Legal Theory Blog

Cavedon on Modern Liberty and Aquinas

Matthew Cavedon (Emory University - Center for the Study of Law and Religion) has posted Early Stirrings of Modern Liberty in the Thought of St. Thomas Aquinas on SSRN.  Here is the abstract:

In a 2021 contribution to Politics and Religion, Jesse Russell writes that St. Thomas Aquinas “had a decidedly illiberal view of a government.” He says that Aquinas “advocates a government in which the people are not given public liberty” and endorses skepticism toward the view that Aquinas “prepare[d] the way for the mixed monarchy of the English constitution.” But Aquinas identified consent as the foundation of political society, approved of democratic selection of public authorities, deemed “the best” type of government to feature popular representation, and warned that “a scheme should be carefully worked out which would prevent” the rise of tyranny. He was no proto-reactionary. The great modern rapprochement between Thomism and liberal democracy was borne of ideas that stirred in Aquinas’s own writings eight centuries ago.

Rappaport on Chevron and Statutory Originalism

Michael B. Rappaport (University of San Diego School of Law) has posted Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act (Wake Forest Law Review, Vol. 57, No. 4, 2023) on SSRN.  Here is the abstract:

The Chevron doctrine, which requires courts to defer to an agency’s interpretation of a statute that it administers, is a central component of the administrative state. But in recent years, the doctrine has been strongly criticized for being inconsistent with the original meaning of the Administrative Procedure Act (“APA”).

In a recent article, Cass Sunstein defends Chevron against this charge, arguing that the original meaning evidence is equivocal. Sunstein maintains that one cannot clearly reject Chevron and therefore the Supreme Court should not overturn the case.

In this Article, I criticize Sunstein’s defense of Chevron and argue that Chevron is plainly inconsistent with the APA’s original meaning. Some commentators reject Chevron on the ground that the APA does not allow for agency deference. While I agree with these commentators that this is the best reading of the APA, I also agree with Sunstein that this is not the only possible reading of the statute. But this lack of clarity about the APA does not help Sunstein’s argument. Even if one interprets the APA’s text as Sunstein does, this still does not justify Chevron deference. Instead, it results in deference for mixed questions but no deference for pure questions of law. This interpretation would involve a narrower type of deference that would significantly trim the Chevron doctrine.

The Article then reviews and criticizes a more recent defense of Chevron deference by administrative law scholar Ronald Levin. While Levin presents additional arguments for Chevron deference, I conclude that these arguments are no more successful than Sunstein’s.

Highly recommended.  Download it while it's hot!

For a different take, see Chevron as Construction (with Cass Sunstein) and Disaggregating Chevron.

Maltz on San Antonio Independent School District v. Rodriguez & Judicial Appointments

Earl M. Maltz (Rutgers, The State University of New Jersey - Rutgers Law School) has posted The Road to Rodriguez: Presidential Politics, Judicial Appointments, and the Contingent Nature of Constitutional Law (Virginia Law Review Online) on SSRN.  Here is the abstract:

San Antonio Independent School District v. Rodriguez was by any standard one of the most consequential decisions of the early Burger era. Not surprisingly, the doctrinal arguments that underlay the Court’s analysis in Rodriguez have been dissected in detail by many academic commentators. By contrast, this essay, which was prepared for a symposium commemorating the fiftieth anniversary of the decision, focuses on the institutional context in which the decision was rendered. The essay argues that the outcome of the case was in fact prefigured by a series of events that took place almost five years before the decision was handed down and led to the creation of a Court where a majority of the justices were hostile to the claims of the plaintiffs. Thus, Rodriguez provides a classic illustration of what might aptly be described as the contingent nature of constitutional law.

Bernick & Lens on Originalism, Abortion, and Pregnancy in 1868

Evan D. Bernick (Northern Illinois University - College of Law) & Jill Wieber Lens (University of Arkansas - School of Law) have posted Abortion, Original Public Meaning, and the Ambiguities of Pregnancy on SSRN.  Here is the abstract:

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion.

Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

Recommended.

Lahav on the History of Products Liability

Alexandra D. Lahav (Cornell Law School) has posted A Revisionist History of Products Liability on SSRN.  Here is the abstract:

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law — that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods — is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity arguments and contract was not their paradigm for understanding a producer’s relationship with users of its products. This analysis has implications for how we view the development of the common law today. And it serves as a warning not to rely on potted histories from casebooks in determining what the common law was in the past.

Surprising, but not surprising.  Highly recommended.  Download it while it's hot!

Heller on Autonomous Weapons and the Concept of the Human

Kevin Jon Heller (University of Copenhagen (Centre for Military Studies)) has posted The Concept of 'The Human' in the Critique of Autonomous Weapons on SSRN.  Here is the abstract:

The idea that using “killer robots” in armed conflict is unacceptable because they are not human is at the heart of nearly every critique of autonomous weapons. Some of those critiques are deontological, such as the claim that the decision to use lethal force requires a combatant to suffer psychologically and risk sacrifice, which is impossible for machines. Other critiques are consequentialist, such as the claim that autonomous weapons will never be able to comply with international humanitarian law (IHL) because machines lack human understanding and the ability to feel compassion.

This article challenges anthropocentric critiques of AWS. Such critiques, whether deontological or consequentialist, are uniformly based on a very specific concept of “the human” who goes to war: namely, the Enlightenment subject who perceives the world accurately, understands rationally, is impervious to negative emotions, and reliably translates thought into action. Decades of research in cognitive psychology indicate, however, that the Enlightenment subject does not exist. On the contrary, human decision-making is profoundly distorted by cognitive and social biases, negative emotions, and physiological limitations — particularly when humans find themselves in dangerous and uncertain situations like combat. Given those flaws, and in light of rapid improvement in sensor and AI technology, it is only a matter of time until autonomous weapons are able to comply with IHL better than human soldiers ever have or ever will.

The article itself is divided into five sections. Section I critiques deontological objections to autonomous weapons. It shows that those objections either wrongly anthropomorphize AWS by assuming they “decide” on targets in a manner similar to humans or are predicated on a romanticized and anachronistic view of war in which most killing takes place face-to-face between combatants of equal status.

Section II addresses the common argument that IHL compliance requires human understanding — particularly the ability to discern the intentions of potential targets. The section demonstrates that such understanding is far less necessary to IHL than AWS critics assume and explains why, in those situations in which judgment is necessary, limits on human decision-making undermine the idea that human soldiers are more likely to comply with IHL than autonomous weapons.

Section III responds to the claim that autonomous weapons will not be able to comply with IHL as well as human soldiers because machines cannot feel compassion. It shows that compassion is irrelevant to IHL compliance, that compassion can lead to negative outcomes in combat as well as positive ones, and that any potential benefits of compassion are far outweighed by the costs of negative emotions such as stress and anger.

Section IV addresses the argument that the non-human nature of autonomous weapons makes it difficult, if not impossible, to hold humans responsible for war crimes that AWS commit. The section demonstrates not only that the problem of “accountability gaps” is significantly overstated, but also that there is no significant difference between human soldiers and autonomous weapons in terms of criminal responsibility.

Finally, Section V explores the implications of the idea that it is highly likely autonomous weapons will eventually be able to comply with IHL as well as — if not better than — human soldiers. It argues that consequentialist critics are not primarily concerned AWS will be worse soldiers than humans. Instead, their real worry is that they will be better ones, because the more humane war becomes, the more difficult it will be to eliminate war itself. This, the section argues, is actually the most powerful argument against autonomous weapons — but one that applies to most of the weapons developed over the past century.

Profound and important.  Highly recommended.  Download it while it's hot!

Stern on Mansfield, Burrow, and the Form of Legal Decisions

Simon Stern (University of Toronto - Faculty of Law) has posted Mansfield, Burrow, and the Reformulation of the Legal Decision (forthcoming in Melissa Ganz, ed., British Law and Literature in the Long Eighteenth Century (Cambridge UP)) on SSRN.  Here is the abstract:

Whereas scholarship on the role of precedents and precedential reasoning in law has tended to focus on questions concerning a commitment to stare decisis, and the nature of analogy and justification, this discussion focuses on rhetorical and formal features of legal opinions, such that they present themselves as eligible for use as precedents. A judge’s deliberate effort to create a precedent manifests a distinctive conception of the judicial role—a conception that carries with it a raft of assumptions about the law’s role in guiding behavior, the public’s access to judicial decisions, and judges’ ability to understand and anticipate the typical person’s response (such that the proposed solution can be expected to achieve its goal). Lord Mansfield, Chief Justice of the King’s Bench from 1756 to 1788, used a range of rhetorical and formal features to indicate that he was changing the law and to signal that a given decision should govern future cases. These include express rejection of earlier cases, careful articulation of the holding in a prominent place to enable its future use, and more explicit presentation of the facts than many of his precursors and contemporaries. His law reporter, James Burrow, credited as the creator of the headnote, complemented these efforts through his use of typography and page layout. Burrow’s ideas about clearer, fuller, and more focused reporting of legal decisions probably owed a considerable amount to his longstanding involvement with the Royal Society, whose published Transactions exhibit a series of generic changes in the first half of the eighteenth century, anticipating in some respects those that Burrow would adopt.

