scholarship tends to focus narrowly on a single concept, whether delegation or vesting, this piece takes a more ecumenical approach. It uncovers layers of relevant concepts, showing how each contributes to the Constitution’s vision.

For example, it is necessary to consider the principles of consent, different powers, separation, and exclusivity before one gets to delegation. Although the Framers voted against permitting any congressional delegation, they did not rest content with delegation language. Instead, they drafted the Constitution in terms of vesting. But not just vesting, for Constitution says that its powers “shall be vested.” Far from merely a transfer of the powers, this was an express declaration of their mandatory location.

The Article thereby goes far beyond existing scholarship in showing how fundamental principles, drafting assumptions, and text were all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination of underlying principles, framing assumptions, and text.

The Article also shows the refinement of the Constitution’s approach. The Constitution’s sophistication has not been much appreciated in the scholarly literature. But it will be seen that the Constitution was anything but crude in barring transfers of powers. For example, it adopted the separation of powers not in an absolute way, but as a default principle. While it precluded the transfer of legislative power, it left much room for executive rulemaking. Even though its powers were externally exclusive, they were not always exclusive internally—that is, some of them could be subdelegated within the branches of government. And the eternally exclusive powers permitted much nonexclusive authority to be exercised under those powers. Wherever one stands on the transfer of legislative power, these distinctions are important and need to be recognized as qualifying the larger point about the location of legislative power.

Not merely a technical doctrinal question about the distribution of powers, the problem here is bound up with more visceral social and political values. Judges and academics tend to discuss it if it were merely a matter of doctrine, unconnected to larger questions of expanded suffrage and untainted by unwholesome animosities. But this fails to acknowledge the underlying legacy of prejudice and the enduring reality of discrimination and disenfranchisement.

Highly recommended.

Swanson on Intersectionality & the Patent Archive

Kara W. Swanson (Northeastern University - School of Law) has posted Inventing While a Black Woman: Passing and the Patent Archive (25 Stanford Technology Law Review, Forthcoming) on SSRN.  Here is the abstract:

This Article uses historical methodology to reframe persistent race and gender gaps in patent rates as archival silences. Gaps are absences, positioning the missing as failed non-participants. By centering Black women and letting the silences fill with whispered stories, this Article upends our understanding of the patent archive as an accurate record of US invention and reveals powerful truths about the creativity, accomplishments, and patent savviness of Black women and others excluded from the status of “inventor.” Exposing the patent system as raced and gendered terrain, it argues that marginalized inventors participated in invention and patenting by situational passing. It rewrites the legal history of the true inventor doctrine to include the unappreciated ways in which white men used false non-inventors to receive patents as a convenient form of assignment. It argues that marginalized inventors adopted this practice, risking the sanction of patent invalidity, to avoid bias and stigma in the patent office and the marketplace. The Article analyzes patent passing in the context of the legacy of slavery and coverture that constrained all marginalized inventors. Passing, while an act of creative adaptation, also entailed loss. Individual inventors gave up the public status of inventor and also, often, the full value of their inventions. Cumulatively, the practice amplified the patent gaps, systematically overrepresenting white men and thus reinforcing the biases marginalized inventors sought to avoid. The Article further argues that false inventors were used as a means of appropriating the inventions of marginalized inventors. This research provides needed context to the current effort to remedy patent gaps. Through its intersectional approach, it also brings patent law into broader conversations about how law has supported systemic racism and sexism and contributed to societal inequality.

Heise on Traffic Stops, Race, and Gender

Michael Heise (Cornell Law School) has posted Driving While Black (or Female); Policing While White (or Male): Bringing Data to Police/Driver Pairings and Traffic Stop Outcomes on SSRN.  Here is the abstract:

The weight of existing research focusing on distributional concerns arising out of the police-initiated traffic stop context and their outcomes focuses on drivers’ race and gender. Such a research focus, however, largely ignores the potential influence of police officers’ race and gender. Broadening the research focus on the complex dynamics incident to the police-initiated traffic stop context would permit more granular analyses of how key police officer and driver race and gender pairings interact. More specifically, if one expects that black drivers are systematically disadvantaged in traffic stop outcomes owing to racial animus, this disadvantage should be especially acute when the police officer initiating the traffic stop is white. Likewise, if gender stereotypes contribute to systematically more favorable traffic stop outcomes for female drivers, this advantage should be particularly evident when the police office is male. Despite a research design that self-consciously tilts in favor of finding distributional concerns flowing from traffic stops by focusing on two police/driver race and gender pairings where expectations for evidence of systematic bias are at their highest, results from this study indicate that neither pairing’s influence achieves statistical significance. That is to say, the received conventional wisdoms regarding a disturbing influence—and interaction—of police/driver race and gender pairings in the police-initiated traffic stop context do not find empirical support from the null results in this study. What factors do emerge as important, however, include various reasons motivating traffic stops, police officer gender, and driver age.

Highly recommended.

Stone on the Power to Enforce Private Rights

Rebecca Stone (University of California, Los Angeles (UCLA) - School of Law) has posted Who Has the Power to Enforce Private Rights? (in Oxford Studies in Private Law Theory Volume 2 (Paul B Miller and John Oberdiek eds., Forthcoming) on SSRN.  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.

