Legal Theory Blog

Seifter on Power Play Politics in the American States

Miriam Seifter (University of Wisconsin Law School) has posted Judging Power Plays in the American States (Texas Law Review, Vol. 97, 2019) on SSRN.  Here is the abstract:

Around the country, officials in “purple” states are waging high-stakes battles in which they alter government institutions for partisan advantage. Lame-duck legislatures have divested newly elected executive-branch officials of their power, and governors have unilaterally claimed new authority over appointments or elections. In other instances, state officials have boldly leveraged existing powers: one governor line-item vetoed the state legislature’s entire operating budget, and another state legislature impeached its entire supreme court. If federal officials are playing “hardball,” state governments are playing hand grenades.

Commentators to date have largely viewed these developments in political terms, as evidence of eroding democracy. This Essay, prepared for a symposium on “Reclaiming—and Restoring—Constitutional Norms,” urges another lens: the recent power plays raise significant, justiciable questions of state constitutional law. Indeed, state courts have begun to decide these cases, despite apparent misgivings and dissenting opinions regarding the conflicts’ political nature.

The Essay describes this growing body of case law and identifies its common features. Zooming out from the outcomes of the lawsuits, the Essay highlights a set of more systemic implications: power play litigation is dialogue-forcing in a state realm that needs dialogue. In addition to providing healthy friction against power plays, state litigation spurs media coverage, social movement mobilization, and public conversation about constitutions that are otherwise low salience and about power plays that transpired quickly. This litigation-fostered dialogue also serves the separation-of-powers value of bringing multiple different perspectives and modes of argument to bear on state decision-making. In flagging this benefit, the Essay does not attempt a full normative analysis or attempt to weigh these benefits against inevitable costs. It simply suggests that, as the full picture takes shape, we should be watching to see whether adjudicating power plays can help to foreground the role of state constitutions in state governance.

Dalton & Logan on "Capitalism, Socialism and Democracy" by Schumpeter

John T. Dalton (Wake Forest University) & Andrew Logan (Wake Forest University) have posted A Vision for a Dynamic World: Reading Capitalism, Socialism and Democracy for Today on SSRN.  Here is the abstract:

This paper was written for a symposium on "Reconsidering the Classics." Rereading Joseph Schumpeter's Capitalism, Socialism and Democracy (CSD) for today, we argue Schumpeter's vision for a dynamic world remains essential for understanding the world. We begin the paper by briefly describing some background on Schumpeter and the context in which CSD was written. Then, we summarize the book, which Schumpeter divided into five separate parts on Marx, capitalism, socialism, democracy, and a history of socialist parties. Throughout our summary, we highlight the key arguments and touch on many ideas in the book, such as Schumpeter's description of socialism and his theory of democracy. Instead of tackling all these ideas in depth, we discuss the book's usefulness for readers today by focusing on Schumpeter's Big Idea – "creative destruction." We conclude by discussing how influential CSD has been, and continues to be, in the social sciences and then provide suggestions for those interested in reading CSD today.

Bronsther on Torture

Jacob Bronsther (Harvard University - Harvard Law School) has posted Torture and Respect (109 Journal of Criminal Law and Criminology 423 (2019)) on SSRN.  Here is the abstract:

There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources. This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading. In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment — torture. What is torture, and why is it wrong to torture people? If we can answer this question, this Article maintains, then we can understand when and why certain punishments — like perhaps long-term incarceration — are impermissibly degrading, regardless of their proportionality or social utility otherwise.

This Article develops an original theory of torture. It argues that torture is the intentional infliction of a suffusive panic and that its central wrongness is the extreme disrespect it demonstrates toward a victim’s capacity to realize value. Humans realize value diachronically, stitching moments together through time to construct a good life as a whole. Torture takes such a being, one with a past and a future, and via the infliction of a make it stop right now panic, converts her into a “shrilly squealing piglet at slaughter,” in Jean Améry’s words, restricting her awareness to a maximally terrible present.

The Article then considers what this theory of torture means for our understanding of degradation more generally. It argues that punishment is impermissibly degrading, regardless of our other penal considerations, when it rejects an offender’s status as a human. Punishment reaches this threshold by demonstrating that the offender’s life-building capacity — the very basis of his humanity — is completely absent or fundamentally worthless. To so thoroughly deny someone’s value, even someone who has committed a heinous crime, violates the liberal commitment to human inviolability. The Article closes by suggesting that long-term incarceration rejects an offender’s status as a human, and is therefore on a par with penal torture, given that removing someone from free society for decades makes it exceedingly difficult for him to construct a good life as a whole.

Highly recommended.

Mendenhall on "Why Liberalism Failed" by Mendenhall

Allen Mendenhall (Faulkner University Thomas Goode Jones School of Law) has posted Review of Patrick J. Deneen's 'Why Liberalism Failed.' (Journal of Faith and the Academy, Vol. XII, No. 1 (2019)) on SSRN.  Here is the abstract:

Patrick Deneen proposes that liberalism has failed. The operative premise of his argument is that liberalism so called created the conditions for its inevitable demise—that it is a self-consuming, self-defeating ideology only around 500 years old. Deneen presents a seeming paradox, namely that liberalism, under the banner of liberty and emancipation, produced their opposite: a vast, progressive, and coercive administrative state under which individuals have grown alienated, amoral, dependent, conditioned, and servile. Deneen doesn’t define the term "liberalism," which isn’t in his index even though it’s littered throughout the book. This review discusses some of the flaws in Deneen's argument. It proposes that, in a free society, entrepreneurs and producers are looking to others, to communities, to determine basic needs to satisfy. The rational self-interest motivating creativity and inventiveness is fundamentally about serving others more efficiently and effectively, about generating personal rewards, yes—but personal rewards for making life better and easier for others.

Legal Theory Lexicon: Transparency

Introduction

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

Transparency and Democratic Process

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

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

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

Transparency in the Market and the Boardroom

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

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

Transparent Judicial Procedures

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

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

Connections with Normative Legal Theory

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

Conclusion

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

Related Lexicon Entries

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

Bibliography

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

(This entry was last revised on July 14, 2019.)

Legal Theory Bookworm: "The Age of Culpability" by Yaffe

The Legal Theory Bookworm recommends The Age of Culpability: Children and the Nature of Criminal Responsibility by Gideon Yaffe.  Here is a description:

Why be lenient towards children who commit crimes? Reflection on the grounds for such leniency is the entry point into the development, in this book, of a theory of the nature of criminal responsibility and desert of punishment for crime. Gideon Yaffe argues that child criminals are owed lesser punishments than adults thanks not to their psychological, behavioural, or neural immaturity but, instead, because they are denied the vote. This conclusion is reached through accounts of the nature of criminal culpability, desert for wrongdoing, strength of legal reasons, and what it is to have a say over the law. The centrepiece of this discussion is the theory of criminal culpability. To be criminally culpable is for one's criminal act to manifest a failure to grant sufficient weight to the legal reasons to refrain. The stronger the legal reasons, then, the greater the criminal culpability. Those who lack a say over the law, it is argued, have weaker legal reasons to refrain from crime than those who have a say. They are therefore reduced in criminal culpability and deserve lesser punishment for their crimes. Children are owed leniency, then, because of the political meaning of age rather than because of its psychological meaning. This position has implications for criminal justice policy, with respect to, among other things, the interrogation of children suspected of crimes and the enfranchisement of adult felons.

