Legal Theory Blog

Buckley, Arner, Zetzsche, & Selga on Technological Financial Risk

Ross P. Buckley (University of New South Wales (UNSW) - Faculty of Law), Douglas W. Arner (The University of Hong Kong - Faculty of Law), Dirk A. Zetzsche (Universite du Luxembourg - Faculty of Law, Economics and Finance; Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)) & Eriks Selga (The University of Hong Kong, Faculty of Law, Students) have posted The Dark Side of Digital Financial Transformation: The New Risks of FinTech and the Rise of TechRisk on SSRN.  Here is the abstract:

Over the past decade a long-term process of digitization of finance has increasingly combined with datafication and new technologies including cloud computing, blockchain, big data and artificial intelligence in a new era of FinTech (“financial technology”). This process of digitization and datafication combined with new technologies is taking place in developed global markets and at times even faster in emerging and developing markets. The result: cybersecurity and technological risks are now evolving into major threats to financial stability and national security. In addition, the entry of major technology firms into finance – TechFins – brings two new issues. The first arises in the context of new forms of potentially systemically important infrastructure (such as data and cloud services providers). The second arises because data – like finance – benefits from economies of scope and scale and from network effects and – even more than finance – tends towards monopolistic or oligopolistic outcomes, resulting in the potential for systemic risk from new forms of “Too Big to Fail” and “Too Connected to Fail” phenomena. To conclude, we suggest some basic principles about how such risks can be monitored and addressed, focusing in particular on the role of regulatory technology (“RegTech”).

Tung on Debtor-in-Possession Lenders & Chapter 11

Frederick Tung (Boston University School of Law) has posted Financing Failure: Bankruptcy Lending, Credit Market Conditions, and the Financial Crisis (Yale Journal on Regulation, Vol. 37, 2020) on SSRN.  Here is the abstract:

When contemplating Chapter 11, firms often need to seek financing for their continuing operations in bankruptcy. Because such financing would otherwise be hard to find, the Bankruptcy Code authorizes debtors to offer sweeteners to debtor-in-possession (DIP) lenders. These inducements can be effective in attracting financing, but because they are thought to come at the expense of other stakeholders, the Code permits these inducements only if no less generous a package would have been sufficient to obtain the loan.

Anecdotal evidence suggests that the use of certain controversial inducements — I focus on roll-ups and milestones — skyrocketed in recent years, leading critics to question whether DIP lenders were abusing their power. Lenders, however, respond that DIP loan terms simply reflect economic conditions: When credit is tight, as it was in recent years because of the Financial Crisis, more sweeteners are needed to induce lending.

Using a hand-collected dataset reflecting contractual detail in DIP loan agreements, I examine the relationship between changes in credit availability and DIP loan terms before, during, and after the Crisis. As one might expect, I find that ordinary loan provisions like pricing and reporting covenants are sensitive to changes in credit availability. By contrast, I also find that the incidence of so-called “extraordinary provisions” has no statistically meaningful relationship with changes in credit availability. These findings have important implications for bankruptcy policymakers and judges struggling to evaluate whether extraordinary DIP lending inducements are necessary. Too-generous loan terms come at the expense of junior claimants and may distort the bankruptcy process in favor of senior claimants.

Lindseth on Ultra-Sociality & the Evolution of Public Law

Peter L. Lindseth (University of Connecticut School of Law) has posted Evolutionary Public Law: Constituting and Administering Human Ultra-Sociality (Oxford Handbook of Comparative Administrative Law (Cane, Hofmann, Ip, & Lindseth, eds., OUP forthcoming)) on SSRN.  Here is the abstract:

This chapter reflects on how public law, and more specifically constitutional and administrative law, can be understood as expressions of what evolutionary anthropologists and other specialists call human ‘ultra-sociality’. The analysis extends on a framework theory of institutional foundation and change, as well as the ‘metabolic’ function of constitutions as opposed to administrative bodies, that I have introduced elsewhere and now seek to refine in light of the evolutionary perspective this chapter develops. The ultimate focus is on the emergence of a cultural-evolutionary phenomenon — a pervasive conception of ‘right’ (what we now call public law) — that was bound up with, and in turn fed into, the phase transitions that marked the emergence of increasingly complex societies and polities (‘states’) over the course of human history. The chapter focuses on three interrelated, foundational phase transitions in particular: first, the emergence of a collective capacity to mobilize surplus human and fiscal resources (‘blood’ and ‘treasure’); second, the emergence of a social-psychological sense of legitimate political obligation; and, third, the emergence of scalable forms of political and legal management as between a governing principal — the person/institution to which political obligation and legitimacy is ultimately owed — and agents who are understood to carry out tasks on behalf of the principal. Obviously, this third transition comes closest to the concerns of this volume (indeed, such principal-agent mechanisms are arguably central to what today we understand to be administrative law). Nonetheless, by stressing the importance of the first two developments as a predicate to the third, this chapter stresses that we cannot understand how a polity is administered without first understanding how it is constituted. Indeed, one of the main advantages of the evolutionary perspective is that it helps us better understand how the constitutional and administrative dimensions of state formation are in fact inextricably intertwined, two sides of the same ‘ultra-social’ governance coin.

Ohnesorge on the Development of Administrative Law in Japan, South Korea, and Taiwan

John K.M. Ohnesorge (University of Wisconsin Law School) has posted Western Administrative Law in Northeast Asia: A Comparativist's History on SSRN.  Here is the abstract:

This study sets out to develop and test a series of arguments about relationships between state, law, and economy in Northeast Asia. The doctrinal focus is on administrative law, broadly defined, while the substantive focus is on economic governance, in particular the means by which three states in the region used public authority to shape industries and industrialization trajectories. The historical scope will be broad, tracing the development of administrative law in Japan, South Korea and Taiwan, from the initial importation of Western public law models in the late·nineteenth century until today. The final chapter discusses the People's Republic of China, and the possibilities for administrative law in that society.

Tontrup & Sprigman on Experiments on Self-Nudging

Stephan Tontrup (New York University School of Law) & Christopher Jon Sprigman (New York University School of Law; New York University (NYU) - Engelberg Center on Innovation Law & Policy) have posted Experiments on Self-Nudging, Autonomy, and the Prospect of Behavioral-Self-Management on SSRN.  Here is the abstract:

Strategies based in behavioral economics have quickly gained major importance in shaping public policy, most notably in the form of "nudges" that promise to promote, but not to force, socially-productive choices at low cost. Nudging interventions typically presume some asymmetry of sophistication and power between the choice architect and the nudged. But the nudged need not be relegated to a passive role. We present evidence that individuals have the capacity to overcome their biases, and even to use them to their advantage. This capacity for Behavioral-Self-Management (BSM) can allow them to "self-nudge" and to act as the choice architects of their future-self.

