Legal Theory Blog

Waldron on Judicial Review

Jeremy Waldron (New York University School of Law) has posted The Crisis of Judicial Review on SSRN. Here is the abstract:

How much power should the judiciary have in a modern democratic society? Should judges have the authority to strike down legislation? This has long been a subject of controversy in constitutional politics. In the last year or two, the controversy has become acrimonious. In the United States, the overturning of the precedent set in 1973 by the abortion decision of Roe v. Wade has disillusioned many liberals and has led a number of commentators on the left to question the legitimacy of the Supreme Court, at least as currently constituted. In Israel in recent weeks, proposals by the Netanyahu coalition to set up new mechanisms of judicial appointment, and severely curb the power of the Israeli Supreme Court to second-guess policy choices and overturn legislation, has ignited fierce and widespread opposition. Many who in principle oppose judicial review of legislation have been asked whether they would like to rethink their position or limit its application in light of these developments. Professor Waldron is known as an opponent of judicial review, and he will take the opportunity afforded by this lecture to address questions about the legitimacy of Supreme Court decision-making and about what many see as the continued necessity for a judicial veto in a system of checks and balances and the democratic separation of powers.

Highly recommended.

Lee on the Copyright Office AI Guidance

Edward Lee (Chicago-Kent College of Law - Illinois Institute of Technology) has posted The Code Red for Copyright Law (Florida Law Review, Vol. 76, 2024 Forum (Forthcoming)) on SSRN. Here is the abstract:

On March 16, 2023, the U.S. Copyright Office issued a new Guidance on Works Containing Material Generated by Artificial Intelligence (“AI Guidance”) that went into immediate effect. This Essay explains why the Office’s AI Guidance is fundamentally flawed on both procedural and substantive grounds. First, because the AI Guidance contains new substantive rules on the copyrightability of the entire class of AI-generated works, requiring applicants to disclose and to disclaim all AI-generated works from registration, the Copyright Office’s failure to hold a period of notice and comment before issuing the new AI Guidance likely violated the Administrative Procedure Act. More fundamentally, the Copyright Office’s newfound requirement of the so-called “traditional elements of authorship”—a term that no federal court has ever recognized in the history of copyright law—finds no support in the Constitution, the Copyright Act, or the Supreme Court’s precedents. Not only is such a rigid approach limiting copyright to “traditional” authorship contrary to the text of the Progress Clause and the Framers’ rejection of restricting “Authors” to “literary Authors,” it also threatens to disadvantage U.S. creators the most, at a time when other countries are vying to upend the United States as the world leader in AI development. The federal courts should give no deference to and ultimately reject the Copyright Office's erroneous rule of "traditional elements of authorship." The Office's mistaken approach is contrary to the Progress Clause and the Supreme Court's precedents on "Authors," which includes authorship that lies in a minimally creative selection or arrangement of elements. The Copyright Office has no authority to ratchet up this constitutional standard.

Highly recommended. Download it while it's hot!

Eyer on Textualism and Progressives

Katie R. Eyer (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Textualism and Progressive Social Movements (University of Chicago Law Review Online) on SSRN. Here is the abstract:

Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments. The conclusion that textualist legal arguments ought to be embraced by progressive social movement lawyers has important implications for progressive legal academics. As teachers and scholars, progressive legal academics can play an important role in facilitating—or undermining—the efficacy of progressive textualist arguments in the courts. As such, even for those progressives who may not view textualism as a valuable normative project, there may be utility to engaging seriously with textualism as teachers and scholars.

Highly recommended.

Lang on Judicial Passivism and EU Migration/Asylum Law

Iris Goldner Lang (University of Zagreb - Faculty of Law) has posted ‘Judicial Passivism’ in EU Migration and Asylum Law Revisited (Revisiting Judicial Politics in the European Union (eds. Dawson, De Witte and Muir), Edward Elgar, 2024) on SSRN. Here is the abstract:

This paper defines judicial passivism as a subcategory of judicial activism applicable to cases where the Court of Justice of the European Union is consciously not using its powers where it could, due to the political and social sensitivity of the case, often combined with the ambiguity of the legal text. It is argued that the Court’s passivism is often the result of its reluctance to oppose Member States’ consensual will in politically sensitive and legally disputable migration matters. The paper juxtaposes the Court’s abstention in its earlier, politically sensitive migration cases with its strong upholding of migrants’ and asylum seekers’ rights in its recent migration-related judgements against Hungary. It is argued that the shift in the Court’s decision-making should not be viewed as a wind of change, but as the Court’s attempt to correct national rule of law-incompliant behaviour, while knowing that its condemnation of Hungary would find support among most other Member States.

Joyce on the Major Questions Doctrine

Samuel Joyce has posted Testing the Major Questions Doctrine (43 Stan. Env't L.J. 45 (2024)) on SSRN. Here is the abstract:

The Supreme Court’s recent decision in West Virginia v. EPA announced the arrival of the major questions doctrine, a substantive canon of construction that bars agencies from resolving questions of “vast economic and political significance” without clear statutory authorization. While the contours of the doctrine are still murky, early predictions suggest it will function to substantially curtail the scope of the administrative state. Despite these significant implications, the Court has not been clear about the doctrine’s origins or purpose. Some defenses of the doctrine have sought to justify it as an intuition about how Congress writes statutes, a kind of linguistic canon; others, including Justice Gorsuch, attempt to root the doctrine in the Constitution, grounding it in the nondelegation doctrine.

The distinction matters because constitutionally inspired doctrines have more bite than linguistic canons. If the major questions doctrine is truly just another linguistic canon, it may fit within the Court’s ordinary process of statutory interpretation and yield to other canons in any case; as a constitutional doctrine, by contrast, it allows the Court to deviate from the text and adopt narrower readings of otherwise unambiguous statutes. This Note considers and tests the major questions doctrine’s link to the nondelegation doctrine, arguing that the major questions doctrine does not consistently serve to advance nondelegation.

The argument proceeds in three steps. First, this Note contends that the major questions doctrine must apply to the President, addressing a recent circuit split on that issue. Second, this Note explains why the major questions doctrine may function to bar the elimination of national monuments, taking as a case study President Trump’s elimination of the Bears Ears National Monument in Utah. Notably, given the history of the statute and the textual authorization to create monuments, the major questions doctrine is far more likely to bar the elimination of a national monument than the creation of one. Finally, this Note turns to nondelegation, which is more likely to be used to challenge the creation of monuments. The nondelegation doctrine does not examine “majorness” or demand clear statutory authorization; as a result, its application bears little resemblance to the major questions inquiry, likely functioning to bar the creation as opposed to the elimination of monuments.

This case study shows that the major questions doctrine and nondelegation doctrine may, as applied to the same statute, produce opposing outcomes. If the major questions doctrine functions to advance the nondelegation doctrine, this disparity should give its defenders pause. Whatever the doctrine’s merits as a linguistic canon, a doctrine so untethered from the constitutional values that ostensibly grant it its legitimacy has little merit as a substantive canon.

Barth on the Ministerial Exception and Religious Higher Education

Whittney Barth (Emory University - Center for the Study of Law and Religion) has posted Minimal (In)Fidelity: The Ministerial Exception in Religious Higher Education (Forthcoming: ABA Journal of Labor and Employment Law) on SSRN. Here is the abstract:

In 2022, the U.S. Supreme Court denied certiorari in a discrimination case brought by a social work professor against her Christian college employer, leaving in place a Massachusetts Supreme Judicial Court ruling declining to find the professor’s claims were barred by the ministerial exception. It would have been the first ministerial exception case to involve a religiously-affiliated higher education institution. At least four justices on the U.S. Supreme Court signaled they would be willing to grant religious employers greater deference when deciding who is a minister for the purposes of the ministerial exception. By considering the unique role of higher education and the cases have come before and after the Supreme Court’s rulings in Hosanna-Tabor and Our Lady of Guadalupe, this Article argues greater deference to employers would have a substantial impact on the outcome of these cases, raising anew questions about the balancing religious liberties and the compelling interests protected by antidiscrimination law.