And from the reviews:

"Yaffe's book makes a significant contribution, and is well worth the time spent reading it for those interested in the topic." -- Gabriel De Marco, Metapsychology

"The Age of Culpability is going to be talked about by scholars in law and philosophy for many years to come. It is daring and interesting in an age when so much of contemporary philosophy is staid. I confess that I have already assigned the book to a class of undergraduates, and they were riveted. It was a testament to the theoretical ingenuity and clarity with which Yaffe writes." -- Raff Donelson, Metapsychology

"the work contributes original analysis of why we should treat children in conflict with the law differently and more leniently to adults" -- Nessa Lynch, International Journal of Children's Rights

"this book contains a mountain of novel and important insights about several of the most central questions in the philosophy of criminal law. ... I hope and predict that it will stimulate a wave of efforts to explain whether and why our criminal justice system should treat kids more leniently than adults. But even if no flood of future efforts is forthcoming, Yaffe's book stands as a valuable contribution to several of the most central and important topics in the philosophy of criminal law." -- Douglas Husak, Notre Dame Philosophical Reviews

Download of the Week: "American Election Law in a Post-Truth World" by Hasen

Richard L. Hasen (University of California, Irvine School of Law) has posted Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World (St. Louis University Law Journal, 2019, Forthcoming) on SSRN.  Here is the abstract:

This Essay forms the basis for the 2019 Richard J. Childress Memorial Lecture, to be delivered at St. Louis University in October 2019.

About a decade or so ago, the major questions in the field of election law were familiar to scholars and centered on the Supreme Court, including the constitutionality of corporate spending limits in candidate campaigns, the constitutionality of the preclearance provision of the Voting Rights Act, and the constitutionality of strict state voter identification laws. While issues related to these cases continue to churn in the courts and remain of vital importance to American democracy, some of today’s most urgent election law questions seem fundamentally different and less Court-centric than those of the past, thanks to rapid technological change during a period of hyperpolarization that has called into question the ability of people to separate truth from falsity.

These questions include: What can be done consistent with the First Amendment and without raising the risk of censorship to ensure that voters can make informed election decisions despite a flood of virally-spread false and misleading speech, audio, and images? How can the United States minimize foreign disinformation campaigns aimed at American elections and attempts to sow social discord via bot armies? How can voters obtain accurate information about who is trying to influence them via social media and other new forms of technology? How can we expect judges to evaluate contested voting rights claims when they, like others, may live in information cocoons in which the one-sided media they consume affects their factual priors? Will voters on the losing end of a close election trust vote totals and election results announced by election officials when voters are bombarded with conspiracy theories about the reliability of voting technology and when foreign adversaries target voting systems to undermine confidence?

This Essay considers election law in the post-truth era, one in which it has become increasingly difficult for voters to separate true from false information relevant to election campaigns. Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance.

Part II of this Essay briefly describes what I mean by the “post-truth” era in politics. Part III examines the effects of the post-truth era on campaign law, arguing for a new law requiring social media to label as “altered” synthetic media, including so-called “deep fakes.” I defend such a law as necessary to support the government’s compelling interest in assuring voters have access to truthful political information. Part IV considers campaign finance law, arguing for campaign disclosure laws requiring those who use online and social media to influence voters, including those using bots and other new technology, to disclose their true identities and the sources and amounts of their spending. Part V considers the difficulty of using courts to adjudicate voting rights claims when there is fundamental disagreement about the basic facts related to issues such as voter fraud in our hyperpolarized, cocooned political environment. The Essay concludes with some thoughts on whether election law is up to the task of dealing with technological change and polarization which threaten some of the key suppositions of how democracy is intended to function, including as an aid to the peaceful transition of power.

Highly recommended.

Kent on Biven & Ziglar

Andrew Kent (Fordham University School of Law) has posted Bivens in National Security Cases, Before and After Ziglar v. Abbasi (Forthcoming, JUDGING NATIONAL SECURITY (Robert M. Chesney & Stephen I. Vladeck, eds., Oxford University Press)) on SSRN.  Here is the abstract:

This book chapter addresses the failures of the Bivens cause of action and remedy for constitutional torts by federal officers to redress most harms inflicted by national security and foreign affairs activities of the U.S. government. It traces the initial creation and expansion of the remedy in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) and then the Supreme Court's decades-long retrenchment, culminating with Ziglar v. Abbasi (2017). The chapter closely reads Abbasi to explain the Court's reasons for refusing to extend Bivens into the domains of national security and foreign affairs. One of the keys to understanding Abbasi is the disinclination of a majority of the Supreme Court to allow the federal judiciary to elaborate constitutional doctrine that will bind national security and foreign affairs activities of the U.S. government, especially those activities occurring abroad and/or implementing directives of national policymakers. This negative view of the law declaring role of the federal courts stands in stark contrast to the ascendant judicial supremacy in the domestic, non-national security sphere. Since Bivens suits are presumptively unavailable for national security harms, and core interests protected for centuries by the Anglo-American legal system — rights to life, bodily integrity, and liberty (in the sense of freedom of movement) — are being infringed without redress — for instance in interrogation and detention abuses in the post-9/11 conflicts — the chapter suggests a shift in approach. Efforts expended on seemingly futile Bivens litigation might instead be directed to seeking legislative reform. While acknowledging the difficulties of securing legislation from the current Congress and President, the chapter closes with detailed suggestions for amendments to current law that would allow civil redress for victims harmed by U.S. national security activities. To reduce objections from Congress and the executive, the proposals seek to heed the Supreme Court's warnings about the risks of constitutionalizing national security policy. As a result, the proposals allow civil redress under nonconstitutional law, namely state tort law, federal statutory law, international law, and administrative compensation mechanisms.

Conkle on Masterpiece Cakeshop and Beyond

Daniel O. Conkle (Indiana University Maurer School of Law) has posted Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond (La Liberté d'Expression en Droit Comparé [Freedom of Expression in Comparative Law] (Gilles J. Guglielmi, ed.; Les Editions Panthéon-Assas, 2020, Forthcoming)) on SSRN.  Here is the abstract:

Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments.

In this Essay, I present and defend three proposals for resolving the wedding vendor controversy and for clarifying and enhancing the law of religious freedom. First, the Supreme Court should reject the wedding vendors’ compelled speech argument even on the assumption that the vendors’ conduct is expressive. Second, the Court should repudiate the restrictive free exercise doctrine of Employment Division v. Smith, which has not settled the law but which instead has been undetermined by ill-defined exceptions and by congressional and state law developments. And third, applying its earlier, pre-Smith interpretation of the Free Exercise Clause, the Court should find strict scrutiny satisfied and therefore should reject the vendors’ free exercise claims. My second and third proposals, taken together, would permit the wedding vendor controversy to be framed and resolved transparently, as the conflict of competing values that it is: equality on the one hand, religious freedom on the other.