In our study we provide workers with the autonomy to choose among a variety of loss-framed and gain-framed contracts to perform a real effort task. The results show that subjects can harness their own loss aversion as a commitment device to significantly improve their performance.

The contract gives individuals the authority to self-nudge. This autonomy to choose adds to the effectiveness of their BSM strategy. We show that subjects experience self-determination utility separate from performance benefits driven by better adjustment of work tasks to subjects’ production functions. To demonstrate the policy relevance of our results we expand on an application to retirement savings-plans, which we suggest may lift savings rates at no additional cost.

Recommended.

Richman on New Institutional Economics & New Private Law

Barak D. Richman (Duke University - School of Law) has posted New Institutional Economics (Oxford Handbook of New Private Law,Henry Smith et al eds., Forthcoming) on SSRN.  Here is the abstract:

This entry in the Oxford Handbook of New Private Law describes the parallels and mutual dialog between New Institutional Economics (NIE) and New Private Law (NPL). It observes that both fields share more than the word 'new' in their titles. NPL and NIE share methodological orientations; they share scholarly priorities; they have influenced each other; and they offer parallel paths ahead. The fields also reinforce each other, as NIE focuses on problems governed by private law and, reciprocally, private law reflects the teachings of NIE. And both scholarly movements share common principles: both NPL and NIE exhibit the hallmarks of interdisciplinary, scholarly pluralism, and an inquisitive focus on real-world, tractable problems. The chapter concludes with some thoughts about the future of NPL, and in particular the lessons it can take from NIE’s successes.

Recommended.

Underkuffler on International Recognition of the Rights of Sub-State Groups

Laura Underkuffler (Cornell University - Law School) has posted Why Sub-State Groups Are Endowed with Rights (Chiara Giorgetti & Natalie Klein, eds., Resolving Conflicts in the Law: Essays in Honour of Lea Brilmayer (Brill Nijhoff 2019)) on SSRN.  Here is the abstract:

When should international law recognize sub-state groups and, consequently, their demands? Surprisingly, in the new and vast literature dealing with the questions of sub-state groups and their rights in international law, there is little discussion of this question. Usually it is assumed that certain cultural, racial, or religious groups qualify for international recognition, and others (implicitly) do not. Those scholars who have more deeply studied this question generally identify general abstract criteria for group-rights recognition, such as the permanency and involuntariness of group identity, the importance that members of the group ascribe to group identity, the numerical inferiority of group members, and so on. In this chapter, the author concludes that the identification of such abstract criteria for sub-state group qualification is of limited usefulness, and can exclude otherwise deserving groups. Rather, the recognition of a sub-state group as a rights-bearing entity is necessarily a function of deeper normative questions, and what international legal recognition in fact seeks to achieve.

Recommended.

Marcus on a Common Law Perspective on the United States Supreme Court

Richard Marcus (University of California Hastings College of the Law) has posted A Common Law Perspective on the Supreme Court and its Functions (81 Studia Iuridica 15 (2019)) on SSRN.  Here is the abstract:

The University of Warsaw is to be commended for focusing attention on the role of a supreme court, for that can be a critical component of a court system and, more generally, critical also to the fair functioning of a democratic government (and to others, no doubt). It makes sense to start out such a conference considering the roles a Supreme Court can play in a judicial system, and also to approach that question with an eye to the somewhat divergent attitudes toward the judicial role of common law and civil law systems. Those differences may mean a lot for the role of such a court and for the organization of the Court, a topic to be taken up by the next panel. I hope I will not trespass too much on topics to be addressed by others in my presentation. I will argue that questions of design and function – while important – probably are not more important than more elusive questions about institutional status and evolution, something one could refer to as “legal culture.” So we must approach our analysis with considerable humility. Particularly here in the countries of the former Warsaw Pact, where constitutional and democratic institutions have taken root over the last quarter century, it is important to appreciate the permutations of that sort of development.

I am here as the representative of the common law approach to the function of a Supreme Court, and will begin by cautioning that in some ways the common law v. civil divide is not entirely informative in regard to procedure, but that it is highly important in terms of the role of judges in “declaring” law. I will also speak mainly about the Supreme Court of my country, for it is a distinctive institution. That said, the US situation offers an example of functions a court may have that differs from the function of courts in many other judicial systems, and those differences can importantly be said to relate to its role in a common law system. At the same time, I will regard such questions as whether the Supreme Court should have the power of judicial review of legislation as somewhat background. In the US, as is well known, we have had such review since Marbury v. Madison, but that 1803 decision did not immediately place a stamp on our Court that remained unchanged for the ensuing 200 years.

Meshel & Yahya on International Freshwater Dispute Resolution

Tamar Meshel (University of Alberta Faculty of Law) & Moin A. Yahya (University of Alberta - Faculty of Law) have posted International Water Law and Fresh Water Dispute Resolution: A Coasean Perspectiven on SSRN.  Hereis the abstract:

When it comes to resolving interstate freshwater disputes, International Law has developed a set of rules that relate to both the substance of these disputes, and the conduct of the disputing countries. ‘Equitable and reasonable utilization’ is commonly considered as the leading ‘substantive’ rule, ‘no significant harm’ as subsidiary to it, and the ‘duty to cooperate’ as the central ‘procedural’ rule. The purpose of this article is to analyze the merits of these substantive and procedural rules under the lens of the celebrated Coase theorem. The second part of the Coase Theorem observes that if transaction costs are present, then the legal rule governing the dispute between two parties should be one that minimizes the bargaining costs. This will ensure that the legal rule will generate an optimal allocation of resources. When it comes to international freshwater disputes there are usually high transaction costs such as unequal and asymmetric access to information by both the disputing parties and adjudicating tribunal, enforcement uncertainty, and unclear political goals of the parties. Therefore, a liability rule such as ‘equitable and reasonable utilization’ only furthers the uncertainty and bargaining costs, whereas a property rule such as ‘no significant harm’ is better at achieving dispute resolution (both theoretically and empirically). Moreover, when a so-called procedural rule such as the ‘duty to cooperate’ is imposed on the parties, this ensures a better negotiation environment, which leads to better dispute resolution outcomes even when imposed by a third party.