Emerson on the Existential Challenge to the Administrative State

Blake Emerson (UCLA School of Law; Yale University - Law School) has posted The Existential Challenge to the Administrative State (Georgetown Law Journal, Vol. 113, Forthcoming) on SSRN. Here is the abstract:

A set of constitutional claims today strikes at the heart of the administrative authority of the federal government. Claims regarding administrative policymaking, interpretation, adjudication, and official removal variously reject agencies’ legal powers or their insulation from the President. These claims together pose an existential challenge to the administrative state. If they were all successful, agencies would cease to exercise independent, legally binding powers.

This Article diagnoses and responds to this existential challenge. It shows how the discrete claims that comprise the challenge are each grounded in a legal theory that treats the administrative state as antithetical to constitutional structures and values. This existential challenge is not merely a creature of conservative constitutional politics, however. It is also facilitated by a judicial self-conception, transcending political ideology, that readily entertains and obliquely supports the categorical rejection of administrative authority.

Insofar as the existential challenge threatens the very survival of the administrative state, it presents the opportunity to consider why this state matters. The state under threat serves democratic-constitutional values, such as the protection of the body politic against harm, the preservation of value pluralism, and the impartial application of law. While the ad-ministrative state does not always live up to these commitments, it gives our polity at least the capacity to realize them. If the existential challenge succeeds, the people will lose core facilities of democratic law.

The Article therefore proposes some legal reforms that would respond to the existential challenge while remedying some deficiencies of administrative law’s current rule structure. These include statutory rejection of the major questions doctrine, explicit statutory recognition of public rights to health, safety, and equality, curbing pre-enforcement judicial review, appointment of administrative officials by a special Article III court rather than the president or department heads, and a distributed rather than unitary approach to executive-branch management.

Highly recommended.  Download it while it's hot!

Abu El-Haj on Assembly as Political Practice

Tabatha Abu El-Haj (Drexel University Thomas R. Kline School of Law; Thomas R. Kline School of Law, Drexel University) has posted Assembly As Political Practice (The Oxford Handbook of Peaceful Assembly (Tabatha Abu El-Haj, Michael Hamilton, Thomas Probert & Sharath Srinivasan, eds.)) on SSRN. Here is the abstract:

The right of peaceful assembly is often touted as preserving the promise of fundamental political or social change. It ensures the people’s power to secure the franchise or social inclusion and to overthrow oppressive regimes, whether colonial, apartheid, or dictatorial. But assemblies come in a range of other forms, including annual parades, smaller political protests, and weekly gatherings of social groups. All these forms of assembly sustain and reinforce the capacity for democratic politics, and their value does not turn on their expressive ends alone. Both the possibility of effective democratic politics, and a proper construction of the right of peaceful assembly, demand that we recognize the value of assembly, as assembly, and its latent and constitutive political functions. This chapter thus explores assembly as a form of social and political action, demonstrating that the act of assembly has independent, intrinsic value, apart from and often prior to, either its expressive or instrumental political functions.

Highly recommended. Download it while it's hot!

Tsai on Affirmative Action

Robert L. Tsai (Boston University - School of Law) has posted Roads Not Taken on Affirmative Action (Seton Hall Law Review, Vol. 54, 2024) on SSRN. Here is the abstract:

The law of affirmative action is a mess. In the short-term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many contingencies we cannot foresee. To regain a sense of the possible, this symposium essay looks to the future of equality jurisprudence by looking backward. I recover three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right to higher education. Third, they could have showed consistent respect for universities and colleges as distinctive communities by embracing their collective right to self-expression. Instead of taking any of these roads, the Supreme Court has used the equal protection clause to protect something of uncertain social worth and deepened suspicion of educational institutions. Ultimately, how long we remain in the current quandary—aggressive judicial supervision of university admissions and an impoverished conception of higher education as a social good—will depend on whether judges tire of the status quo and the rest of us perceive the real stakes and demand something better.

Highly recommended.

Sandefur on Originalism

Timothy Sandefur (Goldwater Institute) has posted Originalism and the Illusions of Objectivity (forthcoming, Charleston Law Review vol. 19 (2024)) on SSRN. Here is the abstract:

This article examines Originalism's entitlement to the status of an objective theory of law. It considers first what objectivity means in a legal context, then examines the two main claims of Originalism (semantic and normative). After seeing why neither of these satisfies the test of objectivity, it considers recent efforts by Originalist scholars to satisfy the objectivity test—efforts that reveal that their successes come about only at the cost of jettisoning Originalism's basic reliance on origin—a move called "stone soup"—which results in a theory that has no plausible claim to the title "Originalism."

For a very different understanding of what originalism is and how constitutional communication works, see Original Public Meaning, which was just published a day or two ago.

Delmotte on Death Tax and Wealth Tax

Charles Delmotte (Michigan State University College of Law; NYU School of Law) has posted Beyond the Wealth Tax (Alabama Law Review, Vol. 76 (Forthcoming)) on SSRN. Here is the abstract:

The increased emphasis on economic equality has led to a consensus on the desirability of a federal wealth tax. Prominent tax scholars and economists advocate imposing a 1% or 2% levy on households with assets exceeding a net worth of $50 million. A wealth tax attempts to tax capital owners on the market value of their assets and businesses in the absence of transactions that determine such value. The proposal thus rests upon a dominant underlying assumption: that determining the market value of assets worth trillions of dollars is a surmountable and administrable task. Yet in reality, wealth taxes fail to satisfy the goals of tax policy, namely administrability, efficiency, and equity.

While the incorporation of distributive considerations into tax law is commendable, the existing literature lacks a comprehensive theory on wealth creation and the valuation of assets. This Article introduces a new theory—the market as a discovery process—to fill this gap. The wealth creation process takes place against the backdrop of a knowledge problem, and the outcomes of capital investments and specific business ventures are often highly unpredictable. This theory shows that the market value of many assets and business ventures is discoverable through transactions. In the absence of such a realization event, both public and private entities encounter this knowledge problem: authorities lack information to ascertain the market value of assets and calculate the wealth tax base. As a result of this valuation issue, wealth taxes fail the administrability criterion. Additionally, the wealth tax base is vulnerable to litigation and arbitrariness and taxing it won’t generate the desired equitable outcome. Regarding economic efficiency, taxing assets according to their general market value discourages innovative entrepreneurship related to those assets. This, in turn, limits the potential for the creation of new wealth.

While wealth taxes fail all three criteria for tax policy, a pragmatic alternative that enhances the equity of the tax system involves taxing unrealized gains at the time of death. Such a deemed realization tax is administratively more feasible as it involves a one-time levy that can build on the valuations generated during transfers at death. This measure also enables the elimination of the capital gains preference, thereby taxing labor and capital income under a unified rate schedule. These combined policies increase taxes on the wealthy while meeting the requirements of administrability and economic efficiency.

Hollis on Agreements in International Law

Duncan B. Hollis (Temple University - James E. Beasley School of Law) has posted Delimiting "Agreements" for International Law (65 Virginia Journal of International Law Online, Forthcoming) on SSRN. Here is the abstract:

Agreements are central to many international law projects, including both treaty-making and the (rising) use of non-binding agreements. Yet, for all the attention States and scholars currently direct to differentiating between binding and non-binding agreements, there has been relatively little discussion of the antecedent inquiry – what constitutes an agreement in the first place? This short essay calls for new efforts to define agreements for purposes of international law and international relations, focusing on two criteria – mutuality and commitment. Agreements require two (or more) participants just as they must exhibit some shared expectations regarding those participants’ future behavior. This definition provides important limiting principles by excluding certain binding instruments (e.g., unilateral declarations) as well as some non-binding ones (e.g., diplomatic “deliverables” that do not reflect shared commitments to future courses of conduct). Moreover, a focus on agreements foregrounds a salient category absent in most existing discourse – tacit agreements. Reflecting on why tacit agreements qualify as agreements can help highlight different methods (e.g., content-driven criteria, presumptions and defaults) to supplement (or substitute for) existing subjective and objective efforts to identify whether an agreement is binding under international law. For those concerned with the transparency of diplomatic deliverables, the efficacy of domestic approval procedures for international agreements, as well as the operation of both the law of treaties and the law of state responsibility, it will be necessary to develop a broader and deeper understanding of what agreements “are” alongside any efforts to identify and differentiate among their binding and non-binding forms.