Fascinating.  Highly recommended.

Duranti on the Latvian Constitutional Court

Francesco Duranti (Università per Stranieri di Perugia - University for Foreigners of Perugia (Italy)) has posted Constitutional Justice in Latvia: A Young Court, a Strong Institution (DPCE ONLINE, no 4/2022) on SSRN.  Here is the abstract:

Constitutional justice is a relatively recent acquisition in the constitutional system of the Republic of Latvia. After the collapse of the Soviet Union, when democracy was restored in Latvia, the necessity to establish a Constitutional Court was intensively debated: Latvia chose the European, centralized, model of constitutional review, based on ad hoc Constitutional Court, separated by the ordinary judiciary, and specialized in constitutional adjudication. The Latvian Constitutional Court has frequently referred to comparative law in his judgments and today this practice is still in use, confirming the general trend according to which it is an important tool to reinforce the legitimization of a new Constitutional Court.

Fasel on the Constituent Power and Natural Rights

Raffael N Fasel (University of Cambridge - Faculty of Law) has posted Natural Rights, Constituent Power, and the Stain of Constitutionalism on SSRN.  Here is the abstract:

The power to make constitutions (the so-called constituent power) is predominantly understood today as a legally unlimited power belonging to the people. This understanding sits uncomfortably with constitutionalism: the idea that public powers are legally limited. Would such a power not leave an indelible blemish on constitutions that are otherwise committed to constitutionalism? This article shows that this problem, which I call the Stain of Constitutionalism, stems from a misapprehension of what constituent power was originally understood to be. Focusing closely on the writings of Emmanuel Joseph Sieyès, Thomas Paine, and the Marquis de Condorcet, I demonstrate that, far from adopting it, these founding fathers of constituent power theory rejected the notion of unlimited constituent power. Instead, they defended a natural rights approach according to which constituent power is legally limited by considerations such as freedom and equality.

Highly recommended.

Miller on Legal Poetics

Jeffrey Miller (McGill University (2014); Western Univ. (2009-12); Law and Justice Research Centre) has posted French Fries Are Meat: The Legal Poetics of Getting from Law to Justice on SSRN.  Here is the abstract:

A summary way of describing the present essay is an analysis of linguistic metaphysics in law. It considers legal operations that make a juristic “something” out of relatively thin air – an undertaking, a trust, a dismissal, a warranty, even reasonableness – in a more or less supernatural iteration but with mundane and practical consequences. More pointedly, it considers how law regularly uses abstract or even poetic language to attempt to work justice, how certain, notionally poetic, forms of legalese – fictions, constructions, deemings, presumptions, etc. – comprise a branch of equity, a systematic effort to ease the rigor of black letter law, to render it more humane or “more moral.” I examine how litigants, lawyers, judges, and legislators remake our societies through The Word, shaping law in the cause of renovation and sometimes redemption. I also consider how such poetics can serve the improper purpose of judicial legislating or politics.

Strang on Originalism

Lee J. Strang (University of Toledo College of Law) has posted Originalism's Promise: An Intentionally Thin, Natural Law Account of Our Fundamentally Just, Complex, Constitutional System (11 Faulkner L. Rev. ___ (2023)) on SSRN.  Here is the abstract:

In this Response to Professors Green, Lewis, and Segall, I address four major criticisms offered by them. My responses show that my natural law account of the Constitution is both reasonably modest in the claims it makes upon Americans while retaining sufficient power to support the Constitution’s original meaning. The natural law account is modest because its claims about what the natural law is are relatively modest, as exemplified by my instrumental conception of the common good, and the account makes room for significant human creativity through positive law to organize Americans for the common good. Yet, it remains powerful enough to provide reasons for Americans to (continue to) support the Constitution’s original meaning.

First, I argue that my use of the Aristotelian philosophical tradition to describe the source of my account’s key conceptual tools is both accurate and valuable, and that it is accessible to scholars and educated Americans. Second, I explain why my natural law account of the Constitution, which employs a full(er) legal theory (than some originalists) is more attractive than a parsimonious account premised solely on the virtue of truth telling. Third, I show that the thin conception of the common good I employ is sufficiently weighty to provide Americans with reasons to support the Constitution’s original meaning. Fourth, I defend my Deference Conception of Constitutional Construction and my theory of originalist precedent from Professors Green’s and Segall’s criticisms. I show that both are reasonable attempts by our legal system to implement the Constitution in light of the limits of the human condition and the mistakes that judicial officers will make.

Highly recommended.

Halpern & Ben Dor on the First Amendment and Boycotts

Josh Halpern (Harvard University - Harvard Law School) & Lavi Ben Dor (University of Pennsylvania Law School) have posted Boycotts: A First Amendment History on SSRN.  Here is the abstract:

Over the past decade, more than half of U.S. states have enacted laws that prohibit recipients of public contracts and state investment from boycotting the State of Israel. These so-called “anti-BDS laws” have triggered a debate over whether the First Amendment’s Free Speech Clause includes a “right to boycott.” This Essay is the first to take up that question thoroughly from a historical standpoint. Examining the boycott’s constitutional status from before the Founding to the present era, we find that state actors have consistently treated the boycott as economic conduct subject to governmental control, and not as expression presumptively immune from state interference. Before the Founding, the colonists mandated a strict boycott of Britain, which local governmental bodies enforced through trial proceedings and economic punishments. At common law, courts used the doctrine of conspiracy to enjoin “unjustified” boycotts and hold liable their perpetrators. And in the modern era, state and federal officials have consistently compelled participation in the boycotts they approved (like those of apartheid-era South Africa and modern-day Russia), while prohibiting participation in the ones they opposed (like that of Israel).

The Essay concludes that modern anti-boycott laws not only fit within, but improve upon, this constitutional tradition. As the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware illustrates, the common law approach risks violating the First Amendment if the doctrine is applied to restrict not only the act of boycotting or refusing to deal, but also the expressive activities that accompany such politically-motivated refusals. Modern anti-boycott laws avoid that problem by surgically targeting the act of boycotting, while leaving regulated entities free to say whatever they please. From the standpoint of history, these laws reflect First Amendment progress, not decay.

Highly recommended.

Blackhawk on Legislative Constitutionalism and Indian Law

Maggie Blackhawk (NYU Law School) has posted Legislative Constitutionalism & Federal Indian Law (Yale Law Journal, Forthcoming) on SSRN.  Here is the abstract:

The United States has reached a moment in its constitutional history when the Supreme Court has asserted itself as not only one of, but the exclusive audience to ask and answer questions of constitutional meaning and constitutional law. In decision after decision, the Court has declared the federal judiciary as the primary forum and itself the primary arbiter of constitutional conflict and debate. The Court has asserted its methods—text, history, tradition—as the preeminent modes of constitutionalism. The Court has also established the superiority of its substantive vision of constitutional law and values—including a narrowed vision of equality as “equal treatment” as the sole vision of equality recognized by our constitutional framework. This “juricentric” constitutionalism has relegated the other, so-called political branches to a second-class status with respect to the Constitution. Not only has the dominance of the Court dampened our constitutional culture writ large, but it has also occluded the ways that Congress and the executive branch, as unique institutions, play distinctive and vital roles within constitutional lawmaking. This Article explores what lessons public-law scholars might draw from federal Indian law in building an alternative constitutional culture to our current, and deeply flawed, juricentric system.

So, what is to be done once scholars and the public lose the taken-for-granted belief that aggressive judicial review is necessary or even beneficial for our constitutional framework? How does one navigate a Supreme Court that is hostile to fundamental constitutional values, especially in the context of minority protection, rather than the best suited “pronouncer and guardian of such values”?

This Article offers some preliminary answers to these questions through the lens of Native people and their advocacy strategies, histories, constitutional philosophies, and the legal frameworks that govern them. The body of law that governs the relationship between Native peoples, Native nations, and the United States—termed federal Indian law—offers a unique perspective on the distinctive roles of the other branches in making and interpreting constitutional law. Of course, the success of Native advocates in shaping the United States constitutional system should not be overstated, nor should it be washed of the blood of generations of Native men, women, and children required to secure even the most tenuous constitutional change. But this Article begins to explore the ways that the resilience of Native advocates, their innovative strategies and the legal frameworks born of those strategies offer lessons for our current constitutional moment.

Highly recommended.  Download it while it's hot!