Braver on the History of Court Packing

Joshua Braver (Harvard Law School) has posted The Myth of Recurrent Court-Packing on SSRN.  Here is the abstract:

This article provides the first comprehensive and conceptual account of all increases and decreases to the Supreme Court’s size. In today’s debate over court-packing, proponents cite and opponents concede that there is ample precedent for the tactic. Against this prevailing consensus, I argue that, although the Court’s size has changed seven times, court-packing is nearly novel in American history and that it poses unprecedented dangers because it lacks the limiting principles present in previous changes to the Supreme Court’s size. I define court-packing as manipulating the number of Supreme Court seats primarily in order to alter the ideological balance of the Supreme Court. Previous changes to the court’s size fall into two groups, both of which are distinct from court-packing. The first group were tied to the practice of circuit-riding, a now obsolete system that required the addition of Supreme Court Justices to staff newly created circuit courts. The second group were reductions followed by restorations of the Court’s previous size. In both groups, the changes to the Court’s size presented little of the perils that packing poses today.

The article concludes by explaining why the elected branches have sought and how they have managed to successfully curb the Supreme Court without leaving a permanent taint on its legitimacy. In an age of rising populism, the next step for scholars of constitutional hardball and departmentalism is to set outer boundaries on the attacks on the Court that they encourage.

Highly recommended.  Download it while it's hot!

Barzun on the Genetic Fallacy and a Living Constitution

Charles L. Barzun (University of Virginia School of Law) has posted The Genetic Fallacy and a Living Constitution (Constitutional Commentary, Vol. 34, No. 3. (2019)) on SSRN.  Here is the abstract:

Should the historical origins of some principle or practice affect how we think about it today? Under one standard view, the answer is “no”; to think otherwise is to commit a fallacy – specifically, the “genetic” fallacy. But in legal argument, origins often seem to matter a great deal. This essay takes up the question of whether, or under what conditions, it is right for them to do so. It shows that under at least three models of legal reasoning — reasoning by authority, reasoning for the sake of integrity, and a third form of reasoning that I call ad hominem argumentation — historical explanations are properly relevant to the legal analysis. Legal theorists have yet to even recognize this third, ad hominem model of reasoning as a distinct form of legal argument. But they should. It not only best accords with one very traditional understanding of the common law; it also explains the logic and appeal of a “living constitution,” as the Supreme Court conveyed in one of its most controversial decisions of the last few decades: Planned Parenthood of Southeastern Pennsylvania v. Casey.

Highly recommended.

Donelson on Claims about the Nature of Law

Raff Donelson (Louisiana State University, Baton Rouge) has posted Describing Law (33 Canadian Journal of Law and Jurisprudence (2020)) on SSRN.  Here is the abstract:

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can see them as claims that must be assessed on the basis of practical reasons (pragmatism). Ultimately, this paper argues that we should understand these claims in the pragmatist way; as such, jurisprudential claims are about what to do, e.g., what to treat as law and how to order society.

Highly recommended.

Underkufflern on Corruption in Law (Link Fixed)

Laura Underkufflern (Cornell University - Law School) has posted Captured by Evil: The Idea of Corruption in Law on SSRN.  Here is the abstract:

Draft- Harvard University Workshop 2005. A more extensive treatment can be found in Laura S. Underkuffler, Captured by Evil: The Idea of Corruption in Law (Yale University Press 2013).

What is corruption - as a legal, cultural, and political idea? This work argues that corruption is one of the most troubled concepts in law. Contemporary western ideas of law assume that law involves knowable and articulable standards that are neutral, logical, and demystified. Corruption defies these limits. This work explores the implications of this for legal treatments of corruption and for the use of corruption as a condemnatory idea in journalistic, cultural, and political accounts.

Recommended.

Legal Theory Lexicon: Holism

Introduction

Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.

And before we get on with it, a brief digression on the origins of the phrase. The idea of the law as a seamless web seems to be derived from a related idea--that history is a seamless web--found in the writiings of Frederic Maitland: "Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web." Frederic William Maitland, A Prologue to a History of English Law, 14 L.Querterly Rev. 13 (1898) (online version).

Ideas about legal holism may also have been influenced by philosophical ideas about holism and in particular "meaning holism"--a notion that is strongly associated with Quine.

The Law is a Seamless Web

The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.

Coherence and Holism

The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.

Coherence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”

Herculean Holism

Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.

Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.

Holism versus Particularism

So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.

At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).  Legal particularism may be related to the analagous view in moral theory and the idea of the "priority of the particular."

Is Holism Normative, Descriptive, or Interpretive?

Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.

Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.

Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.

Conclusion

The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.

Related Entries

• Legal Theory Lexicon 059: The Law Is A Seamless Web
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography

• Scott Brewer, Figuring The Law: Holism and Tropological Inference in Legal Interpretation, 97 Yale L.J. 823 (1988).
• Andrei Marmor, Coherence, Holism, and Interpretation: The Epistemic Foundations of Dworkin's Legal Theory  10 Law and Philosophy 383-412 (1991).
• Frederic William Maitland, A Prologue to a History of English Law, 14 L.Querterly Rev. 13 (1898) (online version).
• Henry Jackman, Meaning Holism, Stanford Encyclopedia of Philosophy (2014).

(Last revised on November 17, 2019.)

Legal Theory Bookworm: "Theaters of Pardoning" by Meyler

The Legal Theory Bookworm recommends Theaters of Pardoning by Bernadette Meyler.  Here is a description:

From Gerald Ford's preemptive pardon of Richard Nixon and Donald Trump's claims that as president he could pardon himself to the posthumous royal pardon of Alan Turing, the power of the pardon has a powerful hold on the political and cultural imagination. In Theaters of Pardoning, Bernadette Meyler traces the roots of contemporary understandings of pardoning to tragicomic "theaters of pardoning" in the drama and politics of seventeenth-century England. Shifts in how pardoning was represented on the stage and discussed in political tracts and in Parliament reflected the transition from a more monarchical and judgment-focused form of the concept to an increasingly parliamentary and legislative vision of sovereignty.

Meyler shows that on the English stage, individual pardons of revenge subtly transformed into more sweeping pardons of revolution, from Shakespeare's Measure for Measure, where a series of final pardons interrupts what might otherwise have been a cycle of revenge, to later works like John Ford's The Laws of Candy and Philip Massinger's The Bondman, in which the exercise of mercy prevents the overturn of the state itself. In the political arena, the pardon as a right of kingship evolved into a legal concept, culminating in the idea of a general amnesty, the "Act of Oblivion," for actions taken during the English Civil War. Reconceiving pardoning as law-giving effectively displaced sovereignty from king to legislature, a shift that continues to attract suspicion about the exercise of pardoning. Only by breaking the connection between pardoning and sovereignty that was cemented in seventeenth-century England, Meyler concludes, can we reinvigorate the pardon as a democratic practice.