George, Yoon, & Gulati on Gender, Credentials, and M&A Lawyer Leadership Roles

Tracey E. George (Vanderbilt University - Law School), Albert Yoon (University of Toronto - Faculty of Law), & Mitu Gulati (University of Virginia School of Law) have posted Gender, Credentials and M&A on SSRN.  Here is the abstract:

Since the 1990s, women have made up roughly half of law school classes. Attrition between entry to law firms and partnership results in women comprising 20 and 25 percent of partners. But who makes it to the top of the partnership? Is there yet more gendered attrition? Constructing a unique dataset of publicly-filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10 percent of deal leaders. When we look at the factors that determine who becomes a deal leader we find that credentials – both educational and professional – matter. But they matter more for women. And one credential – attending a top law school – seems to matter a lot. Using conversations with senior lawyers, we try to get at some answers for why.

Highly recommended.

Meers, Halliday, & Tomlinson on Creative Non-Compliance & Lockdowns

Jed Meers (University of York, York Law School), Simon Halliday (University of York), & Joe Tomlinson (University of York; Public Law Project) have posted 'Creative Non-Compliance': Complying with the 'Spirit of the Law' not the 'Letter of the Law' under the COVID-19 Lockdown Restrictions (Forthcoming in Deviant Behavior) on SSRN.  Here is the abstract:

This paper identifies a form of non-compliance with COVID-19 lockdown restrictions in the UK: “creative non-compliance”. Here, individuals justify breaking restrictions as meeting the “spirit of the law” if not the “letter of the law”. Drawing on interview and focus group data collected between April and August 2020 in the UK, we outline this concept of “creative non-compliance”, detailing how: (i) our participants undertook a purposive construction of rules, (ii) balanced their behaviour against these aims, and (iii) how Government messaging informed these rationalizations. We conclude by outlining the implications of our “creative non-compliance” theory both for studies of compliance and rationalizations for deviant behaviour under the COVID-19 restrictions.

Garnett on Jurisdictional Determinations & Issue Preclusion

Richard Garnett (University of Melbourne - Law School) has posted Recognition of Jurisdictional Determinations by Foreign Courts (Journal of Private International Law) on SSRN.  Here is the abstract:

Parties have occasionally sought to use findings on jurisdiction made by a court in one country to preclude re-litigation of the same matter elsewhere. In common law countries the traditional means by which this tactic has been employed is the doctrine of issue estoppel. The aim of this article is to assess the extent to which jurisdictional determinations by foreign courts can have binding effects in other countries.

Oren on No-Fault Divorce Reform & the National Association of Women Lawyers

Laura E. Oren (University of Houston Law Center) has posted No-Fault Divorce Reform in the 1950s: The Lost History of the 'Greatest Project' of the National Association of Women Lawyers on SSRN.  Here is the abstract:

In the 1950s, the National Association of Women Lawyers (“NAWL”) undertook what it considered its 'greatest project', the drafting and promotion of a model no-fault divorce law. It launched its campaign at a time when post-war realities and the law in practice were putting increasing pressure on the law on the books which lagged behind contemporary sensibilities. NAWL acted two decades before the no-fault divorce 'revolution' of the 1970s. It did so in the 1950s when women were said to be both 'domestic' and 'quiescent'.

The Article has three aims. First, it considers NAWL’s project as a missing piece in the history of divorce law, the no-fault revolution, and the rise of mass divorce in mid-twentieth century America. Second, it reflects on the implications of NAWL’s undertaking for the standard narrative of 'domesticity' in the 1950s, an account that has been questioned in recent years. Last, it tells a story of women’s activism in the depth of the so-called 'doldrums' of the organized women’s movement. Focusing on NAWL’s 'greatest project', this Article demonstrates the fallacies of an Equal Rights Amendment-centric account of women’s activism in the 1950s. It contributes to the evidence of continuity and transition that has led historians to question the 'waves' theory of women’s movement history.

Somin on Judicial Review & Foot Voting

Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) has posted How Judicial Review Can Help Empower People to Vote with Their Feet (George Mason Law Review, Forthcoming (Symposium on “Does the Will of the People Exist?”)) on SSRN.  Here is the abstract:

For decades, critics of judicial review have argued that it inhibits the will of the people, expressed through laws and regulations enacted by democratically elected officials. Thus, they argue, it should be used sparingly, or perhaps even not at all. This critique implicitly assumes that the political freedom of the people is best expressed through ballot box voting. We elect government officials, and thereby decide what government policies they wish to live under. Judicial review must therefore be kept within strict bounds, if not eliminated entirely, in order to avoid infringing on democratic self-government. This Article challenges that assumption and instead suggest that political choice is often best expressed through foot voting, rather than ballot-box voting. That, in turn, strengthens the case for strong judicial review in a range of areas.

People can vote with their feet through international migration, by choosing what jurisdiction to live in within a federal system, and by making decisions in the private sector. All three types can be enhanced by judicial review. Instead of a singular collective “will of the people,” foot voting enables individual members of the public to pursue a wide range of policy preferences. As a result, it allows far more people to live under policies that they prefer, and reduces the disadvantages faced by minorities.

Part I of this Article summarizes the advantages of foot voting over ballot box voting as a mode of political choice. In particular, foot voting enables individuals to make decisions that are more likely to have a decisive impact in determining the policies they live and more likely to be well-informed. It also offers a wider range of choice to people with minority preferences. Part II provides a brief overview of the three types of foot voting. Part III explains how judicial review can empower foot voting within a federal system by enforcing structural constitutional limits on the scope of federal government power. Part IV describes how judicial review can enhance foot voting in both the public and private sector by enforcing individual rights that make foot voting more feasible and effective. Finally, Part V discusses how judicial review can enhance foot voting through international migration.