Recommended.

Parchomovsky & Stein on Redeemable Fines

Gideon Parchomovsky (University of Pennsylvania Carey Law School) & Alex Stein (Israel Supreme Court) have posted Redeemable Fines: Overcoming the Crisis of Overincarceration on SSRN. Here is the abstract:

In this Essay, we introduce a new mechanism uniquely designed to achieve rehabilitation of offenders and improve the criminal justice system: the redeemable fine. A redeemable fine is a monetary penalty that will be returned to the offender—in installments or, in exceptional cases, in one payment—over a certain period so long as she or he commits no further crimes. Unlike traditional fines, redeemable fines can be structured in a myriad of ways to provide individually tailored optimal rehabilitative incentives for offenders. First, the installment period of the repayment can be short (several months) or long (several years), depending on the characteristics of the offense and the offender. Second, there is the frequency of the payments. The payment intervals can be long, short, intermediate or variable. The sentencing judge will be able to order that the repayments will be made annually, every six months, every single month or, in exceptional cases, in one installment on the successful completion of the rehabilitation. As with traditional fines, the redeemable fine’s amount will correlate with the seriousness of the offender’s misdeed. For these and other reasons, introduction of redeemable fines can dramatically reduce the rates and the costs of incarceration and render the criminal justice system fairer and more humane, while providing meaningful incentives for offenders not to commit further offenses.

Highly recommended.

Elcott & Adler on Art Law

Noam Elcott (Columbia University) & Amy Adler (New York University School of Law) have posted Editors’ Introduction: Art Beyond Copyright (Grey Room, no.94, Winter 2024, at 6) on SSRN. Here is the abstract:

This Introduction to our special interdisciplinary issue, “Art beyond Copyright,” sets out our call for a new approach to Art Law. Since we conceived of this project over two years ago, our position was and remains, first, that copyright law is irrelevant to the vast multitude of practicing artists and that it stands in direct opposition to art historians; and, second, that the myopic focus on copyright has blinded attention to conceptually and historically distinct facets of the law that inflect art practice, art history, and art law. The inadequacy of copyright and the imperative to seek out alternatives for art and law are the focus of this Introduction and of this special issue of Grey Room, in which we bring together leading voices in law, art history, art, and museums. In the years since we began work on this issue, two major developments have made the concerns we address here even more urgent: the Supreme Court’s Warhol decision and the widespread use of generative AI, both of which we address here. Our hope is that the interdisciplinary approach we take in this Introduction and in the accompanying issue will spur new conversations and debates in the worlds of art, law, and their myriad intersections.

Ryu & Sewell on Moral Obligations from the Legal Perspective

Angelo Ryu (University of Oxford - Saint John's College) & Trenton Sewell (University of Oxford) have posted Taking the Legal Perspective Seriously (Forthcoming, Analysis) on SSRN. Here is the abstract:

Perspectivalism is a popular way to understand legal obligations. That there is a legal obligation, on this view, is equivalent to there being a moral obligation from the legal perspective. But Adam Perry argues it cannot account for mixed arguments. These arguments go from legal premisses to a factual conclusion. Take, for instance, the premisses (i) only those over 18 have a legal right to vote, and (ii) Sarah has a legal right to vote. Seemingly, we should be able to arrive at the valid conclusion that Sarah is over 18. Perry says perspectivalism cannot explain the validity of this conclusion. We show that it can. So his objection—that perspectivalism cannot make sense of an important feature of legal argumentation—fails. Along the way, our discussion reveals an important lesson: those who endorse perspectivalism must take care to ensure that all parts of a legal argument, both premisses and conclusions, are true according to the legal perspective.

Stone on "Reciprocal Freedom" by Weinrib and Distributive Justice

Martin J. Stone (Yeshiva University - Benjamin N. Cardozo School of Law; New School for Social Research -- Philosophy) has posted The Possibility of Kantian Distributive Justice: Comment on Weinrib’s Reciprocal Freedom on SSRN. Here is the abstract:

This paper examines the possibility of grounding distributive justice, or the institutions of the welfare state, on Kant's ideas of reciprocal independence. It is a comment on Chapter V of Ernest Weinrib's book, Reciprocal Freedom, and was originally given as a talk at University of Toronto in 2023.

Recommended.

Wilson on Retributivism and Nonhumans

David W. Wilson (Bass, Berry & Sims, PLC) has posted Governing 'Things': Artificial Intelligence, Animals and Other Nonhumans Before the Law (27 Va. J.L. & Tech. 1 (2024)) on SSRN. Here is the abstract:

Humans throughout history have come to seek retribution for purported wrongs committed against them. At times, this has presented itself by means of formal systems of crime and punishment in their respective societies and cultural contexts. The impulse to seek vengeance for misdeeds committed by others is one that, I contend, is deeply and inextricably linked to the human experience. However, there is something particularly interesting about this arguably retributive tendency when it comes to beings with minimal to no capacity for reason, i.e., nonhumans and inanimate objects. My research outlines various attempts throughout history to govern nonhumans and thus subject them to the constraints of law. These attempts range from humanity’s absurd practice of putting animals and objects on trial to the modern discourse of algorithmic disgorgement.

In Part I, I will review the literature of culpability and rights theory as it relates to assigning blame to moral agents. Part II will provide a brief historical background for holding animals and inanimate objects legally accountable for their actions and consider the reasons for this impulse. Part III will discuss recent notions of personhood, culpability and rights being applied to artificial intelligence (AI); modern attempts to apply the retributivist framework to AI; and then briefly look at the various alternative methodologies for AI governance. Part IV will conclude by offering some final observations and policy considerations.

Interesting. For one aspect of these issues, see Legal Personhood for Artificial Intelligences.

Waldron on Dignity and Humans of Different Kinds

Jeremy Waldron (New York University School of Law) has posted The Dignity of a Human Lifetime on SSRN. Here is the abstract:

This paper examines the relation between human dignity as a general category and the dignity properly accorded to humans of different shapes and sizes: infants, teenagers, rational adults, the elderly, and so on. It asks what the relationship is between human dignity in general and human dignity as a basis for the specific forms of respect that humans of different kinds may command.

Highly recommended.

Solum on Original Public Meaning

Lawrence B. Solum (University of Virginia School of Law) has posted Original Public Meaning (Michigan State Law Review, Vol. 2023, No. 807, 2023) on SSRN. Here is the abstract:

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) that constitute the communicative content of the constitutional text. The second step situates original public meaning in the context of normative constitutional theory, explaining its role in both Public Meaning Originalism and nonoriginalist constitutional theories. The third and final step investigates the foundations of original public meaning in the philosophy of language and theoretical linguistics, via an exploration of the distinctions between (a) speaker’s meaning and sentence meaning, (b) semantics and pragmatics, (c) sense and reference, and (d) conceptual meaning versus prototypical meaning.

Each of the three steps contributes to the articulation of a conception of original public meaning that aims at conceptual clarity, precision, and theoretical depth. The original public meaning of the constitutional text is the communicative content (the set of concepts and propositions) that was conveyed to the public at the time each provision was drafted, proposed, and ratified. Both semantics (the meaning of words and phrases) and pragmatics (meaning conveyed by context) play essential roles in the complex multistage process by which constitutional communication occurs. For public meaning originalists, the original public meaning of the text ought to bind constitutional actors, including judges, legislators, and executive officials. Sometimes, the recovery of original public meaning is relatively easy—the absence of linguistic drift, common sense, and the immediate context make the meaning of the constitutional text readily accessible to contemporary readers. But sometimes, the original public meaning of the constitutional text is difficult to discern, requiring both a deep reading of the constitutional record and careful application of the methods of historical linguistics.

There are many new ideas in this article, which aims to present a concise and precise articulation of the idea of original public meaning.