Calderón Gómez on Co-Obligated Debt

Luís Calderón Gómez (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Whose Debt Is It Anyway? (Tax Law Review, Vol. 77, 2023) on SSRN.  Here is the abstract:

Every year, companies issue hundreds of billions of dollars of debt with a feature carrying unclear tax consequences. So do individuals, who frequently tie their most significant financial asset to this type of instrument. Yet this instrument is not an exotic or innovative financial derivative, but is simple vanilla debt with two or more borrowers, or “co-obligated debt”. Co-obligated debt poses a conceptual problem for the law because it does not fit neatly into the simple and dyadic legal framework underlying the law’s conception of debt, where one creditor lends money to one borrower in exchange for a direct promise to pay the amount borrowed plus interest. Such a framework collapses when the debt instrument has multiple borrowers—as a matter of law or as a matter of fact. As a result, courts and the IRS frequently struggle with the consequences of a transaction, unable to consistently find a resolution to the puzzle: whose debt is it anyway? This Article illuminates the previously unexplored side of this fundamental aspect of the law on debt, investigating its roots in surety, guaranty, and restitution law, and surveys the law’s inconsistent treatment of multiple obligors, emphasizing its erratic stances on interest deductions, cancellation of indebtedness income, and debt modifications. The Article then identifies and categorizes the inconsistencies and shortcomings in these areas of the law, developing a typology of approaches to the issue of who owes co-obligated debt. After tracing the law’s shortcomings, the Article culminates by developing a comprehensive solution to the problem of “ownership” of joint debt, resolving the unpredictability, inconsistency and undesirability plaguing current law. Resolving the puzzle of who owes joint debt not only provides uniformity and predictability to the IRS and the courts’ stances on interest deductions, cancellation of indebtedness income, and debt modifications; but it also further illuminates solutions to legal problems in contiguous areas of the law, such as the sourcing of interest income in some cross-border transactions, challenging certain tax evasion schemes, and finding a more comprehensive definition of “debtor”.

Highly recommended.

Prendergast on the Provocation Defense

David Prendergast (School of Law, Trinity College Dublin) has posted Judicial Stewardship of the Provocation Defence in People (DPP) v McNamara ((2021) 3 Irish Supreme Court Review 69) on SSRN.  Here is the abstract:

The defence of provocation reduces murder to manslaughter on the basis that the killing was carried out in a state of reduced self-control due to an extreme emotional reaction to a provoking act done by the deceased to the defendant. People (DPP) v McNamara [2020] IESC 34 is the first Irish Supreme Court judgment on the partial defence’s substance and is a comprehensive restatement. The case provides opportunity for renewed consideration of provocation and the question of judicial stewardship of common law, noting that no Irish statute has yet modified the defence. McNamara insists on limits to the provocation defence’s availability. The case has been seen as changing Ireland’s ‘wholly subjective’ provocation defence to partly objective. This article will say, however, it has never been accurate to call the Irish provocation defence ‘wholly’ or ‘entirely’ or ‘purely’ or ‘exclusively’ subjective and McNamara – in its central holding and main description of the defence – reasserts already existing objective limitation. McNamara can be reconciled with the landmark Court of Criminal Appeal judgment, People (DPP) v MacEoin [1978] IR 27. While in its main part McNamara is conventional incremental adjustment of common law doctrine, its obiter dicta, as will be argued in section 4 of this article, are a misplaced attempt to adjust law to reflect social mores. Saying the partial defence is unavailable specifically in cases of intoxicated defendants, warped notions of honour or sexual propriety, and ‘male pride’ are new stipulations purportedly limiting the defence’s availability. These statements have an ambivalent status. They may be merely illustrations of how cases should work out, or they might be taken as new rules and as such they risk amounting to judicial legislation. The provocation doctrine already contains the means for its evolving application. There is meant to be a grave provoking act to ground the partial defence and what particular acts, in context, will be considered a grave provocation will change with the times. The provocation defence does not have to be ‘adapted to new social mores’ with judicial stipulations, as the McNamara judgment sees it; rather, the results of its application should automatically track social morality’s evolution. It should be redundant for the court to stipulate, for instance, that warped notions of honour cannot ground the provocation defence. For ‘warped’ honour cannot be used to generate sufficient provocation out of what are, in society’s view, non-existent or, at most, low-level, insults. In the Irish context, such statements by the Supreme Court might be helpful in addressing the mistaken notion that just about anything can constitute a provocation. It will be argued in section 3 of this article, however, that McNamara and the concurrent case of People (DPP) v Almasi [2020] IESC 35 represent a missed opportunity for the Supreme Court to more definitively emphasise and strengthen the gravity of provocation requirement as a general limitation on the availability of the defence. This would have been a more efficient and less contentious way to tighten up the defence than the approach taken by the Supreme Court. Section 2 of this article will articulate a contemporary rationale for provocation. As a contemporary rationalisation, it cannot use, and is not beholden to, reasons that are no longer relevant or worthy. Provocation, it will be suggested, can be seen today as reflecting culpability-extenuation somewhat similarly to the diminished responsibility defence. For the avoidance of doubt, this is not a statement of law, it is a rationalisation projected on to the provocation defence. What appellate judges have said about the defence’s rationale is not authoritative in contrast to what they do in regard to its substance. The rationalisation offered in section 2 happens to be drawn from academic writing rather than judicial exposition. Section 2, and this article in general, participates in a tradition of seeking to make sense of an area of law where the collection of judicial statements lack coherence and secure connection to general principles of the criminal law system. Section 2 is an effort to contribute towards a rational reconstruction of the provocation defence, which, in turn, contributes to debate about what to do with it. The section 2 rationalisation will also serve to inform some of the critical analysis of the McNamara judgment that follows in section 3, which is the ‘casenote’ section of this article. After that, section 4 uses a distinction between incremental law-making and legislation to evaluate the judicial stewardship of common law doctrine in McNamara. In concluding, section 5 speculates on McNamara’s possible legacy.
See final published version: David Prendergast, ‘Judicial stewardship of the provocation defence in People (DPP) v McNamara’ (2021) 3 Irish Supreme Court Review 69.

d'Aspremont on Consenting to International Law

Jean d'Aspremont (University of Manchester - School of Law; Sciences Po Law School) has posted Consenting to International Law in Five Moves (in Samantha Besson (ed.), Consenting to International Law (Cambridge University Press, 2023)) on SSRN.  Here is the abstract:

This chapter seeks to unpack 5 of the main discursive moves witnessed in the literature and case-law pertaining to the question of consent to international law. This chapter argues that these 5 specific discursive moves are performed by almost anyone engaging with the question of consent to international law, be such engagement on the more orthodox side or the more critical side of the argumentative spectrum. These five discursive moves correspond to the reproduction of a very modernist understanding of authority, the constitution of the very subject that is consenting, the anonymization of the author of consent, the reversal of the temporality of the legal discourse on consent and the adoption of very binary patterns of thought. This chapter shows that discursive moves made by international lawyers around the idea of consent bears heavily upon the type of political legitimacy, the type of geography, the type of responsibility, the type of temporality, and the type of hermeneutics, that international law is serving.

Recommended.

Kumar, Kohli, & Singh on Decolonizing the Language of the Law

Mritunjay Kumar (Himachal Pradesh National Law University; University of Delhi; University of Delhi - Faculty of Law), Aastha Naresh Kohli (Himachal Pradesh National Law University), & Chanchal Kr Singh (Himachal Pradesh National Law University) have posted Decolonizing the Language of Law (India Legal E Magazine, Forthcoming) on SSRN.  Here is the abstract:

In this paper we have explored the functionality of language vis-a-vis access to justice. In post-colonial India, there is a legitimate demand to create, administer, and interpret the law in local languages, so that it could represent the voices of demos. In pre-modern India, law was found in customs and usages, which was not dependent upon any sign, symbol, and its interpretation. With the reception of common law in India, the form and character of law transformed through positivization, rationalization, and secularization. Its dependence on the complexities of language proved as instrumental in the development of self-interested legal profession, organised on the principle of monetising access to justice. In this context, is it a disproportionate demand to decolonize the legal language? Decolonization of legal language has potentiality to facilitate 'communicative empowerment' among the people and they could realize the essence of human agency as well as autonomy, without which democracy appears to be a 'justified aristocracy'.

Tyler on Interpretive Gaps and General Law

Charles Tyler (George Washington University - Law School) has posted Interpretive Gaps and General Law on SSRN.  Here is the abstract:

Every judge has her own approach to interpreting statutes. But what should a judge do when her approach is inconclusive—when her interpretive methodology fails to resolve the issue she confronts? Despite this question’s manifest significance, caselaw and legal scholarship hardly ever ask it. And when they do, they have not supplied a defensible answer. This Article does so. It argues that, when a judge’s interpretive methodology is inconclusive, she should apply legal rules that American jurisdictions generally have in common—she should apply general law. To determine, for example, whether a state official is entitled to immunity under 42 U.S.C. § 1983, a court should ask whether American courts generally extend immunity to officials accused of tortious conduct in similar circumstances. Likewise, to decide whether a business arrangement constitutes an unlawful “restraint of trade” under the Sherman Act, a judge should ask whether American jurisdictions generally consider that arrangement anticompetitive. And so forth.

The general-law model, as I call it, has two primary rivals. According to one rival, statutes that can’t conclusively be interpreted using customary interpretive techniques constitute delegations of substantially unrestrained lawmaking power to courts. Judges should therefore create new legal rules in a policy-driven manner to decide cases arising under those statutes. According to the other rival, insolubly vague statutes should be understood as incorporating historical common-law rules. Judges should therefore decide cases arising under those statutes by applying common-law rules from the past.

This Article’s proposal is superior to its rivals in several ways. It’s more faithful to the traditional role of courts in developing the common law and to the Constitution’s allocation of institutional responsibilities. It’s more responsive to democratic preferences. It’s likely to generate higher-quality legal rules. And it strikes a better balance between the law’s needs for stability and flexibility. The Article concludes by illustrating some of the model’s implications for several important federal statutes.