Choi on the Substantive Canons of Tax Law

Jonathan H. Choi (NYU School of Law) has posted The Substantive Canons of Tax Law (Stanford Law Review, Vol. 72, Forthcoming) on SSRN.  Here is the abstract:

Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual violations of the separation of powers.

This Article argues that anti-abuse doctrines should be considered substantive canons of construction, interpretive presumptions that can be rebutted by statutory text or purpose. This resolves apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconciles them to textualists as constitutionally permissible background norms. It also provides a framework to test the validity of disputed doctrines and allows them to be more flexible and intuitive.

Although many scholars have studied substantive canons and anti-abuse doctrines separately, little writing so far has connected the two. This Article does so, and also provides a catalog of substantive tax canons based on a primary review of cases, serving as a resource for future academics, practitioners, and judges.

I posted the abstract only last month (by mistake).  This time the paper is included.

Nishi on Interbranch Litigation

Andrea Nishi (Columbia University, Law School, Students) has posted Ortiz and the Problem of Intrabranch Litigation on SSRN.  Here is the abstract:

Do government appeals from the Court of Appeals for the Armed Forces represent a justiciable case or controversy under Article III of the Constitution? This paper analyzes the Supreme Court’s jurisprudence on Article III’s adversity requirement, arguing that government appeals from the CAAF may represent a non-justiciable instance of intrabranch litigation. Part I provides background on the structure and history of the CAAF and introduces the problem posed by government appeals from this tribunal to the Supreme Court. Part II explores the Court’s jurisprudence, as well as current scholarship, on intrabranch litigation and the requirement of adverse parties. Finally, Part III turns to Ortiz v. United States to examine how the Court’s recent characterization of the military justice system may reconcile the doctrinal and theoretical issues presented in the preceding sections. Although the Court in Ortiz did not address this broader jurisdictional issue, the majority’s focus on the judicial nature of the CAAF may provide a path to finding a justiciable controversy in government appeals from the CAAF.

al Attar on Third World Approaches to International Law

Mohsen al Attar (University of Warwick) has posted TWAIL: A Paradox within a Paradox (Forthcoming, International Community Law Review) on SSRN.  Here is the abstract:

What insight do critical perspectives bring to international legal theory? In the following article, I answer this question through an examination of TWAIL. Troubled by geopolitical imbalance in the enterprise of international law, a group of critically minded scholars sought to expand the scope of legal scholarship. They would do so by growing a scholarly community sensitive to Third World concerns in their engagement with international law. Movements are known to collapse just as quickly as they sprout and it is testament to TWAIL’s force that, twenty years on, it is still gaining momentum.

Self-described as a theory, method, sensibility, movement, and, as per the moniker, approach, TWAIL’s place in legal theory remains ambiguous. Drawing on a range of TWAIL scholars as well as journeymen commentators, I investigate, first, how its scholars represent TWAIL’s theoretical credentials and, second, where its contribution fits in the field.

Carter on Plagerism of Legal Briefs

Andrew Carter (Arizona State University- Sandra Day O'Connor College of Law) has posted The Case for Plagiarism (9 UC Irvine Law Review 531 (2019)) on SSRN.  Here is the abstract:

American courts persistently enforce a thick professional norm against plagiarism in filed legal briefs. But while courts variously label the practice as “reprehensible” and “wholly intolerable,” they never bother to explain why, exactly, plagiarism is worthy of such heavy rebuke. Instead, the courts proceed as though plagiarism is a malum se offense, a practice of such obvious moral turpitude that its prohibition requires no further explanation. The courts are flatly wrong about plagiarism. Plagiarism breaches no universal moral code. And once you take morality off the table, it is near-impossible to locate the interests served by the courts’ rule against plagiarism. Indeed, when the efficiencies obtained by plagiarism are placed on the scales, the case turns decidedly in favor of plagiarism as a legitimate means of brief drafting.

Sharafi on Parsi Legal Culture and Indian Constitutionalism

Mitra Sharafi (University of Wisconsin Law School) has posted Parsi Legal Culture, Constitutionalism, and the Rule of Law (in Nawaz B. Mody, ed., Volume in Honor of Centennial Anniversary of the K. R. Cama Oriental Institute (Mumbai: K. R. Cama Oriental Institute), Forthcoming) on SSRN.  Here is the abstract:

Parsi legal culture has played an important role in the constitutional life of modern India, helping nationalists pivot from extra-legal resistance to the business of running a state. This article suggests that Parsi legal culture reinforced constitutionalism and the rule of law in India. As ideals, the latter two concepts impose restraints on the exercise of power. During the late colonial period, elite Parsis led the early 'constitutionalist' phase of the Indian National Congress movement (1885-1919) and insisted on working for change through existing state processes and structures. Early Congress leaders Dadabhai Naoroji, Pherozeshah Mehta, and Dinsha Wacha were products of Parsi legal culture. They were turning outward"for the benefit of all Indians"the law-focused strategy that had worked so well during the preceding half-century for their own community. Their approach was abandoned as the nationalist movement became a mass movement circa 1920 under Gandhi's leadership. The values of Parsi legal culture and the Congress constitutionalists were relegated to the back burner from the 1920s until the late 1940s. However, they were brought back to life upon independence, particularly in the Constituent Assembly that created the Indian Constitution (1947-50) and in the interpretation of the Indian Constitution after 1950. The early Congress model of 'constitutional agitation' fed into what B. R. Ambedkar would call India's 'constitutional morality.' Both required the relinquishment of 'the bloody methods of revolution' and of Gandhian civil disobedience alike. Early independent India could re-activate constitutionalism and the rule of law as ideals because these ideas were preserved readymade within a particular politico-legal tradition, albeit one that had fallen out of favor in the decades before independence. This tradition was heavily influenced by Parsi legal culture. This article also answers the question of whether rule-of-law values were inescapably colonial: they were not. A history of tension within the colonial state highlights the distinction between those who believed there had to be restraints on the exercise of power, and those who wanted to rule without law. Debates among colonial state actors and the harnessing of rule-of-law values by the early constitutionalists reflected the distinction between the projects of colonialism and the rule of law. The British initially used the rule of law to justify colonialism because it was there, neatly packaged and ready to ship, in metropolitan thought and political culture. They underestimated the concept's autonomy and its potential to eat away at the foundations of empire. This insight also addresses the question: how did a population that achieved such affluence and success under British rule reposition itself in decolonisation mode? In fact, there was no necessary contradiction between Parsi legal culture and the rejection of colonial rule. Through its embrace of rule-of-law values and constitutionalism, Parsi legal culture helped build a solid foundation for the newly independent polity.

Hasen on Election Law in a Post-Truth World

Richard L. Hasen (University of California, Irvine School of Law) has posted Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World (St. Louis University Law Journal, 2019, Forthcoming) on SSRN.  Here is the abstract:

This Essay forms the basis for the 2019 Richard J. Childress Memorial Lecture, to be delivered at St. Louis University in October 2019.