Foot voting is not the only factor that must be considered in determining the appropriate level of judicial review in a constitutional system. But it is a crucial issue that often gets overlooked in debates over the role of the judiciary in a democratic society.

Highly recommended.

Stone on Gardner on Corrective Justice

Rebecca Stone (University of California, Los Angeles (UCLA) - School of Law) has posted Distributing Corrective Justice (Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (Haris Psarras & Sandy Steel eds., Oxford University Press, Forthcoming) on SSRN.  Here is the abstract:

John Gardner argues that while corrective justice is not about doing distributive justice, when we create a system of tort law that gives wronged persons a legal right to corrective justice, we inevitably confront an important question of distributive justice: does 'the system justly distribute access to the corrective justice it dispenses'. It would be distributivity unjust were the system to give one person the legal right to corrective justice of some wrong without giving the same to similarly situated others. At the same time, Gardner contends, the good that tort law is distributing here is 'irreducibly corrective … [which] lends a certain explanatory priority to corrective over distributive justice'.

Is it puzzling to understand corrective justice in the way Gardner suggests? Do Gardner’s observations support the idea that corrective justice enjoys some kind of 'explanatory priority' over distributive justice? Can corrective justice be conceptualized prior to and independent of questions of distributive justice? I don’t think we can get a full answer to these questions without delving more deeply into the nature of private legal rights. I therefore explore these questions by examining the conception of private legal rights that Gardner adheres to alongside the Kantian conception that Gardner rejects. I then propose and defend an intermediate conception. On my conception, there is a singular question of justice at the fundamental moral level that entails corrective and distributive principles whose prescriptions depend on the circumstances. There is no fundamental norm of corrective justice that is distinct from some other fundamental norm of distributive justice. On the contrary, the moral soundness of any corrective legal norm depends inescapably on distributive considerations.

Highly recommended.

Lin on "Confucianism and Same-Sex Marriage" by Bai

Yao Lin (Yale University, Law School) has posted From the Specter of Polygamy to the Spectacle of Postcoloniality: A Response to Bai on Confucianism, Liberalism, and the Same-Sex Marriage Debate
Politics and Religion on SSRN.  Here is the abstract:

In “Confucianism and Same-Sex Marriage,” published recently in Politics and Religion, Professor Tongdong Bai argues for a “moderate Confucian position on same-sex marriage,” one that supports its legalization and yet endeavors “to use public opinion and social and political policies to encourage heterosexual marriages, and to prevent same-sex marriages from becoming the majority form of marriages” (Bai 2021:146). Against the backdrop of downright homophobia prevalent among vocal Confucians in mainland China today, Bai claims that his pro-legalization rendition “show[s] a different version of Confucianism that challenges the received perception of Confucianism that it is deeply conservative, a perception that often lies at the core of the rejection of its contemporary relevance, especially by the so-called ‘liberals’ in China and elsewhere” (Bai 2021:133). Furthermore, Bai claims that his moderate Confucianism is normatively preferrable to “the typical liberal or individualist position” of a marriage equality supporter, because the specter of polygamy – the conservative trope of invoking polygamy as a reductio ad absurdum against same-sex marriage – imposes “a serious challenge” to liberals but not to moderate Confucians (Bai 2021:146, 153).

Both of Bai’s claims falter upon scrutiny, however. Granted, it is applaudable that Bai tries to dissuade his more conservative Confucian colleagues from opposing the legalization of same-sex marriage. But as Section 1 of this Response will show, the alternative rendition of Confucianism he presents, along with the way he presents it, is premised on a highly contested conception of what shared Confucian values are; does injustice to Confucians who embrace marriage equality more unreservedly (i.e., without caveats à la Bai); fails to produce new arguments that “enrich the theoretical basis for same-sex marriage” (Bai 2021:133); and, ironically, reinforces – rather than “challenges” – the “received perception” of Confucianism as deeply conservative. Meanwhile, Section 2 will show that Bai’s comparison between liberalism and moderate Confucianism relies both upon an apparent unfamiliarity with the extensive and nuanced liberal discussions on polygamy, and upon fallacious methods of assessing comparative normative valence.

Finally, Section 3 will offer some concluding thoughts from the perspective of decolonial theory, examining the dynamic of spectacularized postcoloniality that propels the production and consumption of dubious theoretical projects like Bai’s. As it turns out, this case serves not only as a cautionary tale of how not to conduct comparative normative theorizing, but also as a cautionary tale of how not to let the spectacle of postcoloniality derail the pursuit of academic decolonization.

Payne-Tsoupros on Removing Police from Schools

Chris Payne-Tsoupros (University of the District of Columbia - David A. Clarke School of Law) has posted Removing Police From Schools Using State Law Heightened Scrutiny (17 Northwestern Journal of Law and Social Policy 1 (2021)) on SSRN.  Here is the abstract:

This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools.

Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to effect the abolition of police in schools, focusing on solutions to school policing that are consistent with DisCrit principles.

This Article proposes using the state law constitutional right to education as that mechanism. Every state, in its constitution, provides for some form of a right to education. While an imperfect solution, this Article considers the state constitutional right to education as an approach to remove police from schools with broader ramifications for dismantling the school-to-prison pipeline.