Render on Disposal of Intentionally Useless Objects

Meredith Render (University of Alabama - School of Law) has posted Waste, Property, and Useless Things (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:

How should the law respond to intentionally useless objects that are constructed from scarce materials and thrust into an overcrowded world? Approximately 60 million tons of electronic waste, or “e-waste” –e.g., discarded iPhones, refrigerators, desktop computers—is produced each year. This annual pile of electronic rubbish represents $62 billion worth of tangible raw materials (such as gold and other scarce metals) that has been rendered useless. In addition to wasting raw materials, e-waste clogs our landfills, poisons the ground water, and taxes our capacity to store it. Worst of all, much of this waste is intentionally created by electronics manufacturers through the profit-maximizing strategy of planned obsolescence.

Planned obsolescence is a strategy by which manufacturers intentionally limit the utility of their products so that consumers are forced to discard them and buy new products. Planned obsolescence creates intentionally useless objects and imposes significant social costs. While some of the costs of planned obsolescence are felt within the manufacturer-purchaser transaction (a purchaser must consider whether a product will last long enough to justify its price), the most significant social costs of the strategy remain external to that transaction.

This Article offers three principal contributions. First, a normative thesis: more of the social cost of intentionally useless objects should be borne by the manufacturers that profit from the strategy. Second, a theoretical insight: avoiding waste is a central commitment of property law. In fact, property law is rendered more coherent when it is understood as a series of instantiations of an anti-waste imperative. Often confused with an efficiency principle, property law’s anti-waste commitment best explains doctrinal choices that otherwise would seem inconsistent. Finally, a doctrinal analysis: the anti-waste imperative (when applied to the existing rules of property) disallows the conveyance of a fee simple in an intentionally useless object. Instead, manufacturers can only convey a defeasible interest in the object, retaining a reversionary interest that serves to correct some of the negative externalities associated with the strategy of planned obsolescence.

Recommended.

Jiménez on Statutory Textualism

Felipe Jiménez (USC Gould School of Law) has posted Minimalist Textualism (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract:

Textualism is now the dominant theory of statutory interpretation in the Supreme Court. This paper explores a series of conditions that all theories of statutory interpretation, including textualism, ought to satisfy. The conditions are Nonequivalence; Limited Domain; Legality; Specificity; Normativity; and Restricted Relevance. These conditions deny claims sometimes made by textualists—such as “the text is the law” or “the ordinary meaning of the statute governs.” They also qualify some of the normative arguments textualists use to justify their views. Textualist theories should satisfy these conditions because they are warranted requirements for statutory interpretation. Compliance with these conditions leaves space for a textualist approach that preserves commitment to statutory text and the rejection of appeals to purpose and legislative intent, while avoiding some common pitfalls in textualist theory, rhetoric, and practice. This minimalist textualism is thus a better version of textualism.

Highly recommended.  Download it while it's hot!

Dothan on Courts and Social Justice

Shai Dothan (University of Copenhagen - iCourts - Centre of Excellence for International Courts) has posted Courts and Social Justice (Forthcoming in 58 Loyola of Los Angeles Law Review (2025) on SSRN. Here is the abstract:

Many scholars have argued that courts are either harmful or useless when it comes to improving social justice in society. There are three main reasons offered in support of this argument: (1) Courts are elitist institutions that support the high social class of the judges at the expense of the rest of society (2) The structure of litigation is geared towards harming the rights of people with modest economic means (3) Even when courts try to impose a higher standard of social justice, they are not able to initiate real social change. The purpose of this paper is to investigate these claims. The conclusion the paper reaches is that courts are able to initiate social change in favor of powerless social groups, primarily diffuse interests that are usually taken advantage of even in a functioning democracy. The reason has to do with social processes that take place after judgments are issued instead of with the ideology of judges.

Interesting and recommended.

Legal Theory Lexicon: Restraint and Constraint in Constitutional Theory

Introduction

The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory.  One aspect of this idea connects with the notions of "judicial activism" and "strict construction" that are discussed in a previous Legal Theory Lexicon entry.  Another aspect of this discourse concerns the ideas of judicial restraint and constraint.

One of the difficulties with discussion of restraint and constraint is that these ideas have been imprecise and ambiguous.  Is restraint simply inaction?  Or does constraint have to do with the idea that courts should be bound by the constitution?  These two notions are not the same.  The constitution might require action that interferes with the political branches, but it might require inaction as well.

Thomas Colby has made a metalinguistic proposal to sort out the potential confusion.  Here is the way he put the suggestion:

(“[A]lthough originalism in its New incarnation no longer emphasizes judicial restraint--in the sense of deference to legislative majorities--it continues to a substantial degree to emphasize judicial constraint--in the sense of promising to narrow the discretion of judges. New Originalists believe that the courts should sometimes be quite active in preserving (or restoring) the original constitutional meaning, but they do not believe that the courts are unconstrained in that activism. They are constrained by their obligation to remain faithful to the original meaning.”).

Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).  Colby's idea is that we can stipulate that "restraint" refers to deference and that "constraint" refers to the a requirement of consistency with the constitutional text.

The remainder of this Lexicon entry develops Colby's metalinguistic proposal.

The Restraint-Constraint Distinction

Let's begin with stipulated definitions of "restraint" and "constraint."  We can stipulate as follows:

Restraint: A judicial decision is stipulated to be “restrained” if and only if the decision defers to decisions made by executive officials or statutes enacted by a legislative body.  Example: Refusing to strike down a statute would be an instance of restraint.

Constraint: Constitutional practice (by judges or other officials) is stipulated to be “constrained” if and only if the actions taken by officials are consistent with the communicative content of the constitutional text.  Example: Striking down a statute because it violates the original meaning of the First Amendment would be an instance of constraint.

Notice that only judicial decisions can be restrained in the stipulated sense, but that the actions of any official can be constrained by a requirement of consistency with the communicative content of the constitutional text. We can represent the possible interactions between constraint and restraint via the following table:

 

The stipulated version of the restraint-constraint distinction allows us to disentangle some of the confusions in discourse about the proper role of the courts.  Critics of the Warren Court were especially concerned about cases that they saw as properly classified in the lower-right quadrant of the two-by-two matrix.  For example, some critics of the Warren Court may have believed that the Court's privacy decisions (e.g., Griswold v. Connecticut) were cases in which the had acted in a way that was both unrestrained (interfering with an action by the state legislature) and unconstrained (not based on the constitutional text).  But what about actions that fall in the lower left quadrant--cases in which the Court upholds legislation but in a way that is inconsistent with constitutional text?  For example, some constitutional lawyers believe that many of the New Deal cases should be classified as restrained but unconstrained.  The decision in Wickard v. Filburn might be an example: the Court deferred to Congress but acted in a way that is inconsistent with the constitutional text--by assumption for the purposes of the example.  On such cases, critics of the Court may split, with some agreeing that  these New Deal cases are praiseworthy because they illustrate judicial restraint, but others complaining that these decisions are contrary to the text and hence unconstrained.

Connection with Judicial Activism

The  restraint-constraint distinction enables us to understand why "judicial activism" became an ambiguous concept.  "Activism" became a contrast word for both restraint and constraint and sometimes for just a lack of restraint or just a lack of constraint.  When applied to cases in the lower right quadrant of the matrix (unrestrained and unconstrained), everyone could agree that the label "judicial activism" properly applies, but when the case fell into either the upper right quadrant (unrestrained but constrained) or the lower-left quadrant (restrained but unconstrained), the ambiguity in the meaning of "judicial activism" is revealed.

This leads to a proposal for the disambiguation of "judicial activism": we can reserve this term for decisions that unrestrained and hence are in the left-hand column of the two-by-two matrix.  This would end confusion about the meaning of "judicial activism" and hence improve the quality of discourse about constitutional theory.

Stipulation versus Metalinguistic Negotiation

So far, I have been suggesting the constitutional theorists stipulate the meaning of "judicial restraint" and "judicial constraint" along the lines suggested by Colby.  So long as the stipulations are clearly presented and understood, that should be sufficient to reduce the level of confusion in academic writing about constitutional theory.  But we can go one step further and engage in what philosophers of language have called "metalinguistic negotiation."  That is, we can try to change the way that the words are used so that the stipulated definitions become the accepted meanings.