About a decade or so ago, the major questions in the field of election law were familiar to scholars and centered on the Supreme Court, including the constitutionality of corporate spending limits in candidate campaigns, the constitutionality of the preclearance provision of the Voting Rights Act, and the constitutionality of strict state voter identification laws. While issues related to these cases continue to churn in the courts and remain of vital importance to American democracy, some of today’s most urgent election law questions seem fundamentally different and less Court-centric than those of the past, thanks to rapid technological change during a period of hyperpolarization that has called into question the ability of people to separate truth from falsity.

These questions include: What can be done consistent with the First Amendment and without raising the risk of censorship to ensure that voters can make informed election decisions despite a flood of virally-spread false and misleading speech, audio, and images? How can the United States minimize foreign disinformation campaigns aimed at American elections and attempts to sow social discord via bot armies? How can voters obtain accurate information about who is trying to influence them via social media and other new forms of technology? How can we expect judges to evaluate contested voting rights claims when they, like others, may live in information cocoons in which the one-sided media they consume affects their factual priors? Will voters on the losing end of a close election trust vote totals and election results announced by election officials when voters are bombarded with conspiracy theories about the reliability of voting technology and when foreign adversaries target voting systems to undermine confidence?

This Essay considers election law in the post-truth era, one in which it has become increasingly difficult for voters to separate true from false information relevant to election campaigns. Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance.

Part II of this Essay briefly describes what I mean by the “post-truth” era in politics. Part III examines the effects of the post-truth era on campaign law, arguing for a new law requiring social media to label as “altered” synthetic media, including so-called “deep fakes.” I defend such a law as necessary to support the government’s compelling interest in assuring voters have access to truthful political information. Part IV considers campaign finance law, arguing for campaign disclosure laws requiring those who use online and social media to influence voters, including those using bots and other new technology, to disclose their true identities and the sources and amounts of their spending. Part V considers the difficulty of using courts to adjudicate voting rights claims when there is fundamental disagreement about the basic facts related to issues such as voter fraud in our hyperpolarized, cocooned political environment. The Essay concludes with some thoughts on whether election law is up to the task of dealing with technological change and polarization which threaten some of the key suppositions of how democracy is intended to function, including as an aid to the peaceful transition of power.

Highly recommended.

Hwang on Non-Binding Agreements & Contracts

Cathy Hwang (Stanford Law School; University of Utah - S.J. Quinney College of Law) has posted Faux Contracts (Virginia Law Review, 2019) on SSRN.  Here is the abstract:

In deals, parties sometimes enter into agreements that look like contracts but lack the legal bite of formal contracts. What value can these agreements add that formal contracts cannot? This Article shows how parties use these agreements to mitigate so-called mundane transaction costs and to build a small relational ecosystem for future steps in the same transaction.

Parties use non-binding agreements in a variety of unsurprising contexts, like when binding agreements are too expensive or illegal, or when informal enforcement suffices. Use of non-binding agreements is puzzling, however, when parties are sophisticated—that is, when parties have the financial means and technical sophistication to enter into real, binding legal contracts, but choose to use non-binding ones instead. Early-stage mergers and acquisitions (“M&A”) is one such situation: parties enter into non-binding term sheets, which often look like contracts, but intentionally opt out of formal enforcement. Informal enforcement is also unlikely, because many M&A parties are not repeat players in the market. Yet, despite lack of enforcement, parties abide by the terms of the non-binding term sheet.

This Article makes two contributions to the literature. First, it shows that sometimes, enforcement is not necessary or even preferred: rather, parties prefer to decouple ex ante contracting from ex post enforcement through “faux contracts” like M&A term sheets. In doing so, parties can leverage the benefits of engaging in a contracting exercise, without actually subjecting themselves to enforcement. Because complex business deals are highly collaborative design processes, using a contract-like tool, even (or especially) without enforcement, helps parties organize, clarify, and understand the metes and bounds of their deals and obligations, whether or not they plan to, or can, enforce them. Second, through original interviews, this Article shows how parties use these early agreements and other activities to build a small relational ecosystem in which they feel enough trust to make further investments. Ultimately, parties’ reputation still matters to them—not on the broader M&A market, but within the individual deal. Parties also bundle binding and non-binding provisions in one document to encourage adherence and engage lawyers who, in an effort to preserve their own reputations, change term sheet practice on the margins.

Donelson on Holmes

Raff Donelson (Louisiana State University, Baton Rouge) has posted The Nihilist (The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. 31-48 (Seth Vannatta, ed. Lexington Press 2019)) on SSRN.  Here is the abstract:

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

Mitchell on Summary Criminal Jurisdiction in Australia & the Role of Victims

Tanya Mitchell (The University of Sydney Law School) has posted The Rise to Prominence of the Victim in the Summary Criminal Jurisdiction in the Twentieth Century (Tanya Mitchell, 'The Rise to Prominence of the Victim in the Summary Criminal Jurisdiction in the Twentieth Century', (2018) 5:2 "Law & History" 30) on SSRN.  Here is the abstract:

The role of victims in the development of the summary criminal jurisdiction is a relatively under-explored subject in the Australian criminal law and historical scholarship. In this paper the summary criminal jurisdiction is understood as the criminal justice apparatus or ‘legal space’ where magistrates preside over the determination of liability for certain proscribed behaviours in the lower courts without the intervention of a jury. A close socio-historical analysis of the development of the summary criminal jurisdiction in NSW reveals that after more than two centuries of near absence, victims began to move from the periphery to take up a key position in the summary criminal process in the final decades of the twentieth century. A key group was victims of non-fatal domestic violence. This shift in the position of the victim took place in the context of the convergence of two dynamics – one social and one institutional. The social dynamic was the rise to prominence of ideas of social equality and human rights which prompted various victims’ and feminist groups to lobby for law reform. The institutional dynamic was the formalisation of the summary jurisdiction; a process that has been taking place since at least the mid-nineteenth century, but which began to intensify in the mid-late 1970s. I argue that this institutional dynamic produced conditions that made it possible for the state to use the criminal law as the primary means of attempting to protect victims of non-fatal domestic violence.

Wilf on IP & Human Rights

Steven Wilf (University of Connecticut School of Law) has posted Intellectual Property and Human Rights (The Routledge History of Human Rights (ed. Jean H. Quataert and Lora Wildenthal), Routledge Press, 2019) on SSRN.  Here is the abstract:

Intellectual Property and Human Rights constitute two comprehensive, expansive, and previously unrelated legal regimes that increasingly have become intertwined over the past few decades. Both are grounded in rights discourse (property or human dignity foundations), often are moored by international agreements such as conventions and international trade treaties, rely upon institutions of global governance, and have rapidly, often in vertiginous fashion expanded the scope of their legal reach to new subjects and across international borders. The interface between the two regimes has become a rights thicket. Which set of rights should trump? And—as an animated academic and policy debate has queried--are IP and human rights complimentary or competing systems?