Legal Theory Lexicon: Default Rules and Completeness

Introduction

At some point in the introductory class in contract law, students are likely to encounter a very powerful idea--the distinction between "default rules" and "mandatory rules."  The basic distinction is easy to grasp.  Some rules of contract law supply default terms that are subject to contractual override; other rules of contract law are mandatory--they can't be modified by the contract.  Lurking in the background of this distinction is a theoretical construct--the complete contract, an idealized contract that would include explicit terms covering every possible contingency.  Once you understand the distinction between default rules and mandatory rules, additional questions arise: as a matter of normative contract theory, which rules should be default rules and which rules should be mandatory?  And what normative principles should guide the design of default rules?

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

Default Rules and Mandatory Rules

Let's start with the "takeaway" point.  In contract law, we can sort the rules into two sorts, "default rules" and "mandatory rules."

Here's an example.  The Uniform Commercial Code (or UCC, the codified law of contract that applies to contracts between businesses as a matter of state law in the United States) creates a duty to act in good faith--this is a mandatory rule, because this duty cannot be disclaimed by a contractual provision.  The UCC also includes an implied "warranty of merchantability," that attaches to contracts, but can be waived by agreement--this is a default rule.

Grasping this distinction is important for at least two reasons.  First, unless you know whether a given rule of contract law is a default rule or a mandatory rule, you don't really know the law.  And it isn't always clear whether a given rule is one or the other: the usual tipoff is language like, "unless the contract provides otherwise" or "absent an agreement to the contrary."  Second, the distinction between default rules and mandatory rules is fundamental to the normative structure of contract law.  Learning contract is more than a matter of mastering the rules; mastering the arguments of principle and policy that can be used to argue for and against the rules is equally important.  But the arguments for default rules and the arguments for mandatory rules must be different--because these two kinds of rules have different functions.

Generalizing the Idea of a "Default Rule" 

Although the notion of a "default rule" is usually introduced to law students in the context of contract law, the idea is more general.  For example, we could think of the law of wills and intestate succession through this theoretical lens.  Rules of intestate succession are "default rules" that can be overridden by a will.  Much of the law of wills consists of default rules, and we can imagine a "complete will" that covered every possible contingency.

Similarly, we can imagine a "complete code" that covers every possible action or inaction and specifies what legal consequences follow.  Given that actual codes are incomplete, we can look at the law of statutory interpretation as including a collection of "default rules" that allow courts to fill in the gaps.  Another example is provided by corporations law--once again, some of the rules are mandatory and others are merely defaults.

You get the idea--default rules can be applied to any authoritative legal text that is "incomplete."

Normative Theories of Default Rules 

Once we understand the distinction between default rules and mandatory rules, we can then ask the question, "What normative principles should guide the design of default rules?"  For example, we might decide that lawmakers (legislators or common-law judges) should attempt to devise the default rules that are most likely to be the rules that the parties would have adopted had they contracted on the issue.  Or we might want "efficient" default rules.  Or default rules that maximize utility.  All of these approaches are associated with normative law and economics.  But there are other approaches as well.  For example, we might try to design default rules so that they maximize the autonomy or liberty of the parties to the contract--imposing the fewest possible restrictions that have not actually be agreed to by the parties.  Or we might impose default rules that will serve some other goal such as distributive justice or economic equality.

Default Rules as Public Goods 

Another interesting question is why the law provides default rules at all.  Why don't we force the parties to reach complete agreements?  Immediately, of course, we realize that this would be very costly.  Drafting a complete contract would almost always (perhaps always) cost more than the contract is worth.  And there is another problem as well.  Most contract provisions are not protectable as intellectual property; in general, you can't copyright or patent a nifty contractual provision.  (You may be able to copyright the specific language, but that doesn't preclude someone else from expressing the idea in different language.)

This suggests an interesting perspective on the economics of default rules.  We might see the default rule provisions of contract law as a "public good."  That is, consumption of default rules is "nonrivalrous"--because my use of a given provision doesn't interfere with your ability to use the same provision.  And consumption of default rules is "nonexcludable"--assuming that there is no intellectual property protection available for "form contracts" or "form contract provisions."  If this is correct (and it may not be), then there is a classic economic justification for government to provide for the "public good."  For more on the idea of a public good, see Legal Theory Lexicon 029: Public and Private Goods.

Complete Contracts 

Now that we have the basic distinction between default and mandatory rules in mind, let's discuss the related idea of a complete contract.  Once again, the core intuitive idea is relatively simple--a complete contract has provisions that cover "every contingency."  In other words, a complete contract has no gaps.

Why did I put "every contingency" in scare quotes?  Because "every contingency" is an ambiguous way of formulating a fairly complex idea.  We need some special terminology here.  Economists tend to use the phrase "states of affairs" to express the idea of a contingency.  A "state of affairs" is simply a way that the world can be--a complete specification of the way things are.  Philosophers use different jargon--the phrase "possible world" expresses the same idea as "state of affairs."

So a truly "complete" contract would be a contract that specified the duties and rights of the parties for all the future states of the world--or all the possible worlds that share the history of the actual world up to the point the contract is formed.  Once you think about it, it becomes clear that no actual contract could be complete.  There are infinitely many possible future states of the world--and a contract that covered all of them would have an infinite number of provisions, and hence the drafting of such a contract would never be complete--it would still be unfinished when the universe reached a state of complete entropy.

So the notion of a complete contract is an idealization--not a practical option.  And once we see this point, another point becomes obvious.  Contract law cannot provide default rules to cover every possible contingency either.  Of course, as a practical matter, contract law doesn't have to cover all the contingencies.  Some possible future states of the world are so remote or far-fetched that they can safely be disregarded--Martian invasions and/or the discovery of a true universal fabrication machine (3D printers are not even close) are not contingencies about which we need worry.