Engaging in explicit metalinguistic negotiation requires that we present reasons for our metalinguistic proposal.  Why should we use the phrases "judicial restraint" and "judicial constraint" in the way that Colby proposed (and I endorse)?  That is, we need to advance arguments of conceptual and linguistic ethics--arguments about what concepts we should employ and what words we should use to represent those concepts.  The conceptual advantages of the restraint-constraint distinction have already been explored: the distinction makes debates in constitutional theory clearer and more precise.  And I think there are linguistic advantages as well.  The ordinary meaning of "constraint" is well adapted to the role that word plays in the concept of judicial constraint that Colby proposes.  The ordinary meaning of "restraint" serves well to express the deference-related concept of judicial restraint.

Conclusion

As always, this entry in the Legal Theory Lexicon is addressed to students (and especially first-year law students) who are interested in legal theory.  There are many further complications that take off from this introduction, including conceptual issues about the precise definitions and possible variations of restraint and constraint and theoretical issues about the very idea of metalinguistic negotiation.  But I hope that this simplified introduction is sufficient to enable readers to think further about these issues.

One final point.  Constitutional theory is a highly impacted field of discourse.  Saying something genuinely new is rare; saying something that is both new and useful is even rarer.  I do not know for sure that Thomas Colby was the first to use the restraint-constraint distinction, but I think he was.  We all owe him thanks.

Related Lexicon Entries

• Legal Theory Lexicon 035: Strict Construction and Judicial Activism
• Legal Theory Lexicon 071: The New Originalism

Bibliography

• Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).
• David Plunkett and Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response in Pragmatism, Law, and Language 56-75. (G. Hubb and D. Lind eds. 2014).

(Last revised, April 21, 2024.)

Legal Theory Bookworm: " The Constitutional Bind" by Rana

The Legal Theory Bookworm recommends The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them by Aziz Rana.  Here is a description:

An eye-opening account of how Americans came to revere the Constitution and what this reverence has meant domestically and around the world.

Some Americans today worry that the Federal Constitution is ill-equipped to respond to mounting democratic threats and may even exacerbate the worst features of American politics. Yet for as long as anyone can remember, the Constitution has occupied a quasi-mythical status in American political culture, which ties ideals of liberty and equality to assumptions about the inherent goodness of the text’s design. The Constitutional Bind explores how a flawed document came to be so glorified and how this has impacted American life.

In a pathbreaking retelling of the American experience, Aziz Rana shows that today’s reverential constitutional culture is a distinctively twentieth-century phenomenon. Rana connects this widespread idolization to another relatively recent development: the rise of US global dominance. Ultimately, such veneration has had far-reaching consequences: despite offering a unifying language of reform, it has also unleashed an interventionist national security state abroad while undermining the possibility of deeper change at home.

Revealing how the current constitutional order was forged over the twentieth century, The Constitutional Bind also sheds light on an array of movement activists—in Black, Indigenous, feminist, labor, and immigrant politics—who struggled to imagine different constitutional horizons. As time passed, these voices of opposition were excised from memory. Today, they offer essential insights.

And from the reviews:

"An accessible. . .work of legal and political history that speaks eloquently to democratic reform." ― Kirkus

"An eye-opening and exhaustive look at the U.S. Constitution. [The Constitutional Bind] will reward readers’ tenacity and enlighten academics, policymakers, and civic-minded Americans alike." ― Library Journal

"The ambition of Rana’s project is simultaneously diagnostic, expository, and reconstructive...a grand synthetic work of intellectual history...its very sense of overflowing detail and overlapping narratives relays the richness of American constitutional visions that have been lost." ― Jotwell

“The Constitutional Bind removes the cloak of veneration to reveal a tragically flawed document and generations of critics for whom the U.S. Constitution was an obstacle to democracy, a safeguard of white settler rule, and a barrier to universal freedom. In doing so, Rana has unearthed a dynamic history of alternative democratic movements and imaginaries within the U.S. and beyond. A genuine masterpiece.” -- Robin D. G. Kelley | author of "Freedom Dreams: The Black Radical Imagination"

“This astonishing masterpiece divides the age that came before it from the new era that its appearance opens. Rana’s refusal to look away from the disturbing reasons why an American culture of venerating the Constitution took hold will lead more people than ever before to rethink that devotion. No more important book about the Constitution has appeared in a hundred years—if ever.” -- Samuel Moyn | author of "Liberalism against Itself: Cold War Intellectuals and the Making of Our Times"

“Paradigm shifting. Rana argues that Americans’ reverence for their Constitution is the cause of our problems—not the remedy—and he recovers histories of resistance and emancipation that provide resources for this generation’s freedom struggles.” -- Reva Siegel | Yale Law School

“Illuminating in his excavation of several important critics of the Constitution whose voices have been stifled and given the uncertain health of the American constitutional order, Rana’s book could not be arriving at a better time. It deserves wide readership and, more to the point, discussion." -- Sanford Levinson | author of "Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)"

Download of the Week: "Congressional Outsiders and Textualist Non Sequitur" by Tsoi

The Download of the Week is Congressional Outsiders and Textualist Non Sequitur by Chun Hin Jeffrey Tsoi. Here is the abstract:

In Congressional Insiders and Outsiders, Amy Coney Barrett distinguished between “congressional insider” approaches like process-based theories (i.e., drawing interpretive resources from Congress’s procedures and practices) and “congressional outsider” approaches like textualism (i.e., drawing interpretive resources exclusively from ordinary meaning of the statutory text). According to Barrett, textualists would find an “outsider” approach normatively superior because courts should be faithful agents of the people, who do not usually have inside knowledge of Congress. This embodies a distinctive type of defense for textualism, which I call “outsider textualism,” based not on statutory text as the compromise drawn in Congress, but instead on a concern for persons subject to the law. I argue that this textualist argument nevertheless fails because it made two logical leaps: One, by assuming an “outsider” approach always equals faithful agency to the people; Two, by assuming that an “outsider” approach—if it does equal faithful agency to the people—could justify textualism. More specifically, the outsider perspective does not generally follow from “faithful agency” to the people because, for example, the people could legitimately expect administrative agencies to comply with a legislative command that is not accessible to an outsider; and even if the outsider perspective is justified in contexts such as criminal law, it does not follow that textualist understanding is fairly expected of an outsider criminal defendant. In other words, outsider textualism illicitly relies on the appeal of “fair notice” canons as a springboard for textualism in general. Instead of blanket justifying textualism, what faithful agency to the people requires might inevitably be a substantive, value-laden question dependent on our conceptions of justice.

Highly recommended.

Hart on OutCrits and 2024

Danielle Kie Hart (Southwestern Law School) has posted In This Moment (Southwestern University Law Review, Forthcoming) on SSRN. Here is the abstract:

It is 2024, and in the United States of America, the wealth gap is increasing. Women’s reproductive rights and the LGBTQIA+ community are under attack. Affirmative action in higher education is no more. And books are being banned all across the country. It is very easy to be overwhelmed and consumed by all of the problems that are confronting us and to lose sight of the bigger picture. In this very short essay, I situate our present moment in two important ways. First, I place 2024 into critical and historical context, because the problems currently confronting us are not isolated events that appear overnight. Instead, they are the current expressions of long-simmering antagonisms and fears that have deeply entrenched roots in our socio-economic-political system. This context should ground and guide us, the OutCrits of today and our allies, as we navigate the precarious world we find ourselves in. Second, I focus on the majority-white to minority-white demographic transition that will occur in the United States in 2044 as one of the triggers for what Antonio Gramsci calls an “organic crisis.” More specifically, I argue that the U.S. is currently in an organic crisis, one which I suggest threatens the white, hetero-patriarchal norms on which this country was built and has given rise to the “White Identity movement.” But, because a crisis does not dictate a specific outcome, the crisis we are currently in is also a moment of reconstruction and, therefore, a moment of potential change. It is up to us to make the most of it.