Analysis of the jostling between intellectual property and human rights has previously focused on recent interactions. This chapter is the first sustained examination of their encounters from the eighteenth century to our own times. Both are rights-based regimes. But human rights tends to resolve conflicts by seeing rights as legal trumps while intellectual property generally balances competing rights claims.

McLane on Discovery of Forensic Evidence in Criminal Cases

Lauren McLane (University of Wyoming College of Law) has posted Confronting the Twenty-First-Century Marian Examination (82 Albany Law Review 949 (2019)) on SSRN.  Here is the abstract:

Today, forensic evidence has increasingly become a key and powerful witness against the accused in criminal trials. In the Sixth Amendment Confrontation Clause, our Framers meant to create a safeguard that would forever test the reliability of evidence introduced against a defendant. As Justice Scalia reminded us, in Crawford v. Washington, “To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Nonetheless, courts across our nation routinely reject such reliability testing in denying confrontation challenges related to forensic evidence, particularly in multi-analyst forensic disciplines, such as alcohol breath testing, toxicology, and DNA testing. In large part, this is because our lower courts, after the United States Supreme Court’s fractured opinion in Williams v. Illinois, were left to their own devices in application of confrontation clause jurisprudence to forensic evidence.

Although our criminal justice system has evolved into a system that encompasses not only “conventional witnesses,” but also science and its process as an important witness, confrontation clause analysis has remained relatively stagnant. The application of the “conventional witness” confrontation rules — first borne out of Crawford v. Washington and Davis v. Washington, and then later refined in Michigan v. Bryant and Ohio v. Clark — by lower courts in the forensic evidence context has been unpredictable and, often, arbitrary. Courts have condoned the insulation of forensic evidence by denying the right to cross-examine the analyst who performed the scientific testing, hailing science as inherently reliable. In this way, our courts have returned confrontation clause analysis to the Sixteenth-Century-Marian Examination, such as the process relied upon to convict Sir Walter Raleigh in 1603; this historical disastrous result served as the primary impetus for our Framers’ adoption of the clause.

The Confrontation Clause and its guarantee of cross-examination of witnesses against the accused serves as a primary shield against unreliable and flawed forensic evidence. And the history of forensics in the courtroom undeniably supports that science is far from infallible. Without an entity such as the National Commission on Forensic Science, decommissioned by former Attorney General Jeff Sessions in 2017, an accused’s right to confrontation remains an indispensable check on the reliability of forensic evidence during a criminal trial.

In the Twenty-First Century, as the use of scientific evidence rapidly grows in criminal trials, courts and practitioners are in need of a new confrontation clause approach for such evidence. At first blush, Justice Thomas’s “formality and solemnity” requirement for confrontation clause applicability appears too narrow; however, a modification of this approach as applied to forensic evidence should be adopted by the United States Supreme Court. Justice Thomas’s approach needlessly over-emphasizes the form of evidence, such as whether it is an affidavit or declaration, in deciding the reach of the Confrontation Clause. A closer look at history demonstrates that our Framers were far more concerned with a process that insulated evidence from reliability testing than the mere form of evidence. Indeed, it was not the mere form of Sir Walter Raleigh’s accuser’s examinations or letters used against Raleigh at trial that were egregious as much as it was the process accepted and condoned by the court and its officials during the trial.

Science and its process is nothing if not both formal and solemn. Science is directed and governed by numerous standards, protocols, and procedures. Under a modified version of Justice Thomas’s “formality and solemnity” approach, where process over mere form is emphasized, forensic evidence is formal and solemn, and within the reach of the Confrontation Clause. Therefore, the performing analyst or an observer to the scientific testing must be confronted. Our Supreme Court should adopt this modified approach in the forensic evidence context, providing decisive and predictable guidance to our lower courts, at its earliest opportunity.

Morse on "The Age of Culpability" by Yaffe

Stephen Morse (University of Pennsylvania Law School) has posted Against the Received Wisdom: Why Should the Criminal Justice System Give Kids a Break? (Criminal Law & Philosophy, Forthcoming) on SSRN.  Here is the abstract:

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review. After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break. If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable. Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: 1) coherence and simplicity; 2) a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and 3) a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability.

Highly recommended.

Highly recommended.

Erickson on Bespoke Discovery

Jessica Erickson (University of Richmond School of Law) has posted Bespoke Discovery (Vanderbilt Law Review, Vol. 71, No. 6, 2019) on SSRN.  Here is the abstract:

The discovery process in the United States receives more criticism than all other stages of civil litigation combined. Critics complain that discovery in complex cases is too expensive and that its costs are too often disproportionate to the amount at stake in litigation. Yet contracting parties have the power to create their own customized solutions to these problems. Just as they can agree to other forms of bespoke procedure in their contracts from fee-shifting provisions to forum selection clauses and jury waivers, they can also agree to bespoke discovery provisions. Through bespoke discovery, contracting parties can alter the scope and volume of discovery, change the default funding rules, or even eliminate discovery altogether in any future disputes between them. This Article argues that sophisticated contracting parties should negotiate discovery rights the same way they might negotiate other provisions in their contracts. Such private ordering would allow contracting parties to shape the discovery process to their particular needs.

At the same time, however, bespoke discovery is not a panacea for the problems in the litigation system. Bespoke discovery can address certain problems with the discovery process, but it can also exacerbate existing inequalities. It is one thing for two sophisticated parties to bargain over the scope of their discovery rights in future litigation. It is another thing altogether for these same sophisticated parties to include bespoke discovery in their boilerplate agreements with unsuspecting customers or employees who may later need broad discovery rules to vindicate their claims. In the end, bespoke procedure is a double-edged sword, highlighting both the promise and peril of relying on the market to police privatized procedural rules.

Travis on Remedies for Online Copyright Infringement

Hannibal Travis (Florida International University College of Law) has posted Enjoining the Cloud: Equity, Irreparability, and Remedies (Villanova Law Review, Forthcoming) on SSRN.  Here is the abstract:

This article examines the tailoring of remedies in cases involving potential monetary compensation and both lawful and unlawful conduct, especially in online infringement disputes. When websites communicate copyrighted works to members of the public or use trademarks unlawfully, domestic requirements of equitable relief come into tension with global enforcement cultures. Courts are sometimes persuaded to enjoin entire websites or to order the defendant and its cloud service providers to end any use of the copyrights or trademarks at issue, while other courts limit their injunctions to the adjudicated conduct and the parties before them. The question sometimes arises whether a site-killing or device-killing order should issue in light of the defendant's infringement and third parties' facilitation of it, or whether the defendant should simply be ordered to desist from the infringing acts (and related parties from facilitating those specific acts). An increasingly prominent alternative is to withhold an injunctive remedy in view of the potential recovery of monetary relief. This article explores why, despite statutory language, case law precedent, and political consensus that website blocking should not occur, the sweeping remedy of site blocking (enjoining any facilitation of site access) continues to be available. It argues that site-blocking and orders to third parties not to index or provide services to a website are in tension with the Supreme Court's decision in eBay, the First Amendment case for narrowly targeted remedies when publishing and digital communication are at stake, the Digital Millennium Copyright Act's limiting language, remedial proportionality doctrine, and the failure of the Stop Online Piracy Act of 2011 in Congress. Remedial inequities are also emerging as between patent and copyright or trademark holders, because the bare loss of control of intellectual property is justifying copyright and trademark injunctions despite patent law cases suggesting that impaired exclusivity and negotiating leverage are not necessarily "irreparable" injury.