The General Idea of Completeness 

Just as the idea of a default rule can be generalized beyond contract law, so can the idea of completeness.  So we can imagine "complete wills," "complete corporate charters," "complete trusts," and so forth.  One particularly important idealization is the idea of a "complete code"--a legal code that itself has provisions that cover every possible contingency.  The complete code will have default rules or mandatory rules that for every possible future state of affairs.

Conclusion 

Well, as is usually the case, we've barely scratched the surface.  Nonetheless, I hope this Lexicon entry has given you a basic framework for understanding the ideas of a complete contract and the distinction between default rules and mandatory rules.  Once you have this ideas in your conceptual toolkit, you are likely to start noticing them in all kinds of contexts, not just in contract law, but in every legal subject you encounter.  When you do, you might ask yourself, "Why is this a default rule rather than a mandatory rule?," or vice versa.  And, "What normative legal theory or principle supports this choice?"

Related Lexicon Entries

• Legal Theory Lexicon 013: Conduct Rules and Decision Rules
• Legal Theory Lexicon 029: Public and Private Goods
  
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 036: Indeterminacy
• Legal Theory Lexicon 051: Vagueness and Ambiguity

Bibliography

• Ian Ayers & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale Law Journal 87 (1989)
• Ian Ayers, Default Rules for Incomplete Contracts.
• The Desert and the Jungle: Alan Schwartz and Robert Scott on Contract Theory
• C A Riley, Designing Default Rules in Contract Law: Consent, Conventionalism, and Efficiency, Oxford Journal of Legal Studies, Volume 20, Issue 3, AUTUMN , Pages 367–390.
• Curtis Bridgeman, Default Rules, Penalty Default Rules, and New Formalism, 33 Fla. St. U. L. Rev. 683 (2006).
• Ariel Porat & Lior Jacob Strahilevitz, Personalizing Default Rules and Disclosure with Big Data, 112 Mich. L. Rev. 1417 (2014).

Resources on the Web

• Default Rules on Wikipedia
• Complete Contract on Wikipedia
• Ian Ayres, Default Rules vs. Mandatory Rules, YouTube

(This entry was last updated on January 16, 2022.)

Legal Theory Bookworm: "Personalized Law" by Ben-Shahar & Porat

The Legal Theory Bookworm recommends Personalized Law: Different Rules for Different People by by Omri Ben-Shahar & Ariel Porat.  Here is a description:

We live in a world of one-size-fits-all law. People are different, but the laws that govern them are uniform. “Personalized Law”---rules that vary person by person---will change that. Here is a vision of a brave new world, where each person is bound by their own personally-tailored law.  “Reasonable person” standards would be replaced by a multitude of personalized commands, each individual with their own “reasonable you” rule. Skilled doctors would be held to higher standards of care, the most vulnerable consumers and employees would receive stronger protections, age restrictions for driving or for the consumption of alcohol would vary according the recklessness risk that each person poses, and borrowers would be entitled to personalized loan disclosures tailored to their unique needs and delivered in a format fitting their mental capacity. The data and algorithms to administer personalize law are at our doorstep, and embryos of this regime are sprouting.

Should we welcome this transformation of the law? Does personalized law harbor a utopic promise, or would it produce alienation, demoralization, and discrimination? This book is the first to explore personalized law, offering a vision of law and robotics that delegates to machines those tasks humans are least able to perform well. It inquires how personalized law can be designed to deliver precision and justice and what pitfalls the regime would have to prudently avoid. In this book, Omri Ben-Shahar and Ariel Porat not only present this concept in a clear, easily accessible way, but they offer specific examples of how personalized law may be implemented across a variety of real-life applications.

Download of the Week: "How Practices Make Principles, and How Principles Make Rules" by Berman

The Download of the Week is How Practices Make Principles, and How Principles Make Rules by Mitchell N. Berman.  Here is the abstract:

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing on concrete examples from statutory and constitutional law, the article shows how the version of positivism that it introduces betters Hart’s in meeting the most formidable challenges to positivism that Dworkin marshaled. In doing so, it also highlights the legal importance of the abstract jurisprudential inquiry this article undertakes. Because any argument about what our law is presupposes an account of what makes it so, domestic theories of statutory and constitutional interpretation—and the case-specific holdings they output—are only as secure as are the general jurisprudential theories they presuppose.

Highly recommended.  This is an important paper by one of the best contemporary legal theorists.  Download it while it's hot!

Malloy on Adam Smith's Jurisprudence

Robin Paul Malloy (Syracuse University College of Law) has posted Law and The Invisible Hand: A Theory of Adam Smith's Jurisprudence (Draft Chapter 1) (Cambridge University Press 2021) on SSRN.  Here is the abstract:

Fundamentally, law is to society as gravity is to the solar system, it is the invisible force that holds it together and keeps it operating smoothly and productively. Law enhances social cooperation, facilitates trade, and extends the market. In these ways, law functions like Adams Smith’s invisible hand, guiding and facilitating the progress of humankind.