And from the reviews:

"Theaters of Pardoning brilliantly demonstrates the close link between sovereignty and pardoning in English law. Bernadette Meyler's deep knowledge, combined with her breathtaking breadth and depth, has resulted in a truly remarkable project  (Julia R. Lupton, University of California, Irvine, author of Shakespeare Dwelling)

"I read this book with real interest and genuine excitement about its interventions in the field of Shakespeare studies and the larger fields of law, literature, and political philosophy. Theaters of Pardoning is elegant, persuasive, and impressive." (Henry S. Turner, Rutgers University, author of The Corporate Commonwealth)

"At a time of international obsession with the power to pardon, Bernadette Meyler's Theaters of Pardoning could not be more timely or trenchant. Meyler deftly traces the genealogy of pardons through the various "theaters" in which they were performed―from the dramatic, to the legal, to the social―in seventeenth-century England. She argues that the tension internal to the traditional pardon, which excused individuals from the power of the state precisely by amplifying the sovereign's absolute power, ill suits such pardons for a liberal democracy committed to the rule of law. Meyler then reconstructs the pardon power by looking at possibilities elaborated in literature, though not yet in law―contending for a move from pardons bestowed by sovereigns to forgiveness granted by citizens to each other. As I watched the argument unfold, I was hard pressed to think of another scholar today with such a muscular command of political, legal, and literary theory." (Kenji Yoshino, New York University)

Download of the Week: "The Lessons of Lone Pine" by Engstrom

Nora Freeman Engstrom (Stanford Law School) has posted The Lessons of Lone Pine (Yale Law Journal, Vol. 129, 2019) on SSRN.  Here is the abstract:

Over the past three decades, Lone Pine orders have become a fixture of the mass- tort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with prima facie injury, exposure, and causation evidence by a date certain — or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it’s not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device.

But that’s just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen — and, in places, complicate — our understanding of these profoundly influential phenomena.

Highly recommended.

Mańko on "Towards a Jurisprudence of State Communism" by Cercel

Rafał Mańko (University of Amsterdam - Centre for the Study of European Contract Law (CSECL)) has posted Book Review: C.S. Cercel, Towards a Jurisprudence of State Communism: Law and the Failure of Communism (Routledge 2019) ((2019) 10(1) Journal on European History of Law 197) on SSRN.  Here is the abstract:

The monograph "Towards a Jurisprudence of State Communism" by Dr Cosmin Sebastian Cercel, published in 2018 by Routledge, is a very important piece of scholarship at the interstices of legal history, history of legal ideas and legal theory. It addresses the phenomenon of actually existing socialism or – as the Author prefers to call it – state communism in its juridical dimension. Cercel’s main claim is that state communism was not only a political phenomenon, but also a juridical one it its own right. In other words, state communism should not be treated as a form of illegality or counter-legality, but as a specific modality of the juridical. This claim has significant consequences: firstly, the legal life of state communism should not be dismissed as inexistent or merely a façade, but instead it is a legitimate object of research as a form of legality. Secondly, the study of state-socialist legality can reveal certain more general features of the juridical as such and therefore can be helpful to understand the juridical phenomenon in general. For these reasons, Cercel’s monograph can be described as groundbreaking both in the area of legal history and legal theory. Concluding, Cosmin Cercel’s monograph can be regarded as a much needed book on the legal theory of actually existing socialism, filling a significant lacuna in the existing literature on the subject. At the same time, thanks to his approach, inspired by critical theory, Cercel’s book constitutes an original input into the development of critical jurisprudence. By addressing the links between the juridical and the partial failure of the Russian Revolution of 1917 to deliver upon its promises of emancipating human subjects from violence perpetrated in the name of the law, Cercel contributes to the ongoing theoretical debates within critical legal theory. The book can definitely be recommeded for (critical) legal theorists, legal historians, historians of legal and political ideas, but also political and social theorists, as well as political philosophers. It provides a unique insight into the essence of the juridical and into the socialist legal experience.

Wood & Thro on the Florida State Constitution's Education Provision

R. Craig Wood and William E. Thro (University of Florida and University of Kentucky) have posted Puffery or Law: Reflections on the Florida School Finance Decision (961 Education Law Reporter 961 (2019)) on SSRN.  Here is the abstract:

The Supreme Court of the United States has recognized that “education is perhaps the most important function of state and local governments,” and has stressed “the importance of education in maintaining our basic institutions.…” Yet, when confronting a claim that state legislatures had violated the National Constitution by refusing to fund local schools equally, the Court found education was not a federal fundamental right. Similarly, every State Constitution requires the State Legislature to establish a public school system and the State Legislatures have enacted a variety of statutes in an attempt to meet the state constitutional obligations. Nevertheless, virtually every State has seen a school finance suit—a claim the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner. In some States, such as Kentucky and Texas, these efforts have resulted in significant finance reform, but in other States, the result has been a genuine constitutional crisis where the legislature has refused to comply with the judicial mandates.

The recent Florida school finance decision represents a different approach. Although the People of Florida amended their State Constitution to add language, which seemingly imposed the highest possible duty on the State Legislature, the Supreme Court of Florida determined that these words were “puffery” rather than law. Because the words were puffery rather than a substantive limitation on constitutional actors, the Court found the claims to be non-justiciable.

Halmai on Illiberal Constitutionalism in East-Central Europe

Gábor Halmai (European University Institute - Department of Law (LAW)) has posted Illiberalism in East-Central Europe on SSRN.  Here is the abstract:

In the paper I try to answer the question, whether there is a genuine constitutional theory of ‘illiberal constitutionalism,’ recently advocated in some East-Central European member states of the European Union, especially in Hungary and Poland. As I demonstrate, court ideologists of populist autocrats use Carl Schmitt’s concept of political sovereignty and collective identity of the people, or misuse Max Weber’s leader democracy or Richard Bellamy’s or others’ political constitutionalism ideas to legitimize authoritarian aims. I argue that the constitutional concept, which rejects liberalism as a constitutive precondition of democracy, cannot be in compliance with the traditional idea of liberal democratic constitutionalism. This concept has nothing to do with any majoritarian constitutional model based on the separation of power, or with political constitutionalism, or any kind of weak judicial review, and it misuses the concept of constitutional identity.