Highly recommended.

Moyn & Stern on Thayer and Constitutional Theory

Samuel Moyn (Yale University) & Rephael Stern (NYU Law; Harvard Graduate School of Arts and Sciences) have posted To Save Democracy from Juristocracy: J.B. Thayer and the Tragic Origins of Constitutional Theory on SSRN.  Here is the abstract:

As many Americans once again worry that their democracy is hostage to judicial power, this Article recovers how the country’s first constitutional law professor set out on a mission to stave off the syndrome before it stuck. The first archival reconstruction of how James Bradley Thayer (1831-1902) arrived at his epochmaking theory of judicial deference — which remains the most influential piece of scholarship on American constitutional law in the country’s history — this Article demonstrates that Thayer was determined to preserve the democratic revolutions of the Civil War and Reconstruction and to transform America in the direction of British legislative supremacy. Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the new American democracy, Thayer bet on something new in global history: mass democracy understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated with the early twentieth century: far from simply foreseeing the Supreme Court’s defense of laissez-faire to come, Thayer mobilized in the first instance in response to forgotten manifestations of an American juristocracy after the Civil War. His inspiration, moreover, came from witnessing England’s rapidly-expanding representative democracy in which Parliament — and not the courts — reigned supreme. And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard” — which this Article shows had the same English roots as his democratic faith — has tragically misled reform. An archival genealogy of rational basis review in constitutional law, this Article explains why Thayer called for it but also why his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own.

Highly recommended.  Download it while it's hot!

Bruhl on Supreme Court Litigators and Textualism

Aaron-Andrew P. Bruhl (William & Mary Law School) has posted Supreme Court Litigators in the Age of Textualism on SSRN.  Here is the abstract:

The Supreme Court’s approach to statutory interpretation has moved in a textualist direction in recent decades, but there is little systematic information on how litigators’ briefing practices have changed during this era of textualist ascendancy. This Article examines thirty-five years’ worth of party briefs (over 8000 briefs total), explores the briefs’ use of interpretive tools (including differences across categories of attorneys), and compares the briefs to the Court’s opinions.

This examination yields several valuable findings. Although the briefs show a textualist shift, they differ from the Court’s opinions in a few ways. The magnitude of the textualist shift is smaller in the briefs than in the opinions, as legislative history remains an important force in briefs (especially those of the Solicitor General) despite decades of criticism from judicial textualists and steep declines in the Court’s use of that tool. The briefs instead reflect the rise of textualism through a pragmatic supplementation of legislative history with characteristically textualist tools and a shift in which tools the briefs emphasize. Looking at different types of litigators, although there is some evidence that elites responded more quickly to changes in the Court’s practices, elite and nonelite litigators have today come to resemble each other in their interpretive styles. These findings contribute to our understanding of the Court’s informational environment and reveal a divergence between the Court’s pro-textualist rhetoric and the practices of litigators. This divergence may serve the Court’s informational needs better than a world in which the practicing bar emulated the Court’s text- and dictionary-obsessed opinions.

This is not surprising.  I believe there is a similar phenomenon in constitutional cases.  Highly recommended.  Download it while it's hot!

Grahn-Farley on Human Rights and Climate Justice

Maria Grahn-Farley (University of Gothenburg) has posted The Human Rights Claim in Climate Justice: An Argument for Reintroducing the Principle of Anti-Discrimination and Strengthening the Anti-Domination Principle When Children Go to Court (Journal of Gender, Race and Justice, Vol. 25, 2022) on SSRN.  Here is the abstract:

When children go to Court in Climate Justice Cases they do so without being able to address the racial inequality that often underpins their experienced climate harms. This because the Paris Agreement is the only UN Human Rights treaty that is not founded on the anti-discrimination principle. This is a Critical Race Theory analysis of Child rights in the Climate Justice Regime.

Lavi on Manipulation and Surveillance Capitalism

Michal Lavi (Hebrew University of Jerusalem - Faculty of Law; The Hadar Jabotinsky Center for Interdisciplinary Research of Financial Markets, Crises and Technology (HJC)) has posted Manipulating, Lying, and Engineering the Future (Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 33, No. 2 (2023)) on SSRN.  Here is the abstract:

Decision-making should reflect personal autonomy. Yet, it is not entirely an autonomous process. Influencing individuals’ decision-making is not new. It is and always has been the engine that drives markets, politics, and debates. However, in the digital marketplace of ideas the nature of influence is different in scale, scope, and depth. The asymmetry of information shapes a new model of surveillance capitalism. This model promises profits gained by behavioral information collected from consumers and personal targeting. The Internet of Things, Big Data and Artificial Intelligence open a new dimension for manipulation. In the age of Metaverse that would be mediated through virtual spaces and augmented reality manipulation is expected to get stronger. Such manipulation could be performed by either commercial corporations or governments, though this Article primarily focuses on the former, rather than the latter.

Surveillance capitalism must depend on technology but also on marketing, as commercial entities push their goods and agendas unto their consumers. This new economic order presents benefits in the form of improved services, but it also has negative consequences: it treats individuals as instruments; it may infringe on individuals’ autonomy and future development; and it manipulates consumers to make commercial choices that could potentially harm their own welfare. Moreover, it may also hinder individuals’ free speech and erode some of the privileges enshrined in a democracy.

What can be done to limit the negative consequences of hyper-manipulation in digital markets? Should the law impose limitations on digital influence? If so, how and when? This Article aims to answer these questions in the following manner:

First, this Article demonstrates how companies influence decisions by collecting, analyzing, and manipulating information. Understanding the tools of the new economic order is the first step in developing legal policy that mitigates harm.

Second, this Article analyzes the concept of manipulation. It explains how digital manipulation differs from traditional commercial influences in scope, scale, and depth. Since there are many forms of manipulation, an outright ban on manipulation is not possible, nor is it encouraged since it could undermine the very basis of free markets and even free speech. As a result, this Article proposes a limiting principle on entities identified in literature as “powerful commercial speakers,” focusing on regulating lies and misrepresentations of these entities. This Article outlines disclosure obligations of contextual elements of advertisements and imposes a duty of avoiding false information. In addition to administrative enforcement of commercial lies and misrepresentations, this Article advocates for a new remedy of compensation for autonomy infringement when a powerful speaker lies or disobeys mandated disclosure on products.

Third, this Article proposes a complementary solution for long-term effects of manipulation. This solution does not focus on the manipulation itself, but rather offers limitations on data retention for commercial purposes. Such limitations can mitigate the depth of manipulation and may prevent commercial entities from shackling individuals to their past decisions.

Fourth, this Article addresses possible objections to the proposed solutions, by demonstrating that they are not in conflict with the First Amendment, but rather promote freedom of expression.

Keywords: Manipulation, freedom of expression, First Amendment, Section 230CDA, surveillance capitalism, bots, Artificial intelligence, influence, decision making , privacy, GDPR, disclosure, data retention

Dorfman & Harel on Institutional Pluralism and Entrenchment

Avihay Dorfman (Tel Aviv University - Buchmann Faculty of Law) & Alon Harel (Hebrew University of Jerusalem - Faculty of Law) have posted Institutional Pluralism: Speaking in a Different Voice on SSRN.  Here is the abstract:

Some of the most consequential cases in recent history—Obergeffel v. Hodges and Dobbs v. Jackson Women’s Health Organization, to name such two—assume that there is one right, say, to same-sex marriage or to abortion and that, therefore, the only live question is which institutional agent should be in charge of entrenching it: The Court or state legislatures. On this assumption, a constitutional and a state-statutory right to same-sex marriage or to abortion is one and the same right. The choice between the two reflects a trade-off between several institutional considerations, of which two claim prominence: democratic legitimacy and the prospects of changing the right. A statutory right enjoys democratic legitimacy because it grows out of a rigorous process of will formation and, ultimately, wins the support of the majority. By contrast, a constitutional right (as construed by the Court) is typically harder to change, let alone abolish.

It is this widely held assumption that we challenge in this Essay. We argue that there is not a single good whose institutional provider can be either the legislature or the court (deciding the matter on constitutional grounds). Rather, the choice between these two institutions reflects a choice between two fundamentally different goods: a constitutional right and a statutory right. A constitutional protection of a basic right differs from a statutory norm not because the former is less likely to be changed but because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. The underlying distinction we draw here is between owing you respect (independently of your will) and choosing voluntarily to owe you so. We further extend this argument to discuss its doctrinal implications. One such extension concerns the law of remedies. We defend a new kind of remedy: institutional remedies. Essentially, we argue that a plaintiff might suffer a legally cognizable injury—a dignitarian injury—when the institutional entrenchment of her right, say, in a statute as opposed to the constitution, is inadequate. To make good on this injury, the remedy should declare that the right at issue (say, to marry) is not merely a statutory one, but rather that it has a constitutional status. We further extend this argument to other areas of law, especially the common law tradition of judge-made law.

Highly recommended.