Simons on Generality & Tort

Kenneth W. Simons (University of California, Irvine School of Law) has posted Justifying and Categorizing Tort Doctrines: What Is the Optimal Level of Generality? (Journal of Tort Law, Vol.14, No,2, 2022, forthcoming) on SSRN.  Here is the abstract:

This essay explores the issue of generality and tort law from two directions. First, when common law judges offer justifications of tort doctrine, what is the appropriate level of generality or specificity of those justifying principles and policies? Second, when judges identify and refine tort doctrines, what is the appropriate level of generality or specificity of the doctrines themselves? With respect to the first issue, Stephen A. Smith has argued that judges ordinarily do, and should, invoke only 'intermediate' justifications for their decisions (such as dignity, fairness, or reasonableness), rather than 'foundational' ones (such as utilitarianism or corrective justice). Smith’s argument has some purchase: intermediate principles indeed do and should play a prominent role in common law decision-making. However, foundational principles can legitimately play a more significant role than Smith suggests, especially if they are pluralistic. And intermediate principles are sometimes too vacuous to operate as genuine justifications. With respect to the second issue, Stephen D. Sugarman and Caitlin Boucher have proposed that numerous torts that might be characterized as 'dignitary' torts should be merged into a single “unifying” tort, the tort of wrongfully harming another’s dignity in a highly offensive way. The authors plausibly argue that courts have not paid sufficient attention to gaps and arbitrary distinctions between these torts. However, their more radical claim that one uber-tort should replace all 'dignitary' torts is not persuasive. Torts as distinct as battery, false imprisonment, intrusion into a private place, and malicious prosecution reflect distinct wrongs and should not be supplanted by a single tort prohibiting wrongful and highly offensive conduct. The analysis offered in this essay is informed by many examples from the Restatement Third, Torts: Intentional Torts to Persons, for which I have served as co-Reporter or Reporter.

Highly recommended.

Berman on "Originalism: Standard and Procedure" by Sachs

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Keeping Our Distinctions Straight: A Response to “Originalism: Standard and Procedure” (Harvard Law Review Forum (Forthcoming 2022)) on SSRN.  Here is the abstract:

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees that the basic distinction Sachs highlights is important, but argues that it’s already well understood in the constitutional theory literature under different labels, such as the familiar distinction between theories of legal content and of adjudication, and the less familiar distinction between “constitutive” and “prescriptive” theories of constitutional interpretation. It argues further that, nomenclature aside, the distinction does not lend originalism the support that Sachs claims for it because we remain without good reason to believe that originalism is our constitutional standard.

Woolhandler on Parrillo on the Direct Tax of 1798 & Delegation

Ann Woolhandler (University of Virginia School of Law) has posted Public Rights and Taxation: A Brief Response to Professor Parrillo on SSRN.  Here is the abstract:

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo’s article appeared, particularly arguing that Congress itself addressed the important issues as to the 1798 tax. This paper instead focuses on Parrillo’s claim that the 1798 tax did not fall within any limited special category for nondelegation purposes. Admittedly, Parrillo’s evidence undermines some generalizations that early rulemaking was not “coercive and domestic.” Taxation, however, falls into the category of public rights, which could include matters that were domestic and coercive, but that nevertheless allowed for a more lenient application of separation of powers strictures.

Brooks on "The New Religious Intolerance" by Nussbaum

Thom Brooks (Durham University) has posted Cultivating Citizenship: On the Importance of Stakeholding (In T. Brooks (ed), Political Emotions (Palgrave, 2022)) on SSRN.  Here is the abstract:

In The New Religious Intolerance, Martha C. Nussbaum examines the political culture of fear arising from our post-9/11 world characterised by increasing Islamophobia in countries often regarded as tolerant and open societies. This raises serious questions about how genuinely tolerant these states are given the unsatisfactory reasons offered in support of certain laws. She argues that this problem is worse for European governments than the United States. Examples include the calls for banning minarets and the veil which are more common in the former than the latter.

Nussbaum exposes this new religious intolerance as ethically inconsistent, lacking in good principles about religious liberty and failing to engage others in any satisfactory level of empathetic participation. She advocates a compelling new model of ‘civic friendship’—built on earlier work by Roger Williams, the founder of Rhode Island—as an important relationship citizens should share that can help us overcome intolerance in future. We should cultivate equality between citizens by securing equal freedoms and equal respect to safeguard our societies from a culture of fear. Civic friendship is important because it is a hallmark of tolerance. But is it enough?

In this chapter, I argue that civic friendship is vital, but insufficiently strong as a connection to secure the important role that it is meant to serve in overcoming intolerance. This is because the citizenship we require is more than an acceptance of shared institutions and a recognition of others as political equals: it is also our possessing a conviction about ourselves as what we might call ‘stakeholders’. If we lack this conviction, then we can have freedom and even reciprocity while suffering from social and political alienation. These senses of alienation feed into the many pathologies associated with the demonization of cultural minorities, such as irrational fears of subversion, contamination and threats. So if we aim to overcome intolerance, we must also seek to overcome alienation: civic friendship is one important step towards this, but it is insufficient.

Recommended.  Link to the book in the abstract.

Garnett on Estoppel & International Arbitration Awards

Richard Garnett (University of Melbourne - Law School) has posted Estoppel and Enforcement of International Arbitration Awards (Australian Law Journal (Thomson Reuters) 2021) on SSRN. Here is the abstract:

A losing party to an arbitration award (award debtor) has traditionally enjoyed complete freedom when seeking to resist enforcement of an award. The debtor may challenge the award in the courts of the seat of arbitration, it may rely on a defence to enforcement in the courts of country B or it may pursue both options. Two questions have recently arisen however: first, whether the debtor should be estopped in proceedings in country B from raising an objection that it unsuccessfully pleaded in the seat and second, whether the debtor should be precluded from invoking a defence in country B proceedings that it could have raised in the seat but failed to do so. This article examines the doctrines of issue and Anshun estoppel in the context of international arbitration awards and the related principles of finality and enforceability of awards and comity towards foreign courts.