McGreal on True Threats, the First Amendment, and the Neuroscience of Fear

Paul E. McGreal (Creighton University) has posted True Threats and the Neuroscience of Fear (Case Western Reserve Law Review, Vol. 75, No. 2, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court’s recent decision on “true threats” and the First Amendment has an important blind spot: It unknowingly reflects an outdated account of how the brain produces emotions, and how we perceive emotions in others. The Court’s opinion treats a person’s reaction to a “true threat” – that is, the experience of fear in response to a threat of physical harm – as a reflex unaffected by the idiosyncrasies of the human brain. Neuroscience research shows that this view is wrong. Instead of passively awaiting a stimulus (like a threat) and then reacting, our brains constantly predict our external environment and the internal state of our bodies. These predictions produce the experience of an emotion like fear. While a predictive brain confers a powerful evolutionary advantage, its predictions can be wrong, sometimes in systemically biased ways that disadvantage people based on race or sex. Because of its blind spot, the Court missed the systematic biases posed by its true threats doctrine. To address this failing, this Essay turns to a source ignored by the Court and the parties: the Equal Protection Clause of the Fourteenth Amendment. Taking an equal protection approach, the Court should abandon its one-size-fits-all true threats doctrine in favor of a flexible analysis that takes account of different contexts.

Tsoi on Outsider Textualism

Chun Hin Jeffrey Tsoi (Georgetown University) has posted Congressional Outsiders and Textualist Non Sequitur (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:

In Congressional Insiders and Outsiders, Amy Coney Barrett distinguished between “congressional insider” approaches like process-based theories (i.e., drawing interpretive resources from Congress’s procedures and practices) and “congressional outsider” approaches like textualism (i.e., drawing interpretive resources exclusively from ordinary meaning of the statutory text). According to Barrett, textualists would find an “outsider” approach normatively superior because courts should be faithful agents of the people, who do not usually have inside knowledge of Congress. This embodies a distinctive type of defense for textualism, which I call “outsider textualism,” based not on statutory text as the compromise drawn in Congress, but instead on a concern for persons subject to the law. I argue that this textualist argument nevertheless fails because it made two logical leaps: One, by assuming an “outsider” approach always equals faithful agency to the people; Two, by assuming that an “outsider” approach—if it does equal faithful agency to the people—could justify textualism. More specifically, the outsider perspective does not generally follow from “faithful agency” to the people because, for example, the people could legitimately expect administrative agencies to comply with a legislative command that is not accessible to an outsider; and even if the outsider perspective is justified in contexts such as criminal law, it does not follow that textualist understanding is fairly expected of an outsider criminal defendant. In other words, outsider textualism illicitly relies on the appeal of “fair notice” canons as a springboard for textualism in general. Instead of blanket justifying textualism, what faithful agency to the people requires might inevitably be a substantive, value-laden question dependent on our conceptions of justice.

Highly recommended.

Ruskola on "A Certain Justice" by Lee

Teemu Ruskola (University of Pennsylvania Carey Law School; University of Pennsylvania - School of Arts & Sciences) has posted Book Review: A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (Law & Literature, Vol 36, p.163, 2024) on SSRN. Here is the abstract:

While there is already much excellent work in the genre of Chinese Law and Literature, Haiyan Lee’s A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press 2023) sets a new standard for the field. This is a review Lee’s smart and ambitious book, which far exceeds the bounds of both law and literature, expanding into adjacent fields of legal and literary humanities: history, political theory, moral philosophy, and cognitive psychology, to name just some of the many literatures on which Lee draws. A Certain Justice is filled with exciting local and global insights, some of which are dazzling.

Chatterjee on a Functionalist Theory of Legal Persons

Mala Chatterjee (Columbia Law School) has posted A Functionalist Theory of Legal Persons on SSRN. Here is the abstract:

This Article defends a functionalist theory of legal persons that substantively unifies individuals, corporations, and other constructed or juridical persons, and then canvasses revisionary implications for law. In more words, I argue that, because the law has (and ought to have) an instrumentalist conception of the world, legal persons are defined and delineated on the basis of functional—rather than natural or material—structures and properties. I then argue that, in order to fully reflect and realize this functionalism, the law’s present understanding of legal persons must be expanded in a number of significant ways. These include that i) the boundaries of individual legal persons—along with personal rights—ought to depart from the boundaries of human bodies far more explicitly and expansively than they presently do; ii) that the law ought to seriously consider contextual or collective legal persons beyond corporations; and iii) that the law’s mental state requirements perhaps ought to be interpreted as satisfiable by purely functional mental states, including those of “extended” and artificial minds.

Highly recommended. Download it while it's hot!

I argued for a functionalist approach to legal personhood in Legal Personhood for Artificial Intelligences, published in 1992.

Bloch on Students for Fair Admissions

Ofra Bloch (Tel Aviv University - Buchmann Faculty of Law) has posted Students for Fair Admissions V. Harvard and the Memory Wars (University of Pennsylvania Journal of Constitutional Law, Vol. 27) on SSRN. Here is the abstract:

This article adds to the growing body of scholarship addressing the aftermath of the Supreme Court's decision in Students for Fair Admissions v Harvard (SFFA) that effectively ended race-conscious affirmative action in college admissions as we know it. In contrast to this literature dedicated primarily to exploring the practical implications of the decision, the distinct focus of this Article is on the historical narrative constructed by the SFFA’s majority and its impact on the constitutional memory of race and racism. The article makes three key contributions: Firstly, it demonstrates how the SFFA majority opinion distorts collective recollections of racism, akin to bans on Critical Race Theory, undermining racial redress legitimacy. Secondly, it analyzes the amicus curiae briefs in SFFA to uncover how universities and other proponents of affirmative action participated in forming the ahistorical narrative that was ultimately adopted and applied by the SFFA majority. Finally, the article proposes strategies for reshaping collective memories at the grassroots level. Somewhat paradoxically, I argue that the current composition of the Court presents an auspicious opportunity to prioritize reclaiming diversity in ways that reflect past and present racial experiences in America, rather than solely focusing on strategies aimed at appealing to conservative justices.

Mauleón on White Attachment to Policing

Emmanuel Mauleón (UCLA School of Law - UCLA School of Law) has posted Legal Endearment: An Unmarked Barrier to Transforming Policing, Public Safety, and Security (California Law Review, Forthcoming) on SSRN. Here is the abstract:

(This Article is in the final round of preprint edits for the California Law Review)

The problems of racialized policing have come into renewed focus over the past decade. The advent of viral bystander videos has not only forced a popular confrontation with moments of both routine and extraordinary policing violence, but also sparked protests, uprisings, and grassroots movements to challenge current practices in policing and determine what must be done to transform it. And yet, even after the mobilization of one of the largest racial justice movements in American history, transformative change remains elusive. This Article offers an answer to this puzzle by foregrounding White people’s collective relationship with policing and describing how this relationship colors current debates on how to best address policing’s racial disparities.

The Article asks: “How might we reconcile White people’s articulated commitments to racial equality with their continued acquiescence in and support for a system of policing that continues to produce such stark racial disparities?” I answer with the theory of legal endearment, which suggests that groups who benefit disproportionately from systems of legal power tend to develop critical attachments to the institutions that maintain such unequal arrangements. For White people, policing is one such institution. Their attachment to policing provides at least a partial explanation for why meaningful police reform has been difficult to achieve.

White people’s legal endearment results from four significant and interrelated aspects of their relationship to policing: the experiential, the symbolic, the structural, and the affective. First, unlike many people of color, White people generally believe that police exist to “serve and protect” them because that is their general experience of policing. Second, whereas Black people and other people of color have had to worry about how policing positions them symbolically as criminally suspect and dangerous, White people generally have not. Instead, White people have largely benefited from their positive symbolic positioning as law-abiding and innocent. Third, policing responds to and reproduces a broader set of structural arrangements—including racially segregated spaces and social spheres—that have benefitted White people through the maintenance of White towns, suburbs, and neighborhoods, acting to racially circumscribe access to material resources. Finally, the multiple ways in which White people are socialized to ignore the material realities of race and to view race through the prism of colorblindness facilitates an affective relationship between White people and the police. By taking stock of these dimensions of White people’s relationship to policing and considering how these elements contribute to legal endearment with the police, we can begin to understand how legal endearment has operated as an unmarked barrier to achieving transformative police reforms.