One of the reasons of the illiberal turn has been that there was a lack of consensus about liberal democratic values at the time of the transition. In the beginning of the democratic transitions in these new democracies, preference was given to general economic effectiveness over mass civic and political engagement. According to some authors, the prospects for liberal constitutional democracy in the newly independent states of Central and Eastern Europe following the 1989–90 transition were diminished by a technocratic, judicial control of politics, which blunted the development of civic constitutionalism, civil society, and participatory democratic government as necessary counterpoints to the technocratic machinery of legal constitutionalism. But, there is nothing to suggest that an earlier and more participatory constitution-making process would have prevented the populist turn. Those proponents of participatory constitutionalism do not sufficiently take into account the rise of populism and the lack of civic interest in constitutional matters, due to poor constitutional culture. The recent success of illiberalism in the region seems to indicate that the special historical circumstances require a longer period of time the build up a liberal democratic political and constitutional culture. But the democratic backsliding is not a proof of the failure of liberal democracy altogether, as illiberal leaders and their court ideologists want people to believe.

Keck on Court Packing

Thomas M. Keck (Syracuse University - Maxwell School of Citizenship and Public Affairs) has posted Court-Packing and Democratic Erosion on SSRN.  Here is the abstract:

When and under what conditions should democratic opposition play constitutional hardball to oppose anti-system parties, especially with respect to judicial reform? The literature on democratic erosion suggests that independent courts may sometimes operate as guardrails of democracy, but also that once captured by anti-system parties, courts may serve as effective agents of democratic erosion. This paper surveys this literature for key lessons regarding the role of courts in polities where democratic erosion is underway. It then draws on the history of Court-packing in the United States in an effort to confirm and sharpen these lessons. Levitsky and Ziblatt’s influential argument is that opposition to authoritarian behavior should avoid hardball and should, instead, “seek to preserve, rather than violate, democratic rules and norms.” Their emphasis on normative preservation, however, fails to distinguish between constitutional hardball in service of democratic erosion and constitutional hardball in service of democratic preservation or renewal. This paper applies the distinction between democratic-eroding and democratic-renewing hardball to the role played by the current Supreme Court in ongoing processes of democratic deterioration in the United States, concluding that Democratic Court-expansion, combined with institutional reform of the judicial selection process, may be the least-bad option for restoring the Court’s role as democratic guardrail.

Citron on Sexual Privacy & Intimate Relationships

Danielle Keats Citron (Boston University School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society) has posted Why Sexual Privacy Matters for Trust (Washington University Law Review, Vol. 96, No. 6, 2019) on SSRN.  Here is the abstract:

Every generation has preferred modes of self-disclosure. Not long ago, lovers revealed their thoughts, desires, and secrets over the phone and in letters. Today, they exchange personal histories and nude photos via text and online chats. Yet no matter the era’s chosen mode of communication, the success of intimate relationships depends upon sexual privacy. Intimacy can develop only if partners trust each other to treat their self-revelations with discretion and care. Self-disclosure, however, is difficult after one’s nude photos have been posted online or one’s intimate encounters have been videotaped without permission. Individuals refrain from dating for fear that their intimate revelations will again be surveilled and exposed in unwanted ways. Sexual privacy invasions thus undermine the possibility of intimate relationships.

Law should punish intimacy-destroying invasions of sexual privacy, and market efforts should be trained on their prevention and mitigation. Some private responses, however, require a healthy dose of skepticism as they over-promise and under-deliver for sexual privacy.

Recommended.

Mańko on Kozak on Juriscentrism

Rafał Mańko (University of Amsterdam - Centre for the Study of European Contract Law (CSECL)) has posted Artur Kozak's Juriscentrist Concept of Law: A Central European Legal Innovation ((2020) 45 Review of Central and East European Law, Forthcoming) on SSRN.  Here is the abstract:

Artur Kozak (1960-2009) was one of the most original and innovative philosophers of law to emerge from the so-called ‘middle generation’ of Polish post-War jurisprudence. Kozak’s principal achievement was to break away from the analytical paradigm of legal theory, dominant in the in Poland at the time, and engage legal theory in a fruitful dialogue with contemporary sociology and philosophy, including such currents as social constructionism or postmodernism. To name his original theoretical project, Kozak coined a new term – ‘juriscentrism’ (juryscentryzm), consciously evoking Richard Rorty’s concept of ethnocentrism. Juriscentrist legal theory was mainly focused on providing the legitimacy for the newly gained power of the legal community in a post-socialist society, but its theoretical resonance is universal. Kozak’s premature death made it impossible to complete the theoretical project of juriscentrism, nonetheless he managed to elaborate its main tenets, including the concept of juristic discretional power and a juriscentrist concept of law. Kozak’s legacy in contemporary Polish legal theory is particularly visible in Wrocław, where not only the post-analytical paradigm in Poland is the strongest, but also the first Polish school of critical legal theory has recently emerged.

Tuzet on Pragmatism & Legal Liability

Giovanni Tuzet (Bocconi University - Department of Law) has posted Liability, Pragmatism and Economics (Pravni Vjesnik, vol. 34(3-4), 2018, pp. 203-217) on SSRN.  Here is the abstract:

The article considers the concept of legal liability and shows how pragmatist legal thinkers (1) reshaped it in the light of their philosophical externalism and (2) developed an economic analysis of it that is certainly stimulating but raises some serious concerns. The main characters of this story are Oliver Holmes for the classical pragmatist reshaping of the concept, and Learned Hand and Richard Posner for the more recent economic analysis of it. The paper suggests that, despite those concerns, that pragmatist reshaping was, and still is, welcome.

Zimmerman on Mass Adjudication in Courts and Administrative Agencies

Adam S. Zimmerman (Loyola Law School Los Angeles) has posted Surges and Delays in Mass Adjudication (Georgia Law Review, Vol. 53, No. 1335, 2019) on SSRN.  Here is the abstract:

Federal courts and agencies have both transformed themselves in response to new surges of claims in mass adjudication. But each system has done so in different ways. Courts frequently devise new case management techniques to appoint magistrate judges and organize private lawyers, facilitate the exchange of information, and collectively resolve disputes. By contrast, federal agencies often rely on centralized programs — using new rules, guidance, staffing, and most recently, artificial intelligence to address unpredictable surges and chronic delays.

But new experiments in agencies and courts suggest they do not have to pursue one approach at the expense of the other. To that end, some administrative judges have embraced novel case handling techniques, employing special masters and aggregate procedures. Courts have also used policy guidance and data analysis. These experiments suggest courts and agencies can learn and borrow from each other’s experiences.