Horton on State Constitutions and Qualifications of Senate and House Candidates

Ben Horton has posted An Issue of First Impression? State Constitutional Law and Judging the Qualifications of Candidates for the House and Senate (Nebraska Law Review, Vol. 102, No. 1, 2023) on SSRN.  Here is the abstract:

Article I, section 5, clause 1, makes each House of Congress the judge of the “Elections, Returns, and Qualifications of its members.” But what does that mean? For historical and jurisdictional reasons, there is a lack of federal precedent on the scope of judicial review of constitutional qualifications of candidates for the House or Senate. However, as federal courts encounter this issue, they should not treat it as an issue of first impression. Instead, they should look to state constitutional law, which has a wealth of precedent on the interaction between the power to run elections and the power of each legislative chamber to judge the returns and qualifications of its members—as virtually all of them have an identical clause to section 5, clause 1.

Contrary to older commentaries collecting precedent, this paper establishes—for the first time, as far as I can ascertain—that a modern consensus has developed in the states over the last fifty to seventy years of “Sequential Jurisdiction”: pre-election adjudication of legislative candidates' qualifications is allowed, but post-election disputes must be resolved by the relevant chamber. There are other options: “Judicial Supremacy,” where courts retain the power at any time to judge the qualifications of legislators, and “Legislative Supremacy,” where the appropriate chamber is the only body who can ever judge qualifications. However, they are both minorities in the American system. The consensus of the states should be persuasive for federal courts facing this issue; both the consensus itself and because the reasoning of representative cases is itself persuasive. And in general, federal courts should look to parallel state constitutional law when faced with an issue of “first impression.”

Cushman on Court Packing

Barry Cushman (Notre Dame Law School) has posted Court-Packing in Context (Journal of Supreme Court History (forthcoming, 2023)) on SSRN.  Here is the abstract:

There is a curious lacuna in the literature on the Court-packing crisis of 1937. The proposal for reform of the federal judiciary that received the most attention and consideration in that year was of course President Franklin D. Roosevelt’s proposal to enlarge the membership of the Supreme Court from nine to fifteen justices. Yet both before and throughout the battle over the President’s “Court-packing plan,” members of Congress introduced a wide variety of alternative measures for addressing their dissatisfaction with recent decisions of the Supreme Court invalidating various state and federal laws designed to relieve economic distress and stimulate economic recovery. Some of these proposals would have taken statutory form, while many others would have amended the Constitution in various respects. In the end, none of these measures was reported out of Committee. Nevertheless, they were the subject of serious discussion in multiple contemporary venues.

Scholarly treatments of the Court-packing episode typically are focused on two related questions: first, what were the Court-packing plan’s prospects for ultimate congressional enactment, and second, to what extent, if any, did the pendency of the Court-packing plan affect the outcomes in the Court’s major constitutional decisions in the spring of 1937? Perhaps as a consequence of this focus, proposed alternatives to Court-packing tend to be treated as something of a sideshow. Discussion of such proposals typically concentrates on the strategic reasons for which Roosevelt rejected them in favor of his own Court-packing plan. Largely overlooked is the rich contemporary legal, newspaper, and periodical literature in which these alternative measures received sustained legal and policy consideration. Similarly, the Senate Judiciary Committee hearings on Roosevelt’s bill, at which such proposals also were the subjects of extensive deliberation, routinely receive rather limited exploration. In some cases, discussion is largely confined to the manner in which the bill’s opponents used the hearings to delay its ultimate consideration. Other treatments offer more fulsome accounts of the arguments made for and against the President’s bill, but pay little if any attention to the substantive arguments witnesses raised concerning alternative proposals.

At a time when proposals for Court reform have resurfaced in public conversation, it may prove illuminating to reconstruct the robust discussion of the topic that took place in the 1930s. That, in any event, is the aim of this article. First, I briefly canvass the arguments concerning Court enlargement offered at the Senate Judiciary Committee hearings on the President’s bill. I then survey the various alternatives to Court expansion introduced by members of Congress, and review the wide array of policy and constitutional arguments made with respect to these proposals. I next examine the debate over the Administration’s claim that a statutory solution to the “Court problem” was necessary because the process of amending the Constitution was too slow and difficult. In the Conclusion I offer some thoughts on the motivations of the Senators and Representatives who introduced such alternative proposals, and the reasons for their ultimate failure of enactment.

Highly recommended.

Solum on Constitutional Theory

Lawrence B. Solum (University of Virginia School of Law) has posted Outcome Reasons and Process Reasons in Normative Constitutional Theory on SSRN.  Here is the abstract:

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of its counterfactual implications for a handful of prior decisions of the Supreme Court. Among the many problems with “outcome reductionism” (exclusive reliance on outcome reasons) is the reality that none of the fundamental and feasible options for normative constitutional theory can guarantee outcomes that that most citizens would find acceptable, much less optimal. Living constitutionalism produces constitutional outcomes that reflect the moral values and political ideology of Supreme Court Justices, but over the long run there is no guarantee that the Justices will do what any individual believes is required by justice. Decades ago, the Justices established a constitutional right to abortion, but recently they reversed course. This kind of inconsistency is inevitable given that the Justices are selected by the President and Congress, institutions that will change their political makeup in unpredictable ways over time.

Outcome reductionism is not a sensible method for normative constitutional theory, but there is a better approach. Outcome reasons can be supplemented by process reasons such as legitimacy, the rule of law, and institutional capacities. The way forward for constitutional theory involves a holistic assessment of both outcome reasons and process reasons via the method of reflective equilibrium. The way forward requires a frank acknowledgement of the consequences of deep and persistent disagreement about fundamental questions concerning justice and the common good. And therefore, the way forward will require an acknowledgement that a legitimate constitutional order will require compromise.

Comments by email welcome!

Balla, Dooling, & Pérez on Empirical Study of the Congressional Review Act

Steven J. Balla (George Washington University - Department of Political Science), Bridget C.E. Dooling (GW Regulatory Studies Center), & Daniel R. Pérez (GWU) have posted Beyond Republicans and the Disapproval of Regulations: A New Empirical Approach to the Congressional Review Act on SSRN.  Here is the abstract:

Under the Congressional Review Act (CRA), legislators deploy expedited procedures to repeal agency regulations. For decades, the conventional wisdom—drawn from a handful of cases in which rules were repealed—has been that the CRA is primarily used by Republicans to nullify regulations issued at the close of Democratic presidential administrations. In this article, we demonstrate that the conventional wisdom provides an incomplete account of the use of the CRA. The centerpiece of our approach is an original data set of all resolutions disapproving of agency regulations introduced over a twenty-six-year period. The analysis of this data set demonstrates that Democrats make regular use of the CRA and that resolutions are consistently pursued outside of presidential transitions. Given these patterns, we argue (contrary to existing accounts) that the CRA is not inherently deregulatory and routinely has utility as an instrument of position taking for legislators of both political parties.

Recommended.

Kuntz on Private Law as an Artifactual Kind

Thilo Kuntz (Heinrich-Heine-University Düsseldorf) has posted Against Essentialism in Private Law Theory: Private Law as an Artifact Kind (Thilo Kuntz and Paul Miller (eds.), Methodology in Private Law Theory, Oxford University Press, Forthcoming) on SSRN.  Here is the abstract:

Private law theory has long been torn between demands of “internalist” theories shearing private law from any kind of consequentialist value and “externalist” renderings entailing a robust push for efficiency-oriented reasoning. The prevailing division of “external” and “internal” reflects essentialist readings of private law, a search for its “true” nature. Alas, or so this chapter argues, there is none. Private law accommodates and rests on a mixed set of norms and values with weights and relevance changing over time, rendering any partisan account ineffective. Efforts to cleanly sort internal and external views and to separate an inside of private law from its outside in terms of moral norms and values must remain futile. Consequently, a private-law theory aspiring to describe and analyze private law as it is practiced has to acknowledge its ambivalent and multipolar nature. In the end, this strengthens the autonomy of law because private law cannot be pocketed by scholars sailing under the flag of a single-value picture of a multi-value world.

Methodologically, this chapter draws on artifact theory. Both legal positivists and adherents of natural law accept that law is an artifact. Bringing artifact theory to bear upon private law thus appears promising, especially since it does not carry a distinct concept of law as baggage. Abstracting from substantive theories about what the law or “just” about what private law is, an artifact approach helps shedding new light on ontological inter-dependencies of materials a positivist considers “existing law” and the insights of so-called externalists concerning the law’s transient character and the importance of outside perspectives.

Highly recommended.

Mertens on AI and Corporate Boards

Floris Mertens (Ghent University - Financial Law Institute) has posted The Use of Artificial Intelligence in Corporate Decision-Making at Board Level: A Preliminary Legal Analysis on SSRN.  Here is the abstract:

Praised popular applications of artificial intelligence (AI) such as ChatGPT are merely a demonstration of AI’s potential in the business world. AI is on the verge of assuming a common role in the management of companies, since its steady emergence as a support tool for the administrative and judgement work of directors and managers. While only a handful of companies worldwide have attempted to appoint a robo-director, the general use of AI in corporate governance has proven to rationalize board decision-making, challenge groupthink and strengthen the independence of directors. Contrastingly, company law frameworks around the world remain rooted in exclusively human decision-making and deny the role of technology in corporate decision-making, resulting in inefficient regulatory strategies with regard to AI systems bestowed with governance powers. As a result, uncertainty exists about the legal permissibility and legal consequences of the implementation of AI in the corporate realm, which could discourage corporations from adopting AI, in spite of the technology being likely to enhance the business judgement of directors.