Choudhury on Islam as Race

Cyra Akila Choudhury (Florida International University College of Law; Center for Law and Digital Technologies) has posted Islam-as-Race on SSRN.  Here is the abstract:

Can a religion, over time and through its social and legal resignification, come to be a race? This chapter posits that in the context of North America and Europe, Islam has become a race and Islamophobia a species of racism. This construction is not dependent on an individual’s underlying, existing racial, ethnic, or religious identity but has become part of the larger assemblage of Islam-as-race. As such, I propose “Islam-as-race.” Drawing on the theoretical arguments and insights of Critical Race Theory, the central and novel claim of this paper is that if we accept that races are socially constructed and mutable, then it follows that races come in to being, existing ones change over time, and some may even change so much as to disappear from their original form. The article argues that Islam is no longer merely a religion but now has all the markers of race and Islamophobia is a form of racism. As such, we should treat it in the way that we treat other categories or race and not just as "radicalized." To demonstrate this evolution of Islam into a race, the paper first offers a genealogy of Islam-as-race in Part I. In Part II, it explores the common underpinnings and strategies to discriminate against Muslims that are shared with racisms against other groups. Using Critical Discourse Studies, the article shows how Islamophobia and anti-Blackness have many commonalities particularly in the constructions of the anti-sharia panics that anticipated the anti-CRT panic. Finally, in Part IV, the article turns to the material effects of Islamophobia as racism to show how these too are common.

Coglianese on Administrative Law

Cary Coglianese (University of Pennsylvania Carey Law School) has posted Administrative Law (In Jonathan H. Hamilton, et al., eds., Oxford Research Encyclopedia of Economics and Finance (forthcoming)) on SSRN.  Here is the abstract:

Administrative law refers to the body of legal doctrines, procedures, and practices that govern the operation of the myriad regulatory bodies and other administrative agencies that interact directly with individuals and businesses to shape economic and social outcomes. This law takes many forms in different legal systems around the world, but different systems of administrative law share in common a focus on three major issues: the formal structures of administrative agencies; the procedures that these agencies must follow to make regulations, grant licenses, or pursue other actions; and the doctrines governing judicial review of administrative decisions. In addressing these issues, administrative law is intended to combat conditions of interest group capture and help ensure agencies make decisions that promote the public welfare by making government fair, accurate, and rational.

Glicksman & Levy on the Separation of Powers and Administrative Adjudication

Robert L. Glicksman (George Washington University - Law School) & Richard E. Levy (University of Kansas - School of Law) have posted The New Separation of Powers Formalism and Administrative Adjudication (George Washington Law Review, Vol. 90, 2022) on SSRN.  Here is the abstract:

The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This paper focuses on an aspect of the new formalism that has received little attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a doctrinal restatement may be on the horizon.

Despite the current lack of doctrinal clarity, administrative adjudication is generally valid either because Congress may vest the determination of so-called “public rights” in non-Article III tribunals or because administrative agencies adjudicate cases as adjunct factfinders for the courts. The foundation for the emergent Article III formalism, advanced most prominently by Justice Gorsuch in a pair of cases involving the legality of administrative adjudication of patent validity, is a categorical rule that Article III requires an independent judiciary to have decisional authority in adjudications that affect private property (and other protected rights), in much the same way that the unitary executive principle requires Presidential control over matters within the executive branch. Under this view, however, the judicial power is subject to a formalistic, historically defined exception for matters of public rights, which can be adjudicated without the involvement of the judiciary. This approach may be gaining traction as part of the broader resurgence of separation of powers formalism.

We argue, however, that Justice Gorsuch’s approach is flawed because it does not account for the structural role of the Article III judiciary. Although the cases have long recognized that Article III has both structural and individual rights components, separation of powers is ordinarily understood primarily in structural terms. Article III analysis therefore must account for the structural role of the Article III courts and protect the structural interests of the federal judiciary. Focusing on the structural issues raised by non-Article III adjudication highlights two essential points. First, the status and character of the non-Article III tribunal is critical to the separation of powers analysis—a point that is typically ignored under current doctrine. Second, the structural interests of the federal courts may be implicated even when the adjudication of a matter does not implicate any individual right to an Article III court, especially in light of the courts’ role in protecting the rule of law. The rule of law applies even when executive action does not deprive anyone of a private right.

Building on these points, our core argument is that, properly understood, most administrative adjudication is fully consistent with separation of powers formalism because it involves the execution of law by officials within the executive branch. In other words, the initial implementation of statutory provisions by agencies using quasi-judicial procedures is executive in character. This understanding brings coherence to the public rights doctrine that has long governed the constitutionality of administrative adjudication. It also reveals that the critical separation of powers question for administrative adjudication is the availability and scope of judicial review, rather than the propriety of initial administrative adjudication. It is the availability and scope of judicial review which determine the extent of any encroachment on the exercise of judicial power under Article III.