How much each does so raises larger questions about adjudicative power. As federal courts have embraced informal case handling, they also have acquired more power to respond to new problems. By contrast, centralized plans often subordinate administrative judges to others in the policymaking wings of agencies and the halls of Congress. These trends may reflect differences between independent Article III courts and administrative judges who are reviewed by officers responsible for formulating policy. But combining approaches actually may strengthen how agencies make policy and the judiciary’s adherence to the rule of law — allowing agencies to flexibly adapt to new problems, while offering courts opportunities to adopt coherent and informed strategies in mass adjudication.

Murphy on Thomistic Natural Law Theory

Tim Murphy (Universidad Carlos III de Madrid) has posted Natural Law and Natural Justice: A Thomistic Perspective (Research Handbook on Natural Law Theory (Crowe and Lee (eds.), Edward Elgar, 2019), 304–325) on SSRN.  Here is the abstract:

This chapter offers Thomistic accounts of natural law and natural justice that differ in important respects from other accounts often associated with Aquinas. The discussion begins by considering Aristotle’s taxonomy of justice in the Nicomachean Ethics and adopted by Aquinas in the Summa Theologiae. This view of justice does not emphasise rules or norms laid down by some higher source, as contemporary natural law accounts often do; rather it emphasises what Aristotle calls particular justice: the personal virtue through which individuals are disposed to respect the legitimate claims - that is, the entitlements - of others. This conception of justice differs significantly from the general or social justice that is emphasized in contemporary political philosophy and jurisprudence. According to the interpretation advanced in this chapter, natural justice is what is owed naturally to members of the community - it provides a pre-conventional yardstick for social dealings, independently of formal legal codes or institutions - and Thomistic natural law is primarily an ethical phenomenon that has been consistently misconstrued in voluntarist and positivist accounts of what natural law entails. Instead of the idea that natural law represents some kind of juridical standard, the author insists that Aquinas’s theory of natural law concerns the intrinsic ethical demand on individuals to act reasonably and responsibly.

Priel on Formalism

Dan Priel (York University - Osgoode Hall Law School) has posted Two Forms of Formalism (Published in Form and Substance in the Law of Obligations 165 (James Goudkamp & Andrew Robertson eds., 2019)) on SSRN.  Here is the abstract:

In this paper I argue that what is called ‘formalism’ is actually two very different views: I call one ‘conceptualism’ and the other ‘doctrinalism’. The former is deductive and ‘philosophical’ whereas the latter is inductive and ‘pragmatic’. While the two views have sometimes been aligned in opposition to certain views they were both in opposition to, they are actually fundamentally at odds with each other. I demonstrate this by identifying eight parameters on which the two are opposed. After presenting the two views, I turn to evaluating the two views. I first argue that conceptualism is indefensible, and that though it enjoys a degree of academic popularity, it has no real existence in legal practice. My conclusion with respect to doctrinalism is different. I argue that it is a viable approach to legal analysis and an attractive one in certain political environments. As part of my evaluation, I compare doctrinalism with legal realism (of Karl Llewellyn’s stripe), and argue that, contrary to popular belief, the two are close to each other, differing mostly in the extent to which the legal system should be open to the influence of popular values. The choice between such views, I conclude, depends more on a given community’s political culture than is a matter to be decided by jurisprudential or linguistic analysis.

The word "formalism" is used differently in different legal cultures and by different legal theorists, but Priel's essay is very valuable, even for those who use the word "formalism" for different purposes.  Recommended.

 

Teitelbaum on Computational Complexity and Tort Deterrence

Joshua C. Teitelbaum (Georgetown University Law Center) has posted Computational Complexity and Tort Deterrence on SSRN.  Here is the abstract:

Standard economic models of tort deterrence assume that a tortfeasor's precaution set is convex—usually the non-negative real numbers, interpreted as the set of feasible levels of spending on safety. In reality, however, the precaution set is often discrete. A good example is the problem of complex product design (e.g., the Boeing 737 MAX airplane), where the problem is less about how much one spends on safety and more about which combination of safety measures one selects from a large but discrete set of alternatives. I show that in cases where the precaution set is discrete, the problem faced by a tortfeasor under strict liability and negligence is computationally intractable, frustrating their static deterrence effects. I then argue that negligence has a dynamic advantage over strict liability in that negligence can move a tortfeasor's behavior in the direction of socially optimal care over time more rapidly than strict liability.

Highly recommended.

Galanm on Legitimacy in International Law and the Investment Regime

Alexis Galanm (Goethe University Frankfurt - Cluster of Excellence Normative Orders) has posted The Search for Legitimacy in International Law: The Case of the Investment Regime (Fordham International Law Journal, Vol. 43, No. 1, 2019) on SSRN.  Here is the abstract:

This Article seeks to provide a dynamic understanding of legitimacy within international law, with a particular focus on the investment regime. Starting from the observation that, despite the various disagreements about the state of the investment regime, there is an almost absolute agreement about the importance of legitimacy for the investment regime’s stability. The Article, first discusses the variety of procedural, substantive, and institutional considerations with regard to legitimacy. One obtains an extensive list of co-existing elements comprising legitimacy, often in tension and sometimes in outright contradiction with each other. This Article argued that the apparent openness of legitimacy is inherent to the concept. More specifically, drawing on the distinction between thin and thick concepts, as developed in philosophy of ethics, that legitimacy is a thin concept, that is, a purely evaluative concept detached from any particular substance. As a consequence, any attempt to circumscribe legitimacy will irremediably fail.

In light of this, this Article proposes an alternative understanding of legitimacy, which acknowledges its thinness and avoids some of the problems built into other accounts. Legitimacy is understood as justificatory force, used to pursue certain courses actions. The advantage of this account is threefold: it is not attached to any particular substance, it is dynamic, and it does not assume the existence of stability. Based on this thought, this Article argues that international lawyers should embrace the open-ended nature of legitimacy, which entails the acceptance of conflicting views and the ever transformational nature of the international legal order.

Tassopoulos on Claims of Justice and Claims for Justice

Ioannis Tassopoulos (National and Kapodistrian University of Athens) has posted Hobbesian Impartiality in Constitutional Law: Claims of Justice and Claims for Justice (Ethical Thought 2018, vol. 18, no. 2, pp. 5–21) on SSRN.  Here is the abstract:

Starting from Hobbes’s silver rule of impartiality “quod tibi fiery non vis, alteri ne feceris” the paper discusses the constitutional tensions between claims of justice, which ground their impartiality on the equality between men, regarding their dependence on basic needs; and claims for justice, which are also made in the name of impartiality, but are grounded on liberty and responsibility, resulting out of the common capability of men to pursue their interest as rational planners. Their difference, in terms of impartiality, is that the former present redistribution, for purposes of guaranteeing equal opportunities for all, as a matter of procedural impartiality, while the latter take distribution to be a matter of personal responsibility, falling primarily within the ambit of proportional equality and distributive justice. The paper discusses the corresponding constitutional forms and sociopolitical implications, depending on the prevailing conception of impartiality. Each notion of impartiality has its proper power structure, for the realization of the respective constitutional ends: the focus of the former is on legislation providing for social rights; the focus of the latter is on individual rights and judicial review. But the interplay between claims of justice and claims for justice cannot be settled once and forever. Constitutional democracy, to overcome their friction and tension without undermining political liberalism, has to disprove Hobbes’s pessimism on rhetoric and public deliberation; for this to happen, however, it is necessary to recognize that impartiality is more than a matter of prudence; rather it is a virtue associated with civility.