Therefore, this paper attempts to highlight the growing importance of AI in corporate governance by classifying its gradual levels of autonomy vis-à-vis the board of directors. Then, this paper proceeds to make a preliminary legal analysis of the potential roles of AI in the management of memberless entities, leaderless entities and traditional corporations. The strongest focus of this paper lies on fundamental questions of corporate law pertaining to the delegation of decision rights to AI, the full replacement of human directors by AI, the required human supervision of AI and the attribution of liability for algorithmic failure.

Ho on Climate Disclosure and SEC Regulation

Virginia E. Harper Ho (City University of Hong Kong (CityU) - School of Law; European Corporate Governance Institute) has posted Climate Disclosure Line-Drawing & Securities Regulation (__ U.C. Davis L. Rev. __ (Forthcoming 2023)) on SSRN.  Here is the abstract:

The SEC’s efforts to standardize climate disclosure have revealed deep divides among the public and among corporate and securities law scholars about the proper scope and goals of climate disclosure reform. This controversy comes at a time when investor demand for ESG investment products is rising exponentially and when other regulators worldwide are already moving to standardize how climate risk and other ESG information is reported to investors.

This Article clarifies the line-drawing choices behind mandatory climate risk disclosure, explains the established frameworks for corporate climate reporting that regulators internationally are building upon, and identifies how both have informed the SEC’s proposed climate disclosure rules. This Article makes an important contribution to the debates over ESG disclosure mandates by exploring the boundaries and intersections of climate risk and broader ESG concepts and by considering the potential liability implications of mandatory climate risk disclosure. It concludes by explaining the impact and limits of the SEC’s line-drawing choices and outlining steps that could be taken to better achieve the goals of the proposed reforms and perhaps to move beyond them.

Korzun on Soft Law and International Investment Arbitration

Vera Korzun (University of Akron School of Law) has posted Enforcing Soft Law in International Investment Arbitration (Vanderbilt Journal of Transnational Law, Vol. 56, No. 1, 2023, pp.1-65) on SSRN.  Here is the abstract:

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has long been identified as the single major weakness of the system, investor-state dispute settlement might be a viable option for increasing compliance with and enforcement of international law obligations of the sovereign states.

Gonzalez Rivera on Originalism and Policy-Oriented Jurisprudence

Christian Lee Gonzalez Rivera (St. Thomas University, School of Law) has posted Neither 'Genteel Hoax' Nor 'Slot Machine': Constitutional Interpretation in Policy-Oriented Jurisprudence (Human Flourishing: The End of Law (M. Reisman & R. Pati eds., 2023) (Brill Publishers) (Forthcoming)) on SSRN.  Here is the abstract:

In the United States, most scholarship on constitutional interpretation battles under the clashing banners of Originalism and Living Constitutionalism. The former has ostensibly won the battle, though not yet the war, over interpretation. How either theory impacts human flourishing or other values served by law is often lost in the crossfire. This essay explores the relationship between Originalism and Policy-Oriented Jurisprudence, a human flourishing-centered school of legal thought founded by Myres McDougal and Harold Lasswell. It concludes that they are meaningfully compatible. The article surveys Originalism’s development, highlighting its recent distinction between interpretation and construction, which has undone some historical differences with competing theories. It also surveys Policy-Oriented Jurisprudence’s theory of constitutional interpretation. Acknowledging critical similarities between it and Originalism, the article suggests that the latter could benefit from the former by integrating constitutional construction with some principled, empirical enforcement of the textually embedded concepts of human flourishing and dignity. It also suggests that Originalism pay more attention to legal hermeneutics in international law. A result that could bear the name of “Originalism with a Human Face.”

Recommended.

Kerr on Terms of Service and the Fourth Amendment

Orin S. Kerr (University of California, Berkeley School of Law) has posted Terms of Service and Fourth Amendment Rights on SSRN.  Here is the abstract:

Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: By agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.

This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the “reasonable expectation of privacy” test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.

Important paper, important topic, important scholar!  Highly recommended.  Download it while it's hot!

Carter on Section 1986 and White Supremacist Conspiracies

William M. Carter, Jr. (University of Pittsburgh - School of Law) has posted The Anti-Klan Act in the 21st Century (Harvard Law Review Forum, forthcoming, 2023) on SSRN.  Here is the abstract:

Racial terrorism by organized hate groups and “lone wolf” vigilantes presents a growing societal danger. Increasingly, the planning and recruitment for such plots occurs through online communications channels. The Article sheds new light upon how a little-known federal civil rights statute originally enacted following the Civil War can be applied to the use of online platforms to plan and discuss racially motivated attacks. This Article focuses upon 42 U.S.C. Sections 1985 and 1986, which were originally enacted as part of the Ku Klux Klan Act of 1871. Section 1985 provides a federal civil cause of action against persons who conspire to deprive a person of federally protected civil rights. Section 1986, which is the focus of this Article, provides a cause of action against persons who are aware of Section 1985 conspiracy yet fail to act to prevent it from being carried into action.

This Article first reviews the background, text, and legislative history of Sections 1985 and 1986. The Article next draws upon sociological research illuminating the nature of the contemporary white supremacist movement and the manner in which white supremacists utilize online communications platforms, which make it difficult for outsiders to become aware of and to disrupt conspiracies before they come to fruition. This Article then discusses how Section 1986 can be used as a tool to incentivize insiders and bystanders who are part of online networks where such plots are discussed to report and disrupt them before they manifest, drawing upon the law and psychology literature regarding bystander motivations and behavior. Finally, the Article discusses potential First Amendment compelled speech challenges to Section 1986 suits. This Article concludes that Section 1986 can and should be utilized more widely to combat white supremacist terrorism.

Recommended.

Zhang on China and the Rule of Law

Zhong Zhang (University of Sheffield - School of East Asian Studies) has posted Ruling the Country without Law: The Insoluble Dilemma of Transforming China into a Law-Governed Country (Asian Journal of Comparative Law (2022), 1–24) on SSRN.  Here is the abstract:

Despite more than 40 years’ legislation to build a ‘law-governed country’ and the Communist Party of China (CPC)’s repeated proclaiming to ‘govern the country according to law’, China still lacks legislation concerning a constitutional matter that is central to its governance, ie, the powers of the CPC to rule. No law specifies its powers, and the CPC’s rule is not based on law. Why has such a crucial and apparent loophole not been filled? It is essentially because of the CPC’s insistence on supremacy with unchallengeable authority in the governance of China. Specifying in law the Party’s powers, and how they should be exercised, would subject its rule to law and set a legal limit on its powers, which is irreconcilable with its goals of maintaining supremacy and absolute authority. Hence, an insoluble dilemma can be observed: while the CPC leadership wants China to become a law-governed country to attain lasting order and stability, they have to rule the country extralegally to avoid legal challenges to the supremacy of their rule. This article not only sheds light on this inherent contradiction, but also offers insight into the nature of the CPC’s practice to ‘govern the country according to law’.

Legal Theory Lexicon: Holdings

Introduction

 It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So, here we go!

 Holding, Dicta, and Stare Decisis

 It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents!  Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision?  The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision."  This is as good a place as any to mention that "dictum" is the singular (one unnecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements.

Vertical and Horizontal Stare Decisis

 So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for the doctrine of "precedent." Here are some very basic points:

Vertical stare decisis refers to the power of higher courts to bind lower courts. All courts in the United States are bound by vertical precedent to follow the holdings of decisions by the United States Supreme Court.

Horizontal stare decisis refers to the power of a court to bind itself. The United States Supreme Court does not consider itself bound by its own prior decisions, although it says that it gives them "substantial weight" in its deliberations. The intermediate appellate courts in the federal system are called the United States Courts of Appeal (USCA). When a USCA sits in an ordinary three judge panel, the panel is bound by the prior decisions of the Court. (The USCA is divided into circuits, e.g. the First Circuit, Second Circuit, etc.) However, each Circuit is free to overrule its own prior decisions if it is constituted as an en banc court--that is, the full complement of judges on the Circuit sit on a panel. (The Ninth Circuit is different for reasons I won't explain here.)

A Loss of Faith in the Existence of the Holding

 Law students are generally introduced to holdings very early in their law school careers. The professor may play some Socratic games with early cases, manipulating students into giving broader and narrower formulations of the holdings of the cases. It is quite likely, however, that these games will stop long before the class has a very clear idea of what a holding even is. One of the reasons for this is that the very idea of a holding best makes sense in the context of legal formalism but most law professors (consciously or unconsciously) have adopted some form of legal realism--they no longer believe in holdings in the old-fashioned sense. And when you don't believe that holdings really exist, it hardly makes sense spending a lot of class time trying to master what they are.

This loss of faith extends to some degree to the bar and bench.  But very few judges would own up to believing that there is no distinction between holdings and dicta.  Especially when it comes to vertical stare decisis, most judges seem to accept the idea that they are bound by the holdings of superior courts.  And some judges seem to be committed to the doctrine of stare decisis.