Freilich on Law's Information Spillovers

Janet Freilich (Fordham University School of Law) has posted Law as a Lamp Post (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

Law produces all manner of public information: court documents, securities filings, patents, property records, and much more. This information is used in a multitude of ways—it teaches readers about individual cases, transactions, or entities, and is also aggregated to inform policymaking, set priorities, and drive predictive analytics and artificial intelligence.

But choices about the information produced (or hidden) by law are often unintentional. Doctrines and institutions that appear facially unrelated to information production—like subject matter jurisdiction—nonetheless affect the shape and quantity of data produced. And even doctrines focused on information—like property recordation—create data used for purposes never envisioned by the law. We can only count what we can see, so law is inadvertently deciding which transactions, cases, and people are influential and which are invisible. Choices about how law produces information are directly responsible for selection bias—and thus for incorrect decisions—in areas as varied as how we calculate risk of child abuse, classify causes of death, create contract drafting software, and automate adjudicative processes.

After demonstrating the prevalence of law’s accidental information spillovers and their effects—which are unaccounted for by existing theories of law and information—this Article provides an updated framework for incorporating information into the theory and structure of law and highlights new roles for legal doctrines and institutions. The Article concludes with concrete ways that this new understanding of information can affect policy, including how it can be factored into institutional and doctrinal decisions, how to update the cost-benefit analysis of legal information to account for new uses and audiences, and how law might address harmful biases in available legal information.

Fascinating and recommended.

Rozenshtein on the Ambiguity of Section 230

Alan Z. Rozenshtein (University of Minnesota Law School) has posted Interpreting the Ambiguities of Section 230 (41 Yale Journal on Regulation Bulletin 60 (2024)) on SSRN. Here is the abstract:

As evidenced by the confusion expressed by multiple Justices in last Term’s Gonzalez v. Google, there is little consensus as to the scope of Section 230, the law that broadly immunizes internet platforms from liability for third-party content. This is particularly striking given that no statute has had a bigger impact on the internet than Section 230, often called the “Magna Carta of the internet.”

In this essay I argue that Section 230, despite its simple-seeming language, is a deeply ambiguous statute. This ambiguity stems from a repeated series of errors committed by Congress, the lower courts, and the Supreme Court in the drafting, enactment, and early judicial interpretation of the statute.

This diagnosis, which I lay out in Part I, sets the stage for Part II, in which I consider three potential paths forward for the judicial interpretation of Section 230. In particular, I focus on a novel interpretative approach, by which courts would interpret Section 230 immunity narrowly in order to spur large technology companies to lobby Congress to act, thereby forcing Congress to clarify the scope of platform intermediary liability. But this approach carries substantial risks of disrupting the internet in the time between the judicial reinterpretation of Section 230 and Congress’s response, and thus represents at best an imperfect solution to the legislative and judicial mistakes that attended Section 230’s origins.

Highly recommended.

Ingram on Conspiracy and Criminal Law

Andrew Ingram (University of Texas at Austin - Department of Philosophy) has posted Conspiracy, Really? (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

A heap of criminals is not a conspiracy anymore than a pile of bricks is a house, yet every day in court, prosecutors elevate the stakes in prosecutions and plea bargaining by charging defendants who commit crimes in groups with conspiracy. The crime may be as disorganized as the impulsive decision to rob a convenience store or a spur of the moment choice to shoplift from Target, but if the prosecutor can show that more than one person participated in the crime, she can add a conspiracy charge. The premise of the article is that this is wrong and that conspiracy charges should be reserved for cases where there is an agreement to commit a crime followed by material planning and plotting to carry out the crime. Only in these cases do the defendants’ actions pose a special danger and deserve to be called a conspiracy.

This article diagnoses a problem with conspiracy law and proposes a solution. Conspiracy in the states and at the federal level is too broad and easily overused to cover petty conduct that is undeserving of being charged as conspiracy. Whenever two or more people commit a crime together, the prosecutor can easily tack on a conspiracy charge by claiming that they acted with a “mutual understanding,” and therefore met the critical “agreement” element of the crime.

My solution—which I have reason to think will be acceptable to both conspiracy’s friends and foes—is to add a substantial planning and organization requirement to the definition of conspiracy. This could be accomplished judicially, by reinterpreting the extant agreement element, or by legislation. The article shows various factors that can be used to instruct juries on whether the requirement has been met. Courts can ask whether the alleged conspiracy featured a pattern of criminal activity, a division of labor, hierarchy, and institutionalization; they can probe whether there was overt planning (a meeting or Slack channel), a lapse in time between the alleged agreement and the execution of the crime, and whether the target of the conspiracy was a sufficiently complicated crime to require planning and organization to execute it.

The problem solved is both a moral and a doctrinal one. Morally, it violates retributivist principles to multiply charges and punishments without multiplying wrongs. Moreover, conspiracy carries with it the Pinkerton vicarious liability principle, which can quickly escalate charges and prison sentences based on wrongdoing by fellow conspirators that the defendant did not consciously anticipate or intend.

Doctrinally, conspiracy law as it exists is a sloppy mess. Whether or not conspiracy is charged depends upon the whim of prosecutors rather than the facts, so long as more than one person was involved in the crime. In the course of the article, I argue that doctrinal scholarship has an important role to play in the effort for criminal justice reform because it can appeal to those in power who do not share the moral beliefs of criminal justice reformers or do not see how race and mass incarceration are intertwined.

Highly recommended.

Blondel on "Violence" in Federal Criminal Law

Erin C. Blondel (Duke Law School) has posted Crimes of Violence and Violent Crime (Notre Dame Law Review, Vol. 100) on SSRN. Here is the abstract:

Why can’t federal law define crimes of violence? Major federal statutes turn on whether someone was convicted of a violent crime. But judges and scholars widely agree that the law defining violence is “chaos.” This Article treats the problem as one of statutory design and construction. What’s a violent crime is a context-specific judgment call—the kind the law usually adjudicates factually, through criminal prosecutions. In other words, it’s a standard. But the Supreme Court has increasingly treated violence as a rule, stripping factual information and interpretive flexibility that might help federal judges judge crimes.

Predicate statutes like the violence definitions are hardly unusual, however, and most have operated smoothly, without mass confusion. They differ from federal violence law by using simpler, rule-friendly criteria. They typically list qualifying crimes, and courts interpret criteria more flexibly, leaving some room for facts and interpretation. That experience shows that federal law is fixable. Congress should return to listing violent crimes, as it did before the 1980s. And the Supreme Court should scrap its rigid interpretive rules and give federal judges more flexibility to judge violence sensibly.

The federal experience defining violence offers a case study in the classic rules-versus-standards debate and the problem with treating standards as rules. And it contradicts a favored proposal among leading criminal law scholars and some jurists to make crime definitions more precise—more rule-like—to constrain prosecutorial discretion. Crimes are standards, and discretion is necessary to interpret them across thousands of unpredictable fact patterns. Prosecutorial discretion, in other words, is not just enforcement discretion but interpretive discretion. Criminal procedure constrains that discretion by distributing it across many interpreters—law enforcement, prosecutors, defense attorneys, defendants, judges, and juries—within a broader network of laws, procedures, policies, and norms. Longstanding debates in rules versus standards largely ignores this sort of “distributed distraction,” but it helps make discretionary judgments like violence—and crime—make sense.

Omari, Rueda-Saiz, & Wilson on New Legal Realism

Jeffrey Omari (Gonzaga University - School of Law), Pablo Rueda-Saiz (University of Miami School of Law), & Richard Ashby Wilson (University of Connecticut School of Law; Department of Anthropology, University of Connecticut) have posted New Legal Realism at 20: Rethinking Law in an Era of Populism and Social Movements (Connecticut Law Review, Vol. 57, No. 1, 2024) on SSRN. Here is the abstract:

This article critically examines the New Legal Realism (NLR) movement on its 20th anniversary, shedding light on its distinctive intellectual contributions. By evaluating NLR’s unique imprint both methodologically and substantively, this study explores the movement's relationship to other empirical approaches to the study of law. In contrast to theoretical perspectives that narrow the law to a mere instrument of social control, NLR advocates recognize that law is a more complex, nuanced social phenomenon, which often has unintended consequences. To create grounded theories that account for the multifaceted character of the law, NLR employs a diverse range of methods, reaffirming the importance of “looking up, down, and sideways.” Notably, it embraces both top-down and bottom-up methods, providing comprehensive insights into the intricate interactions and competition between various actors and legal institutions. Moreover, NLR stands out for its commitment to a comparative, cross-national exploration of legal phenomena, fostering a refined understanding that embraces complexity while allowing for more grounded generalizations about the relation between law and society.