Daly et al on AI Governance & Ethics

Angela Daly (The Chinese University of Hong Kong (CUHK) - Faculty of Law; Queensland University of Technology - Faculty of Law; Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)), Thilo Hagendorff (University of Tuebingen), Hui Li (Shanghai Institute for Science of Science (China)), Monique Mann (Queensland University of Technology - Faculty of Law), Vidushi Marda (Article 19: Global Campaign for Free Expression), Ben Wagner (Vienna University of Economics and Business), Wei Wang (The University of Hong Kong - Faculty of Law), Saskia Witteborn (The Chinese University of Hong Kong (CUHK) - School of Journalism and Communication) have posted Artificial Intelligence, Governance and Ethics: Global Perspectives on SSRN.  Here is the abstract:

This report presents an overview of how government, corporations and other actors are approaching the topic of Artificial Intelligence (AI) governance and ethics across China, Europe, India and the United States of America. Recent policy documents and other initiatives from these regions, both from public sector agencies and private companies such as Microsoft are documented and a brief analysis is offered.

McLauchlan on Changes in the Contract Interpretation Law in England & Wales

David McLauchlan (Victoria University of Wellington - Faculty of Law) has posted A Sea Change in the Law of Contract Interpretation? on SSRN.  Here is the abstract:

This article challenges the recent extra-judicial argument of Sir Geoffrey Vos, Chancellor of the High Court of England and Wales, that there has been a “distinct sea change” in the law of contract interpretation as a result of the UK Supreme Court’s decisions in Rainy Sky SA v Kookmin Bank, Arnold v Britton and Wood v Capita Insurance Services Ltd. He suggests that these decisions have the effect that Lord Hoffmann’s well-known restatement of the law in Investors Compensation Scheme Ltd v West Bromwich Building Society, particularly his Lordship’s fourth and fifth principles, no longer represent the law. In his view, the position now is that a court must give the words of a contract their plain meaning except “in a most exceptional case or a case of obvious absurdity”. However, Professor McLauchlan argues that Sir Geoffrey reads more into the decisions than is warranted by the Supreme Court’s reasoning and that Lord Hoffmann’s restatement has survived largely unscathed. In substance, the reasoning spelt out what was either explicit or implicit in the restatement in the first place.

Avi-Yonah, Fishbien, & Mazzoni on Surrey

Reuven S. Avi-Yonah (University of Michigan Law School), Nir Fishbien (University of Michigan at Ann Arbor - Law School - SJD Candidate), Gianluca Mazzoni (University of Michigan at Ann Arbor - Law School - SJD Candidate) have posted Stanley Surrey, the Code and the Regime on SSRN.  Here is the abstract:

Stanley Surrey (1910-1984) was arguably the most important tax scholar of his generation. Surrey was a rare combination of an academic (Berkeley and Harvard law schools, 1947-1961 and 1969-1981) and a government official (Tax Legislative Counsel, 1942-1947; Assistant Secretary for Tax Policy, 1961-1969). Today he is mostly remembered for inventing the concept of tax expenditures and the tax expenditure budget. This paper will argue that while Surrey was influential in shaping domestic tax policy for a generation and had an impact after his death on the Tax Reform Act of 1986, his longest lasting contributions were in shaping the international tax regime, since the concept of the single tax principle that shapes contemporary international tax reform efforts can be traced directly to his writing and activities both in academia and in the government.

Wilf on Jewish Law

Steven Wilf (University of Connecticut School of Law) has posted Jewish Law (Oxford Handbook of Legal History (ed. Markus Dubber and Christopher Tomlins), Oxford University Press, 2018) on SSRN.  Here is the abstract:

Jewish law has often been considered a law without an army or a navy. It fits within the vexed category of what has been called “law without nations” where there is no coercive apparatus to enforce norms. Robert Cover’s Nomos and Narrative famously celebrates the absence of coercion through prison and corporal punishment in diasporic Jewish law, and instead—in his mythic reading of the past—claimed that social cohesion created its normative sinews. In contrast, proponents of deploying Jewish law as the normative grounding for a modern Jewish state, such as the late Israel Supreme Court Justice Menachem Elon, have argued that throughout the diaspora until the eighteenth century Jewish courts with significant policing power operated in Christian and Islamic lands. While these two historiographic narratives are clearly at odds, they share one fundamental presumption. Jewish law is identified as autonomous. This chapter takes the opposite approach. It argues that Jewish law’s distinctive nature is constructed from the ancient to the modern period in the midst of a complex, competing world of plural legalism. It will focus on how the choice of genre—code, Jurist debates, responsa, treatise, glossator commentaries, governance designed like Mishpat Ivri for a modern state, and dialectic jurisprudence expressed in religious idiom appropriated, resisted, and oddly conserved, often while claiming as its own, other forms of legalism—Greek, Roman, and modern law—to create the impression of being a legal other. Jewish law is a complex legal system, spanning millennia from its Biblical origins to the present, emerging from creative centers across the globe, punctuated by a vast corpus juris including monumental compilations and codes, and including over three hundred thousand known responsa (legal decisions). It is nearly impossible to characterize such a diverse legal tradition. Nevertheless, this chapter seeks to trace a longue durée narrative to underscore the significance of interrogating Jewish law’s material embodiment to apprehend its modes of appropriation.

Victor on Compulsory Copyright Licenses

Jacob Victor (NYU School of Law) has posted Reconceptualizing Compulsory Copyright Licenses (72 Stanford Law Review (2020, Forthcoming)) on SSRN.  Here is the abstract:

United States copyright law generally assumes that by providing property entitlements in creative works, the free market will balance between two competing priorities: incentivizing creators to produce works and providing the public with access to this content. But the Copyright Act also outlines several detailed compulsory licensing schemes requiring the owners of certain copyright interests, musical works in particular, to license to anyone at government-set prices. Consistent with broader property theory concepts, scholars tend to treat compulsory copyright licenses as liability rules used only to address market failures caused by transaction costs. This Article questions that account, arguing that compulsory licensing also plays an important and underexplored role in furthering copyright’s specific goals. A close analysis of the music regulatory regime and its history shows that its primary function has been to recalibrate the balance between creators’ financial incentives and public access to expressive works in situations where free market licensing would yield problematic outcomes. Unlike liability rules designed only to address transaction costs, for which regulators generally try to mimic market rates using market proxies, the compulsory music licensing regime traditionally used copyright policy-oriented rate-setting criteria. Applying these criteria, regulators often chose below-market royalty rates in order to allow access-expanding music dissemination technologies—from the player piano to digital radio—to flourish.