Three Theories of Holdings

In fact, there are several different theories as to what constitutes the holding of a case.  For simplicity's sake, we will focus on three of these. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:

The Ratio Decidendi Theory. The formalist view is that the holding of a case is its ratio decidendi. What in the world does that mean?  The ration decidendi is the rule implied by the reasoning necessary to reach the outcome--on the basis of the issues contested by the parties or raised by the court and the legally salient facts that were before the court. Early in law school, you might get a professor who tries to whittle the holding of a case down to its ration decidendi by asking questions which force the student to see that the rule that she has formulated as the "holding" is broader than the facts of the case. It is very important to understand that identifying the ratio decidendi of a case involves judgments of legal salience. Thus, if the case involves an automobile accident, we know that some facts (the car was red, the accident happened on a Tuesday) are not legally salient and hence are irrelevant to the holding. Other facts (the driver was speeding or the driver was intoxicated) may be legally salient and hence are candidates for inclusion int he holding. Even on the formalist theory of holdings, identification of a holding requires the exercise of practical judgment. If someone tells you that formalists believed that holdings could be identified mechanically, then that person is trying to caricature legal formalism--likely for the purpose of dismissing it.

The Legislative Theory of Holdings.  Another theory of holdings is based on the idea that judge-made law is really a form of legislation.  The holding of the case is like a statute, a legal norm that is enacted via a judicial decision.  On this theory, statements that begin "We hold that" or "The rule is" are the holding of a case, even if the rule that is announced goes far beyond the facts of the case presented.

The Salient Legal Factual Characteristics Theory of Holdings.  One of the common views of the legal realists was that legal decisions are fact-responsive.  Judges decide cases based on their response to the facts of the particular case.  This general view has consequences for the notion of a holding.  Some legal realists maintained that the holding of a case is limited to the the legally salient facts of the case.  Any case with different legally salient factual characteristics would not be controlled by a prior case.  This view means that a single case cannot generate a broad holding; because in any one case, there will be a large number of legally salient facts.  Broad rules could emerge, however, from many cases, as some facts become legally non-salient as the body of cases grows.  The salient facts approach is similar to the ratio decidendi approach, but they are not the same.  The ratio approach focuses on the reasoning, whereas the salient facts approach considers only the facts themselves.

What is the debate between realists and formalists really about?

So there are different theories about holdings, realist and formalist. What is the debate between these three theories about? There are two answers to that question. First, there is a descriptive debate. Formalists may be claiming that when judges use the term "holding" they are, in fact, referring to the ratio decidendi of a case. Realists may be claiming that when judges use the word "holding" they are, in fact, enacted a legal or norm or identifying the facts are legally salient.

But in addition to the descriptive debate, there is a normative controversy. Legal formalists may acknowledge the existence of legislative style holdings, but argue it wrong to give courts the power to legislate in this way. Likewise, legal realists may be willing to concede that some courts still use holding in its "old-fashioned," ratio decidendi sense, but argue that judges should employ legislative style holdings, in order to produce good consequences.  Other realists might reject both of those positions, because they believe that judges ought to be fact responsive on a case-by-case basis.

The normative debate between the advocates of broad (legislative) holdings and narrow (case-bound) holdings may be connected with another big controversy--the debate between particularists and the champions of moral rules (or decision procedures).  Particularists believe that good moral judgments are focused on particular cases--and from that premise, one could argue that good legal decisions should be narrow in scope.  Those who believe in general moral rules (that correspond to moral rights) might argue that for holdings to protect these rights they must be as broad as the rights are.  Consequentialists will have their own arguments for broad (or narrow) holdings--such arguments will depend of course on the consequences of having broad or narrow legal rules.  Another set of normative consideration can be found in the rule-of-law values of publicity, predictability, certainty, and stability of legal rules.

It is always important to sort out the descriptive and prescriptive strands in this sort of debate.  It is easy to slide from descriptive arguments to normative ones, and vice versa.

Judge Posner's Radical Critique of Stare Decisis

Judge Richard Posner suggests a radical reworking of the distinction between holdings and dicta that seems to imply that he would do away with the idea of binding stare decisis altogether.  Here is what he wrote in United States v. Crawley, 837 F.2d 291 (7th Cir. 1988):

What is at stake in distinguishing holding from dictum is that a dictum is not authoritative. It is the part of an opinion that a later court, even if it is an inferior court, is free to reject. So instead of asking what the word "dictum" means we can ask what reasons there are against a court's giving weight to a passage found in a previous opinion. There are many. One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion--it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered. Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers, and indeed that it may not have been part of the decision that resolved the case or controversy on which the court's jurisdiction depended (if a federal court).

Posner's position is not completely clear, but the basic idea is that we ought to be assessing judicial statements of the law for their epistemic value.  Well reasoned and carefully considered statements should be given substantial weight, but if a statement was not the result of careful deliberation, then it ought to be set aside.  As is frequently the case with Judge Posner, his position is thought provoking and idiosyncratic.  If taken to its logical conclusion, Posner's view seems to imply that we should abolish the idea of a "holding" altoghether.

Conclusion

The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least three holdings when you read a case. First, look for the true ratio decidendi, the rule that is implied by the reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court.  Finally, identify all of the legally salient factual characteristics and then construct a rule that limits the holding of the case to those facts.

And then you might compare the three holdings that emerge from these two injuries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?"

Related Lexicon Entries

• Legal Theory Lexicon 017: The Rule of Law
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 054: Standards of Review
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography

• Michael Abramowicz & Maxwell L. Stearns, Defining Dicta, " 57 Stan. L. Rev. 953 (2005).
• Charles W. Collier, Precedent and Legal Authority: A Critical History, 1988 Wis. L. Rev. 771 (1988).
• Frank Cross, Precedent in English Law (Clarendon Law Series) (4th ed. 1991).
• Neil Duxbury, The Nature and Authority of Precedent (2008).
• Michael J. Gerhardt, The Power of Precedent (2011).
• Arthur L. Goodheart, Determining the Ratio Decidendi of a Case, 40 Yale L.J. 161 (1930).
• Herman Oliphant, A Return to Stare Decisis, 14 A.B.A. J. 71 (1927).
• Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. L. 155 (2006).

(This entry was last revised on January 29, 2023.)

Legal Theory Bookworm: "Bias: A Philosophical Study" by Kelly

The Legal Theory Bookworm recommends Bias: A Philosophical Study by Thomas Kelly.  Here is a description:

Bias seems to be everywhere. Biased media outlets decisively influence the political opinions and votes of millions of people. Discriminatory policies favor some racial groups over others. We tend to judge ourselves more favorably than our peers, and more favorably than the evidence warrants. But what is it, exactly, for a person or thing to be biased?

In Bias: A Philosophical Study, Thomas Kelly explores a number of foundational questions about the nature of bias and our practices of attributing it. He develops a general framework for thinking about bias, the norm theoretic account, and shows how that framework illuminates much that we say and think about bias in both everyday life and the sciences. He argues provocatively that both morality and rationality sometimes require us to be biased; that groups of people can be biased even if none of their members are; that we are often rationally required to believe that those who disagree with us are biased, even if we know absolutely nothing about why they believe as they do or about their psychologies; and that whether someone counts as biased is often a relative matter. He defends the possibility of what he calls 'biased knowing' and argues that the phenomenon has significant implications for both philosophical methodology and scepticism.

A central aim of the book is to expand the range of issues that have thus far been considered under the heading 'the philosophy of bias' by putting new theoretical questions on the table and proposing bold answers that can serve as starting points for future inquiry.

Downloads of the Week: (1) "Originalism after Dobbs, Bruen, and Kennedy" by Barnett & Solum, (2) "The Incompatibility of Substantive Canons and Textualism" by Eidelson & Stephenson, & (3) "The Puzzle of Procedural Originalism" by Sohoni

There are multiple DOTWs this week.  First up is:

Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition by Randy E. Barnett & Lawrence B. Solum (Here is the abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

This is a systematic investigation of the role of history and tradition in Dobbs, Bruen, and Kennedy.  As always, comments are welcome.  If might be permitted to say so myself, download it while it's hot!

Next:

The Incompatibility of Substantive Canons and Textualism by Benjamin Eidelson & Matthew Stephenson have posted on SSRN.  Here is the abstract:

A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious - and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve.

With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be.

Importantly and sophisticated.  Highly recommended.  Download it while it's hot!

And:

The Puzzle of Procedural Originalism by Mila Sohoni.  Here is the abstract:

On a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and obviously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. Reorienting extant procedural doctrine around the polestar of original meaning could have dramatic effects: for example, it could oust corporations and D.C. citizens from suing or being sued in diversity while throwing into disarray the doctrines that govern the vast set of suits in which state and federal courts exercise personal jurisdiction over out-of-state defendants. In these and other respects, an originalist turn in procedure may have momentous consequences for our law.

This Article examines this emergent phenomenon of “procedural originalism”—its past, its present, and its prospects. It describes the intellectual backstory of originalism’s engagement with civil procedure and remedies and the fresh uptick of attention to the originalist underpinnings of various procedural and remedial doctrines. It surveys the discrepancies between original public meaning and bread-and-butter staples of civil procedural doctrine while showing how civil procedural doctrine has drawn its substance from considerations beyond mere original meaning. And it sketches the challenging questions that procedural originalism poses for some of the many theories of originalism.