Pettys on Hypocrisy & Judging

Todd E. Pettys (University of Iowa - College of Law) has posted Judging Hypocrisy on SSRN.  Here is the abstract:

Editorialists, political leaders, scholars, and others sometimes accuse the U.S. Supreme Court’s members of hypocrisy, especially when they believe that divisions among the Justices are the product of partisan loyalties rather than good-faith differences in impartial legal judgment. Due to these hypocrisy charges’ delegitimizing potential, they pose a serious threat to the Court’s legal and moral authority. In legal circles and elsewhere, however, one finds a remarkable lack of clarity about what hypocrisy is, the forms it can take, and the moral precepts that define its boundaries. As a result, participants in public discourse about the Court can easily find themselves talking past one another. To be assured that the Justices are not hypocrites with respect to their commitment to impartiality, for example, is it sufficient to be persuaded that the Justices are not trying to deceive us when they say they do not regard themselves as mere politicians in robes, or is more required?

In this Article, I first offer a conceptual framework for thinking about hypocrisy of all sorts. I argue that hypocrisy appears in three principal forms—Faking Hypocrisy, Concealing Hypocrisy, and Gerrymandering Hypocrisy—and I identify the anti-equality thread that runs through all of them. I then show how this three-part framework can deepen our thinking about the work of the Court. With respect to the Justices’ pledge to be impartial, for example, I argue that there are circumstances in which (as many commonly assume) the Justices can be guilty of hypocrisy only if they are schemers bent on duping the American public into believing they are unbiased. In other circumstances, however, the Justices can be guilty of hypocrisy even if they sincerely believe they are doing what the law requires.

Pfander & Wentzel on Ex parte Young & Equitable Originalism

James E. Pfander (Northwestern University School of Law) & Jacob Wentzel (Northwestern University - Pritzker School of Law) have posted The Common Law Origins of Ex parte Young (Stanford Law Review, Forthcoming) on SSRN.  Here is the abstract:

Few doubt the significance of Ex parte Young as a cornerstone of modern constitutional litigation. But important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, the primary mode by which individuals test the constitutionality of government action. Deploying a historically-inflected methodology that we call equitable originalism, scholars and jurists have sought to define federal equity power by reference to the forms of equitable intervention that were common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such investigations have led scholars and jurists to question the power of federal courts to grant affirmative Ex parte Young relief and to issue what have come to be known as national or universal injunctions.

This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters was driven by the primacy and perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for the judicial oversight of the eighteenth century administrative state. Over time, however, courts in the United States came to view the common law writs as imperfect modes of oversight. Displaying its customary flexibility, equity adapted. Ex parte Young confirms a nineteenth century transition away from the common law writs and toward the equitable injunction as the primary mode of judicial control of administrative action. Equitable originalism could rule out such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.

Highly recommended.

Engstrom on Lone Pine Orders & Mass-Tort Litigation

Nora Freeman Engstrom (Stanford Law School) has posted The Lessons of Lone Pine (Yale Law Journal, Vol. 129, 2019) on SSRN.  Here is the abstract:

Over the past three decades, Lone Pine orders have become a fixture of the mass- tort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with prima facie injury, exposure, and causation evidence by a date certain — or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it’s not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device.

But that’s just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen — and, in places, complicate — our understanding of these profoundly influential phenomena.

Highly recommended.

Mannix & Dooling on Codifying Cost-Benefit Analysis

Brian Mannix (George Washington University) & Bridget C.E. Dooling (GW Regulatory Studies Center) have posted Codifying the Cost-Benefit State on SSRN.  Here is the abstract:

Almost fifty years of presidential direction and agency practice, combined with ten years of increasing encouragement from the Supreme Court, suggest that the cost-benefit state has not only arrived, but is well past its introductory season. Benefit-cost balancing is now a dominant paradigm in administrative law for evaluating federal agencies’ exercise of delegated regulatory discretion. In response to increased scrutiny upon judicial review, agencies have taken steps to firm up their benefit-cost analyses. Still, despite multiple Executive Orders and supplementary guidance, neither executive nor legislative action has produced a clear set of justiciable standards against which courts can evaluate agency analyses for adequacy.

Some agencies have recently initiated rulemakings to codify their own analytical procedures under particular laws. While this statute-by-statute interpretive approach may be useful, it is unlikely to provide consistency across government or broadly-applicable tools for courts to use in varying regulatory domains. The time might be right to develop judicially-enforceable, government-wide standards for the use of benefit-cost analysis in rulemaking.

Others have examined theories of judicial authority to require and to review agency benefit-cost balancing in rulemaking. In this article we focus instead on the executive’s authority to write a cross-government “rule-on-rules” to govern regulatory analysis, including benefit-cost analysis and the courts’ authority to enforce such a rule. While such a rule would probably lack direct statutory authorization under current law, we offer the example of the Council on Environmental Quality (CEQ) regulations, which govern agencies’ use of Environmental Impact Statements, to illustrate how the absence of express statutory authority is not necessarily fatal to the project, particularly when it promises to produce tools that judges will find useful in carrying out their Article III responsibilities.

In Section I, we review the rise of the cost-benefit state as a result of its development in the executive branch and its treatment by the courts. In Section II, we examine theories of judicial authority to require benefit-cost analysis (BCA). Section III describes a nascent efforts by one agency to codify its own use of BCA, presents the question of whether a broader, cross-cutting “rule-on-rules” that lacks clear statutory authority would be judicially enforceable, and describes the CEQ analog as a potential precedent. In Section IV, we review the constitutional authorities that might support a cross-cutting BCA rule, and present two theories to support judicial enforcement of such a rule.

Recommended.