In recent years, however, policymakers have begun to lose sight of this access-encouraging role. A series of legislative changes, including the recent Music Modernization Act (“MMA”), have made the compulsory music licensing regime increasingly inconsistent and ill-equipped to handle new forms of music dissemination. Policymakers now seem to view compulsory licensing as only justified in the face of transaction costs-based market failures and, accordingly, have begun privileging market mimicking over copyright policy when choosing royalty rates. This shift has yielded increasingly high royalty rates, which have made it more difficult for new disseminators, such as streaming services, to facilitate access to music.

The Article argues that this shift away from policy-focused compulsory licensing prevents the regime from maintaining balance in the copyright system, a problem that is especially apparent in the experience of the burgeoning music streaming industry. In particular, a copyright policy-based approach is necessary to prevent the subjectivity and manipulability of market-mimicking rate-setting standards from yielding royalty rates that are unworkable for streaming services. Although the MMA has pushed the existing regime even further away from its original role by implementing a market-focused rate-setting standard, the Article suggests how regulators could still further copyright policy goals in future rate-setting proceedings.

Highly recommended.

Baude & Sachs on Originalism & History (Reposted)

William Baude (University of Chicago - Law School) & Stephen E. Sachs (Duke University School of Law) have posted Originalism and the Law of the Past (Law and History Review, Vol. 37, No. 3 (2019), Forthcoming) on SSRN.  Here is the abstract:

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law—which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught—and no more so—than applying Founding-era legal doctrines.

(c) The American Society for Legal History, Inc. 2019. The full article is to appear in Law and History Review, published by Cambridge University Press. https://www.cambridge.org/core/journals/law-and-history-review

Highly recommended.  I had forgotten that I had posted this a while ago.  But this paper is worth two posts!

Abdelaal on Scalia's Obergefell Dissent

Mohamed Abdelaal (Alexandria University - Faculty of Law; Indiana University Robert H. McKinney School of Law) has posted Obergefell v. Hodges: Rethinking Justice Scalia's Originalism (16 Dartmouth Law Journal 73 (2018)) on SSRN.  Here is the abstract:

Since Ronald Reagan appointed Justice Antonin Scalia to the U.S. Supreme Court in 1986, Scalia’s jurisprudence and judicial activity have been the subject of significant scholarly attention. The thesis of this article centers on the methodology adopted by the Court to create new unenumerated constitutional rights, and how Justice Scalia often rejects such methodology. In doing so, this article provides a critical analysis of the majority opinion in Obergefell v. Hodges, as well as the dissent of Justice Scalia. The article sheds light on the shortcomings of Justice Scalia's approach in his vicious attack on the Court for recognizing same-sex marriage as a constitutional right protected by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. However, this casts him as a pragmatic interpreter of the constitution more than an originalist. For the purposes of this article, my intention is not to digress into an analysis of the majority opinion in Obergefell. Instead, my primary focus will be to consider Justice Scalia's dissent. In doing so, I emphasize Scalia’s main disagreements with the majority before analyzing his dissent in an attempt to demonstrate how Justice Scalia, in several dissenting points, departed from originalist theory to a more pragmatic approach of constitutional construction.

Tanczer, Brass, Elsden, Carr, & Blackstock on Regulating the Internet of Things in the UK

Leonie Tanczer (University College London - Department of Science, Technology, Engineering and Public Policy (STEaPP)), Irina Brass (University College London - Department of Science, Technology, Engineering and Public Policy (STEaPP)), Miles Elsden (University College London - University College London, Department of Science, Technology, Engineering and Public Policy (STEaPP) Students), Madeline Carr (University College London - Department of Science, Technology, Engineering and Public Policy (STEaPP)), & Jason J Blackstock (University College London) have posted The United Kingdom's Emerging Internet of Things (IoT) Policy Landscape (In R. Ellis & V. Mohan (Eds.), Rewired: Cybersecurity Governance (pp. 37–56). Hoboken, New Jersey: Wiley) on SSRN.  Here is the abstract:

The chapter examines the institutional landscape that underpins the Internet of Things (IoT) in the UK, and reviews the government strategies and policies within which the IoT is developing. The rapid evolution of technology means that this review represents a synoptic snapshot: it identifies core challenges connected to the evolving interdependent ecosystem, and provides a recommendation for more adaptive policymaking in this space. The chapter extracts some general principles and lessons that can be applied more widely to the development of emerging technologies, including the use of forward‐thinking and monitoring policy tools in order to respond to new conditions and potential market failures. It does so through assessment of the IoT's inherent risks and uncertainties, the fragmentation of the UK’s institutional and policy landscape, and the IoT's respective governance challenges. The chapter concludes with future directions for researchers, practitioners, and policymakers, as well as an appeal to apply adaptive policymaking to the management of rapidly evolving IoT technologies.

Sharpless on Addiction & Immigration

Rebecca Sharpless (University of Miami - School of Law) has posted Addiction Informed Immigration Reform (Washington Law Review, Forthcoming) on SSRN.  Here is the abstract:

Immigration law fails to align with the contemporary understanding of substance addiction as a medical condition. The Immigration and Nationality Act regards noncitizens who suffer from drug or alcohol substance use disorder as immoral and undesirable. Addiction is a ground of exclusion and deportation and can prevent the finding of “good moral character” needed for certain immigration applications. Substance use disorder can lead to criminal behavior that lands noncitizens, including lawful permanent residents, in removal proceedings with no defense. The time has come for immigration law to catch up to today’s understanding of addiction. The damage done by failing to contemporize the law extends beyond the harms of unwarranted family separation due to the deportation or exclusion of people who suffer from substance use disorder. Holding noncitizens to an archaic standard threatens our civic and political identity as a diverse and democratic country. The bigger the gap between contemporary mores and immigration law and policy, the harder it is for U.S. citizens to develop a civic and political identity that is free of ethnic and racial animus. Double standards for citizens and noncitizens create cognitive dissonance, leaving society vulnerable to discriminatory or stereotypical views to justify the differential treatment. This phenomenon not only harms noncitizens but thwarts the formation of a national civic and political identity free of ethnic and racial bias. This Article proposes and explains the legislative reforms necessary to remedy the current state of immigration law’s treatment of substance use disorder.