The study focuses on two cases, one in Colombia and the other in Brazil, to elucidate the power dynamics of law's interaction with elites and grassroots social movements. In the Colombian context, the examination reveals how corporate law and neoliberal reforms can be appropriated by grassroots social movements that repurpose them to advance progressive causes. Conversely, the Brazilian case illustrates a contrasting scenario where a progressive government policy becomes susceptible to exploitation by populist and illiberal leaders, leading to unintended outcomes that are contrary to its original inclusive intent. Both cases serve as poignant examples of the importance of NLR’s insistence on observing top-down policies as well as bottom-up social processes to understand the ways in which law and policy acquire a life of their own as diverse actors deploy them in varied ways. They illustrate the essential nature of the law itself and how the law in any given moment represents the crystallization of the social forces that produced it through competition over the direction of legal and social change.

Carpentier on Legal Facts

Mathieu Carpentier (Universite de Toulouse 1 Capitole) has posted Against "Legal Facts" on SSRN. Here is the abstract:

In this paper, I set out to argue that we should stop talking about “legal facts” in general jurisprudence. This goes especially for legal positivists who seem to think that positivism is a theory about the way “legal facts” depend on – are determined by – supervene on – are grounded in – social or moral facts. This is very neat way to frame the issues at hand: it’s all about facts of various sorts: it’s facts all way down. Neat as it is, I will argue that this framing should be resisted.

Legal positivism was never a theory of legal facts simpliciter, but only a very specific and distinctive set of facts about law: namely, the fact that certain norms belong to legal systems, and others don’t. Legal positivism is a thesis about norm membership (what is sometimes called "legal validity"). What makes a given norm exist – or not – qua legal norm is (according to positivists) a matter of social fact. This is the core thesis of legal positivism.

On the other hand, ever since Mark Greenberg introduced the phrase, “legal facts” are usually defined as facts about the “content of the law”, which is very ambiguous and covers issues completely orthogonal to positivism (such as issues about normative content and interpretation). Since the determination of normative content may, in certain circumstances, rest on moral considerations – without there being any threat to the core claim of legal positivism – it is simply not true that legal positivism is the thesis that legal facts are always determined by social facts and never by moral facts.

More insidiously, the imprecision of the “legal facts” framing is a Trojan Horse for holistic theories of normative content which flout the membership/content distinction – and do not rest on the existence of norms atomistically individuated. Since positivism is mainly a theory of the existence of legal norms, talk of “legal facts” distort the debate with antipositivists (such as Dworkin and Greenberg) by making it the default picture that the “content of the law” is not a set of legal norms, but a set of “facts” ("eg the fact that Jones legally ought to pay 35 dollars to Smith”) which can then be grounded holistically in moral facts. This in turns forces positivists to make extreme contortions in order to salvage the thesis that “legal facts are grounded in social facts”, thus abandoning the atomistic picture of the law which is part of the core thesis of legal positivism.

Finally, talk of “legal facts” has been embraced by many positivists out of metaphysical appetite. Facts are great, because, contrary to other entities, eg, norms, whose ontological status has always been disputed, they are perfect for metaphysical treatment. This is especially visible in the growing literature on grounding and the law. If grounding is about the way some facts determine others at different levels of fundamentality, then legal facts are obvious candidates for grounding-based explanations of the law. I suggest that jurisprudes – of all stripes – should resist this new metaphysical turn in jurisprudence, which impoverishes our common frameworks of conceptual analysis and obfuscate many important philosophical questions about law.

Highly recommended. Download it while it's hot!

Knowles-Gardner on NAACP v. Alabama ex rel. Patterson

Helen J. Knowles-Gardner (Institute for Free Speech) has posted The First Amendment to the Constitution, Associational Freedom, and the Future of the Country: Alabama’s Direct Attack on the Existence of the NAACP on SSRN. Here is the abstract:

Sixty years ago, on Wednesday April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized NAACP v. Alabama ex rel. Patterson (1958) as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, this article argues that Kalven’s categorization of Patterson (and the three other U.S. Supreme Court rulings it ultimately took to ensure Alabama’s compliance with the 1958 decision) was mistaken. Instead, the litigation was designed and intended to put the NAACP out of business (which, in Alabama, it did for eight years).

Part of an extensive research project focused on the history of this protracted litigation, this article is narrowly focused on the two years leading up to, and the first few months following, the June 1, 1956, injunction preventing the NAACP from doing business in the state that Alabama’s Attorney General John Patterson secured from Montgomery County Circuit Court Judge Walter B. Jones. Ultimately, that injunction led to an effort to compel the NAACP to turn over its Alabama membership lists to the Attorney General. To borrow and only slightly change Jason Robards’s famous line in All The President’s Men, nothing was riding on this litigation except the First Amendment, which guarantees the right to peaceably assemble, and the future of the country.

Recommended.

Dagan & Heller on Autonomy Defaults and Contract Theory

Hanoch Dagan (Berkeley Law School) & Michael Heller (Columbia University - Columbia Law School) have posted Autonomy Defaults on SSRN. Here is the abstract:

You can scribble an agreement on a napkin or hire lawyers to negotiate hundreds of pages. Either way, most of your contractual obligations won’t be in your agreement. They will be in the background rules contract law applies absent your express agreement. Getting the defaults right is a core task of contract law; justifying those defaults is a core task of contract theory.

This Essay introduces autonomy defaults, the first conceptually-coherent and normatively-attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our autonomy through two pathways: empowering defaults that proactively facilitate people’s autonomy and safeguarding defaults that protect our future selves and ensure relational justice.

Sometimes, the parties to a commercial contract are legally-sophisticated, symmetrically-situated players who just want to get rich. There, the welfare-maximizing default is often the autonomy-enhancing one. But for the vast run of contracts involving ordinary people – getting jobs, getting married, buying homes, buying stuff – empowering and safeguarding defaults may diverge from their efficiency-based counterparts. In these cases, the law often does – and always should – opt for an autonomy default, even at the price of some inefficiency.

Highly recommended.

I was disappointed that there was no discussion of moral pluralism and public reason in this very fine paper.

Eidelson & Hellman on Race Conscious Admissions after SFFA

Benjamin Eidelson (Harvard Law School) & Deborah Hellman (University of Virginia School of Law) have posted Unreflective Disequilibrium: Race-Conscious Admissions after SFFA (American Journal of Law and Equality (Summer 2024)) on SSRN. Here is the abstract:

What does Students for Fair Admissions v. Harvard College (SFFA) mean for race-conscious admissions practices and for equal protection law? While the decision announces a victory for opponents of affirmative action, it also evinces a telling ambivalence that warrants closer examination. Even as it purported to condemn race-based decision-making, the conservative majority acknowledged the relevance of race in individual people’s lives—and invited universities to attend to this dimension of their experiences—in ways that contradict any standard notion of colorblindness. None of the values invoked in the Court’s opinion, we argue, can support a principled distinction between the forms of race-consciousness that the Court approved and those that it probably intended to inter. In contrast to the “reflective equilibrium” to which many legal thinkers aspire, we conclude, SFFA reveals the Court to be in a state of unreflective disequilibrium—pulled in different directions, but lacking, so far, the willingness to adjust its starting points as necessary to reconcile these conflicts. As the Court tries to build on SFFA’s foundation in the years to come, we expect that it will prove increasingly difficult to square the Court’s conviction that people should be assessed based on their individual qualities and experiences with its conviction that race must be irrelevant.