Naughton on the FLSA & Home Health Care

James Naughton (Loyola University Chicago School of Law) has posted The Home Health Crisis: (Un-) intended Consequences of the Application to Fair Labor Standards Act to Domestic Service on SSRN.  Here is the abstract:

This note addresses three of the unintended consequences of the State of Illinois’s application of the Fair Labor Standards Act (FLSA) to Domestic Service for Individuals with Disabilities. These individuals often have major medical needs and Illinois’s application of the FLSA to health care services threatens the health and well-being of people with disabilities. This note will discuss how the implementation of new overtime rules based on the FLSA will (1) violate the Illinois Administrative Procedures Act; (2) violate Title II of the Americans with Disabilities Act and the United States Supreme Court’s holding in Olmstead; and (3) will explore the ways other States have implemented the FLSA overtime requirements without putting their resident’s health at risk.

Todres & Fink on Family Separation & Children's Rights

Jonathan Todres (Georgia State University College of Law) & Daniela Villamizar Fink (Sonoda Law Firm) have posted The Trauma of Trump's Family Separation and Child Detention Actions: A Children's Rights Perspective (Washington Law Review, Vol. 95, No. 1, 2020) on SSRN.  Here is the abstract:

In April 2018, the Trump Administration publicly announced a new zero-tolerance policy for illegal entries at the U.S. border. This action kicked off a wave of family separations that made headlines and drew criticism from around the globe. Despite resounding condemnation of these actions, the Trump Administration defended its family separation policy as a “tough deterrent.” At least 2,600 families were torn apart in the ensuing months. And as of 2019, reports—from both government and others—have detailed widespread abuses of and substandard conditions for children held in detention centers. The consequences of these separations and the maltreatment of children in detention are pronounced. The trauma that children have endured has potentially lifelong ramifications. This Article provides an in-depth, children’s rights-based analysis of the Trump Administration’s family separation and child detention policies and actions. A children’s rights perspective has several critical insights. First, children’s rights are rooted in a legal mandate. Second, examining the Trump Administration’s actions from a children’s rights perspective reveals the breadth of rights violations occurring. This more nuanced understanding of the events can help in devising appropriate strategies to respond to such violations. Third, a children’s rights perspective helps place the Trump Administration’s actions in their historical context to better understand the gravity of these actions. Children’s rights law is as close to universally accepted as any human rights law, and thus any departures from such widely embraced standards are particularly revealing. Finally, the authors discuss the implications of this children’s rights assessment, urging action on several fronts to address this harm and prevent violations of children’s rights in the future.

Fletcher on Cheeky Witnessing

Ruth Fletcher (Queen Mary, University of London) has posted Cheeky Witnessing (Feminist Review, Forthcoming) on SSRN.  Here is the abstract:

Feminists witness legal worlds as they observe, document, and share nothing less than the reproduction of life itself. The world of the abortion trail, where people and things move across borders to change life’s reproduction, has generated a rich plurality of feminist witnessing. In observing how feminist activists improvise with sources, figures and objects of legal consciousness on the abortion trail, this paper seeks to contribute to critical understanding of that plurality, particularly as it emerges in diaspora space. Focusing on Murphy’s concept of immodest witnessing, with its attention to bodies, protocols and apparatuses as constituents of knowledge, the paper thinks with the diasporic feminist activist performance group, Speaking of I.M.E.L.D.A., about how they used self-examination, collective collaboration, and knowledge-sharing on the trail to repeal of Ireland’s Eighth Amendment. The paper argues that their improvisation with legal consciousness of reproductive choice enacts ‘cheeky witnessing’. Cheeky witnessing has three dynamics as a method of observation. First, it is messy and irreverent in innovating with names to display the mixed genealogies of sources of feminist knowledge. Second, cheeky witnessing generates novel subject-figures, such as migrant cleaners, who make knowing connections between different reproductive labourers as observers of the trail in diaspora space. Third, cheeky witnessing places funny objects, knickers in this instance, so as to join up particular public locations and make them more, if unevenly, comfortable for sexual and reproductive bodies. Cheeky witnessing show us how committed and partial practices play a role in speaking across interests and experiences, in stretching the legal imagination, and in sustaining the everyday grind of making a better world.

Swan on Discriminatory Dualism

Sarah Lynnda Swan (Florida State University - College of Law) has posted Discriminatory Dualism (Georgia Law Review, Forthcoming) on SSRN.  Here is the abstract:

This Article identifies and theorizes a significant but previously overlooked feature of structural discrimination: it frequently develops into two seemingly opposing, yet in fact mutually supportive practices. This phenomenon, which this Article terms “discriminatory dualism,” occurs in multiple contexts and domains, including policing, housing, and employment. In policing, communities of color experience overpolicing (the aggressive overenforcement of minor crime) at the same time as they experience underpolicing (the persistent failure to address violent crime). In housing, redlining (the denial of credit to aspiring homeowners based on race) combines with its opposite, reverse redlining (the over-offering of credit on exploitative terms) to suppress minority homeownership. And, in employment, sexual harassment (unwanted sexual attention) combines with shunning (the refusal to engage with women workers at all) to deny equal opportunity in the workplace.

While scholars working in these discrete fields have noted each of these individual paradoxes, this Article argues that these paradoxes are in fact fundamentally connected. They are iterations of the same broader phenomenon. This recognition generates three important insights: first, understanding discriminatory dualism as a common technology of oppression signals the possibility that it is also occurring in additional contexts, and allows future flips and switches to be better anticipated. Second, it diagnoses why previous reform mechanisms have failed. Third, this frame surfaces the distinct harms caused by discriminatory dualism. Specifically, because each paradox is made up of two co-existing, contradictory strands which simultaneously deny and support each other’s existence, discriminatory dualism creates profoundly destabilizing systems that thwart and confound conceptualization and countermobilization efforts. The conceptualization challenges have created hermeneutical injustices. And the countermobilization challenges have made discriminatory dualism difficult to constrain and combat. Nevertheless, understanding the dynamic and systemic processes of discriminatory dualism offers tools to begin the necessary work of dismantling it.

Very interesting and recommended.

Carbado & Crenshaw on Intersectionality & Equal Protection

Devon W. Carbado (University of California, Los Angeles (UCLA) - School of Law) & Kimberle Crenshaw (Columbia Law School) have posted An Intersectional Critique of Tiers of Scrutiny: Beyond 'Either/Or' Approaches to Equal Protection (129 The Yale Law Journal Forum 108 (2019)) on SSRN.  Here is the abstract:

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a university’s affirmative-action plan that specifically targets Black women, the Essay considers what tier of scrutiny should apply. Because, for the most part, scholars take a race or gender approach to equal-protection law, they have not engaged that doctrinal puzzle and its implications for tiers-of-scrutiny writ large.

Highly recommended.  Download it while it's hot!