Berman on Hart, Dworkin, & the Operation of Legal Principles

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Dworkin versus Hart Revisited: The Challenge of Non-Lexical Determination (Oxford Journal of Legal Studies, forthcoming 2022) on SSRN.  Here is the abstract:

A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin’s challenge to Hartian positivism leveled in The Model of Rules I. It argues that the underappreciated significance of Dworkin’s distinction between rules and principles is not that Hart’s model cannot allow for the existence of legal principles, but that it cannot make sense of their operation. Hart’s model posits that legal rules are determined in a rule-like (“lexical”) way, whereas legal principles contribute to rules in a manner that is at least partly non-lexical. The upshots of this reinterpretation are: first (against most positivists) that Dworkin’s challenge does require some reworking of Hart’s positivist theory; and second (against most anti-positivists) that the reworking required to meet Dworkin’s challenge does not necessitate positivism’s abandonment.

Highly recommended.

Brooks on Restorative Justice

Thom Brooks (Durham University) has posted The "Transition" to Restorative Justice (In T. Brooks (ed), Political Emotions (Palgrave, 2022)) on SSRN.  Here is the abstract:

Two of the biggest challenges for advocates of criminal justice reform concern victims and public confidence. Many victims can feel like spectators to what can seem like “their” crime, or in other words the crime committed against them. Most cases never go to trial and victims rarely have a chance to express how a crime impacted them. In the United States, the figure can be as low as six percent and it can be lower still elsewhere: only about two percent of cases in Scotland go to trial. More than nine in ten avoid trial through plea arrangements. Campaigners have become more vocal in calling for changes in the criminal justice system that allow a voice for victims who wish to participate in the process at trial.

At the same time, various governments have struggled to win over a sceptical public on sentencing sometimes appealing to tougher sounding, but counter-productive measures like “Three Strikes and You’re Out.” However attractive this might sound to an uncritical public as an effective deterrent, this policy has had little, if any, discernible deterrent effect and has led to skyrocketing incarceration costs as more individuals are imprisoned for longer. So, the challenges are two-fold: how to improve the satisfaction of victims in how crimes are handled while improving the effectiveness of the criminal justice system?

In Anger and Forgiveness, Martha C. Nussbaum grapples with these issues and more through the lens of understanding the essential place of emotions in the legal system more widely and their value in improving the criminal justice system in particular. This work defends a novel and compelling understanding of anger (as ‘transition-anger’) which is applied to excellent effect across several policy areas, such as sentencing and restorative justice conferences. While Nussbaum finds restorative justice promising, she stops short of advocating for its greater rollout. Focusing on work primarily by leading Australian criminologist John Braithwaite, Nussbaum claims restorative justice is too idealised for widescale use and too restricted in application to youth offenders. Instead of promoting restorative justice as an alternative to the formal trial, Nusbaum focuses instead on pre-crime uses such as greater use of restorative justice in schools and other settings.

While I agree that restorative justice can and should be used more widely outside of the criminal justice system, I closely examine Nussbaum’s concerns about how restorative justice is used. I argue that a greater use of restorative justice would help maximise the constructive engagement with transition-anger benefiting victims, offenders and local communities alike. However, it is not a panacea. Not every crime has a victim and not every victim may wish to take part. But there are compelling reasons for why we should advocate for more, not less, wherever possible and plausible. Restorative justice offers a way forward in how to better include victims while improving public confidence, in a way that is consistent with and reinforces Nussbaum’s views on emotions and criminal justice.

Highly recommended.

Bellamy on Bills of Rights & Constitutional Theory

Richard Bellamy (University College London - Department of Political Science) has posted Bills of Rights (Forthcoming in Richard Bellamy and Jeff King eds, Cambridge Handbook of Constitutional Theory (CUP 2022)) on SSRN.  Here is the abstract:

This chapter focuses not on the possible content of a Bill of Rights, such as whether it should contain social and economic rights or only civil and political rights, but on the form any such Bill needs to take to be legitimate in a manner congruent with the moral norms of equal concern and respect underlying both rights and democracy. It explores four conceptions of Bills of Rights and the different ways they relate to democratic theory and practice. I start with the view of a Bill of Rights as distinct from normal legislation and that is ultimately the responsibility of the courts to defend. I distinguish between substantive and procedural accounts, in which the first focuses on upholding the rights necessary to ensure the outputs of democratic decisions reflect democratic norms whereas the second seeks to uphold the rights required for a due democratic process. I then turn to legislated rights and the role of Parliamentary Bills of Rights. Finally, I examine the role of democratic constitutional politics as a means for justifying and legitimising such rights instruments, be they upheld by legislatures or courts.

Malone on a Gay & Lesbian Democratic State

Matt Malone (University of Ottawa, Faculty of Law) has posted Over the Rainbow: The Dilemmas of a ‘Gay and Lesbian and Democratic’ State on SSRN. Here is the abstract:

This paper takes inspiration from the emergent concept within queer theory of utopia. Heeding this call, the paper resorts to a paradigm of legal futurism and imagines a gay and lesbian and democratic state. It calls this state Oz. The paper examines how Oz can maintain a commitment to gay and lesbian identity while balancing its promise of democracy. It explores two central themes. First, it contemplates whether it is a viable concept at all to have a state that stands for gay and lesbian identity and democracy at the same time. Second, the paper examines these tensions by looking at Oz's Law of Return. The paper walks through the tensions imminent to the concept of a “gay and lesbian and democratic” state within the law, and argues that the Law of Return embodies these tensions in a way that is typical in a liberal democracy. It suggests that resistance and opposition to this law would be an attempt to de-legitimize the gay and lesbian people’s right of self-determination.