Wilf on the Legal Treatise

Steven Wilf (University of Connecticut School of Law) has posted The Legal Treatise (Oxford Handbook of Law and Humanities (ed. Maksymilian Del Mar, Simon Stern, and Bernadette Meyler), Oxford University Press, 2019) on SSRN.  Here is the abstract:

The legal treatise is a subject with a pedigree. Four seminal articles by eminent legal historians have defined how we think about this particular fabrication of literary form. Writing in the midst of debates over critical analysis of law, A.W.B. Simpson identified the treatise as a common law form of summation for legal doctrine. Its rise was marked by nineteenth-century demands for a tidy form of legal thinking while the doctrinal skepticism of legal realism doomed the genre by the 1930s. Morton Horwitz underscored the importance of treatises for legal historians. In his view, the genre serves as a freeze-frame of law as it is conceived in a given moment of time. Angela Fernandez and Markus Dubber argued that the treatise was a more or less stable mixture of law as it is and law as it should be. They foregrounded the utopian dimension within the legal treatise. Christopher Tomlins identified the treatise as a legal technology with set purposes. Many of these purposes are deeply instrumental—and the very act of recordation is an exercise of power. This essay disembarks from these important contributions. Drawing upon such diverse fields as the history of the book, literary genre studies, information management, and the sociology of knowledge, it underscores the multiplicity of the treatise’s genre ecosystem. The legal treatise simultaneously serves as a site for the production of knowledge, a stepping-stone or even substitute for codes, fabricated order, a mechanism for establishing authorial authority, a professional talisman, a technic of systematizing and organizing information, a legitimization of existing norms, and a means of constructing a national jurisprudence akin to the way a dictionary might define a national language. The essay focusing largely on common law treatises of the long nineteenth-century will examine these and other purposes operating within the social context of the legal profession. How do these competing goals exist within a single literary artifact? What pressures threaten to unravel the legal treatise’s claims to monumental authority? The essay’s salient contribution will be its highlighting the importance of time. The legal treatise is a genre which simultaneously asserts its place as a summa of legal knowledge and—as the commonplace historical introduction especially underscores—will be subject to countless revisions. It is a text readied for obsolescence. Beneath the treatise’s façade of professional authority lies a profound anxiety about its own timelessness.

Dominiak on Libertarianism & Easements by Necessity

Lukasz Dominiak (Nicolaus Copernicus University) has posted Must Right-Libertarians Embrace Easements by Necessity? on SSRN.  Here is the abstract:

The present paper investigates the question of whether right-libertarians must accept easements by necessity. Since easements by necessity limit the property rights of the owner of the servient tenement, they apparently confl ict with the libertarian homestead principle, according to which the person who fi rst mixes his labor with the unowned land acquires absolute ownership thereof. As we demonstrate in the paper, however, the homestead principle understood in such an absolutist way generates contradictions within the set of rights distributed on its basis. In order to avoid such contradictions, easements by necessity must be incorporated into the libertarian theory of property rights and the homestead principle must be truncated accordingly.

Peukert on Polanyi & IP Theory

Alexander Peukert (Goethe University Frankfurt - Faculty of Law; Cluster of Excellence Normative Orders) has posted Fictitious Commodities: A Theory of Intellectual Property Inspired by Karl Polanyi’s 'Great Transformation' (29 Fordham Intell. Prop. Media & Ent. L.J. 1151 (2019)) on SSRN.  Here is the abstract:

The puzzle this Article addresses is this: how can it be explained that intellectual property (IP) laws and IP rights (IPRs) have continuously grown in number and expanded in scope, territorial reach, and duration, while at the same time have been contested, much more so than other branches of property law? This Article offers an explanation for this peculiar dynamic by applying insights and concepts of Karl Polanyi’s book “The Great Transformation” to IP. It reconstructs and then applies core Polanyian concepts of commodification (infra, II), fictitious commodities (infra, III), and countermovements (infra, IV) to the three main areas of IP, namely copyrights, patents, and trademarks, as they have evolved and are currently regulated in international and selected national laws. The analysis reveals that the history of IP can be told in terms of Polanyi’s famous “double movement”: efforts to commodify virtually every reproducible input/output face equally persistent opposition, which points out the disruption that IPRs inflict upon communication and competition. Whereas IPRs dis-embed informational artifacts from the uninterrupted flow of societal exchange and subject them to prior authorization requirements, IP countermovements call for their re-embedding, i.e. their usability irrespective of authorization. From a normative perspective, a Polanyian perspective on IP suggests that IP law and policy should ensure that market-based transactions coexist with non-market modes of accessing and sharing information so that authors, inventors, and other entrepreneurs have as many options as possible.

Lifshitz on Private Energy

Yael R. Lifshitz (King's College London – The Dickson Poon School of Law) has posted Private Energy (Stanford Environmental Law Journal, Vol. 38, 2019) on SSRN.  Here is the abstract:

Energy is key to our modern lives. Until recently, energy was generated by centralized utilities. That, however, is changing. Fundamental shifts in the generation and consumption of electricity are underway. In the age of “distributed generation,” when you and I can install solar panels on our roof and a battery in our garage, we are all part of the energy field. This Article argues that along with the blending of technological categories comes a shift in the legal categories as well. Energy law scholars have traditionally focused on the public law aspects of electricity production and consumption. This framework was indeed apt for the age of centralized energy. But in an era where electricity production is increasingly dispersed, looking at the energy field solely through the lens of public law misses the full picture. Focusing specifically on property law, the Article thus unearths the new property-energy connection that has emerged along with the rise of distributed generation. It then shows why policy-makers seeking to advance the adoption of distributed generation should pay attention, in addition to other things, to the underlying web of private law regimes.

Craig on General Principles of EU Law

Paul P. Craig (University of Oxford - Faculty of Law) has posted General Principles of Law: Treaty, Historical and Normative Foundations (Katja Ziegler, Päivi Neuvonen, and Violeta Moreno-Lax (eds), Research Handbook on General Principles of EU Law (Edward Elgar Press, Forthcoming)) on SSRN.  Here is the abstract:

This chapter is concerned with general principles of law in the context of EU law. There is a very considerable literature that deals with such principles, or aspects thereof in the EU.

There are, however, numerous areas of contestation concerning, inter alia, general principles of law as an intellectual category, and the meaning or application of particular principles that fall within this genre. This chapter considers three foundational issues.

The first concerns the textual provenance of general principles within the constituent Treaties. The ECJ has, as will be seen, been relatively unforthcoming about this issue. It will be argued that general principles of law are best conceptualised as resting on Article 19 TEU in combination with Article 263 TFEU. To rest general principles solely on Article 19 TEU is to make the word ‘law’ therein bear a very heavy conceptual load, and ignores historical source material that locates such principles within the grounds of review in what is now Article 263 TFEU.

The second foundational issue concerns the historical development of general principles within the emerging Community legal order. There is much here that is imperfectly understood. The historical dimension begins by tracing back what the framers of the ECSC Treaty understood by the phrase ‘any rule of law relating to application’ of the Treaty, which originally appeared in Article 33 ECSC, and was carried over to Article 173 EEC. There is, as will be seen, empirical evidence that it was intended to cover, inter alia, general principles of law. There was, however, a double equivocation in the case law from the 1950s and 1960s: there was uncertainty as to what exactly the phrase general principles of law was intended to connote; and insofar as the phrase was invested with its modern meaning there was, nonetheless, uncertainty as to whether such principles applied across the entirety of the Community legal order. These twin uncertainties were only resolved by seminal decisions in the early 1970s, the import of which is still imperfectly understood.

The third foundational issue is normative in nature. Thus, the final part of the chapter considers the formal and substantive legitimacy of general principles of law within the EU legal order. It will be argued that general principles rest on sound formal foundations, and that there is a good deal to be said in favour of their substantive legitimacy. There are, nonetheless, concerns about the power that the concept of general principles vests in the EU courts, and these concerns are considered within this part of the chapter.