Above all, however, this Article explores what originalism’s late arrival to the domain of civil procedure reveals about the construction of the originalist agenda. A prominent charge levied against originalism is the claim that originalism is not an apolitical legal interpretive methodology but rather a tool for selectively inscribing into constitutional law the political goals of the conservative legal movement. What is striking about civil procedure is that an originalist remodeling of procedural law would call for some outcomes that are nonaligned with, or even sharply adverse to, the aims of key conservative movement constituencies. The future course of procedural originalism therefore promises to throw light on the contours of originalism’s constitutional politics and, ultimately, will offer a new test of the charge that originalism is a proxy for politics rather than a theory of law.

Highly recommended.  Download it while it's hot!

Geisel on Bruen and Originalism

A.W. Geisel (University of Pennsylvania Carey Law School) has posted Bruen is Originalish on SSRN.  Here is the abstract:

In the wake of New York State Rifle & Pistol Assn., Inc. v. Bruen, commentators have divided over one seemingly simple question: is the case Originalist? This Essay presents a reading of Bruen that splits Justice Thomas’s “text-and-history” test into two distinct outputs: a statement about constitutional meaning, and a test for future litigants. The former is Originalist, but the latter is not, which leaves Bruen somewhere between Originalism and non-Originalism. Put simply, the case is ‘Originalish.’

By closely examining the language of Justice Thomas’s majority opinion and situating the text-and-history test within his larger constitutional-interpretive project, this Essay charts an inroad toward a sensible reading of the Supreme Court’s current Second Amendment doctrine, one which may prove useful to litigants, judges, and scholars alike.

This is an interesting student paper.  For a somewhat different take from the perspective of Public Meaning Originalism, see Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition.

Boone on Counterproductive Laws and Rational Basis Review

Meghan Boone (Wake Forest University School of Law) has posted Perverse & Irrational (Harvard Law & Policy Review, Vol. 16, 2022) on SSRN.  Here is the abstract:

In our system of representative democracy, legislatures are given a great deal of latitude to select and pass laws that they deem to be in the public interest. Assuming that no suspect class or fundamental right is involved, the Constitution has been interpreted to only require legislative action to satisfy rational basis review—a highly deferential standard that requires only that a legitimate purpose exist and the means adopted to achieve that purpose are rationally related to that purpose. Under rational basis review, legislatures can and do enact laws that are significantly over- or underinclusive to the identified problem. They can enact laws that do not even accomplish their intended purpose in most instances. They can even enact laws which are unsupported by any evidence, much less high-quality evidence. And yet . . . courts insist that rational basis review still means something. That it is something other than a blank check for legislatures to do as they will.

This Article explores one example of the outer bounds of rationality—demonstrated perversity. That is, a law that clearly contravenes the overarching legislative intent because the law is solely or primarily responsible for producing the opposite result of that intent. Although often unnamed as such, perversity presents itself across the legislative landscape, from mundane local ordinances to sweeping federal legislation. And while not explicitly recognized as a basis for finding a law unconstitutional, Supreme Court precedent clearly hints at the possibility that demonstrated perversity could be a basis for invalidating laws.

By defining perversity, identifying when and how it occurs, and exploring how it might be used to challenge the constitutionality of various government actions, this Article aims to illuminate an undertheorized corner of the already robust literature on rational basis review. It argues that current rational basis review precedent already employs a type of perversity analysis, although courts fail to explicitly acknowledge it as such. Moreover, it argues that modern changes in scientific and empirical methodologies and the explosion of the information economy demonstrate the need for this type of analysis; without it, rational basis review is meaningless. Ultimately, the Article concludes that while rational basis scrutiny gives legislatures wide latitude, courts must set a constitutional limit by striking down statutes which cause outcomes clearly counterproductive to legislative goals.

Highly recommended.

Pojanowski on Private Law Theory and Kantian Formalism

Jeffrey A. Pojanowski (Notre Dame Law School) has posted Private Law Formalism and Jurisprudential Method (Forthcoming in Thilo Kuntz and Paul B. Miller, eds., Methodology in Private Law Theory (Oxford University Press)) on SSRN.  Here is the abstract:

This paper, a chapter in a forthcoming volume on methodology and private law theory, explores the connections between Kantian private law formalism and methodology debates in general jurisprudence.

Highly recommended.

Alschuler on Bruen

Albert W. Alschuler (University of Chicago Law School) has posted Twilight-Zone Originalism: The Supreme Court's Peculiar Reasoning in New York State Pistol & Rifle Association v. Bruen on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” After reviewing dozens of firearms restrictions approved by Parliament and American legislatures between 1285 and 1900, the Court concluded that few of them limited carrying weapons as much as a challenged New York statute. It therefore held this statute invalid.

Part I of this Article criticizes the Bruen standard, which (1) identifies no prevailing understanding of the Second Amendment’s text at the time of its enactment; (2) turns on blips of historical data rather than any coherent or comprehensible principle; (3) makes constitutional adjudication a scavenger hunt; (4) treats legislative inaction or failure to regulate a practice as evidence that this practice was originally regarded as a constitutional right; (5) would, if extended beyond the Second Amendment, validate every law and governmental practice that existed when the Constitution and Bill of Rights were ratified; (6) departs radically from the original understanding of the right to bear arms by reversing the presumption of constitutionality, abandoning traditional efforts to reconcile this right with the “police power” of state governments, and repudiating the interest-balancing that characterized decisions concerning this right from the early 19th century through the start of the 21st; (7) cannot adequately adapt the Second Amendment to changed circumstances; (8) contradicts the Court’s earlier assurances (and the assurances of three concurring justices in Bruen) that the constitutionality of prohibiting firearms possession by felons and the mentally ill is not in doubt; and (9) appears to be more the product of some justices’ determination to treat the right to bear arms as a “first-class right” than of these justices’ purported originalism.

Part II examines the decisions of federal courts applying Bruen in the six months after this decision. They include: (1) decisions concerning how many (and what kinds of) pre-20th analogues are necessary to render a challenged firearms regulation constitutional; (2) decisions illustrating the burden Bruen casts on litigants charged with finding and analyzing antique state and local firearms regulations; (3) decisions recognizing a Second Amendment right to carry firearms in places of worship; (4) a decision that raises questions about the federal regulations that forbid carrying firearms on airliners; (5) a decision in which a judge declared, “Certainly, the usefulness of serial numbers in solving gun crimes makes [the federal statute prohibiting the possession of firearms with altered or obliterated serial numbers] desirable for our society”—and then held this statute unconstitutional; (6) a decision striking down a federal statute forbidding firearm possession by a person who’s prohibited by court order from stalking or threatening an intimate partner because, although the “historical tradition” of disregarding domestic violence is “likely unthinkable today,” Bruen makes this tradition decisive; and (7) a decision by a Third Circuit panel illustrating the lengths to which federal courts now go to uphold the federal felon-in-possession statute—a statute that appears to fail the Bruen test.

A conclusion focuses on one last firearms issue—whether requiring applicants for firearms permits to complete and pay for 18 hours of firearms training violates the Second Amendment. In discussing this issue, it contrasts the Bruen standard with more traditional approaches to constitutional adjudication and defends the legitimacy of interest balancing.

Recommended.  For a different take from an originalist perspective, see Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition.

Moyn on Animals, Slaves, and Domination

Samuel Moyn (Yale University) has posted Animals and Slaves: A Legal Analogy between Domination and Reform (Anne Peters et al., eds., Oxford Handbook of Global Animal Law (Oxford University Press), Forthcoming) on SSRN.  Here is the abstract:

The analogy between animals and slaves is rooted deep in the Western tradition. This chapter argues that the parallel between animals and slaves has been static neither in its content nor its consequences to date. Originally it revolved around domesticated non-human agricultural labouring animals and their enslaved human counterparts. Over millennia, not only did it evolve away from the imaginative centrality of agriculture and therefore domesticated service (human or non-human). Its ethical and political implications underwent a grand reversal in modern times. A little more than two hundred years ago, the analogy began to allow for a common if dissident project of reducing physical cruelty, and eventually for an abolitionist politics that aimed for a more thoroughgoing emancipation from hierarchy.

Highly recommended.

Thumfart on Cybersecurity and Legitimacy

Johannes Thumfart (Vrije Universiteit Brussel (VUB) - LSTS, Interdisciplinary Research Group on Law Science Technology & Society) has posted The (Il)Legitimacy Of Cybersecurity. An Application of Just Securitization Theory to Cybersecurity Based On the Principle of Subsidiarity (Applied Cybersecurity & Internet Governance 1, no. 1 (17 November 2022): 97–120) on SSRN.  Here is the abstract:

The application of securitization theory to cybersecurity is useful since it subjects the emotive rhetoric of threat construction to critical scrutiny. Floyd’s just securitization theory (JST) constitutes a mixture of securitization theory and just war theory. Unlike traditional securitization theory, it also addresses the normative question of when securitization is legitimate. In this contribution, I critically apply Floyd’s JST to cybersecurity and develop my own version of JST based on subsidiarity. Floyd’s JST follows a minimalistic and subsidiary approach by emphasizing that securitization is only legitimate if it has a reasonable chance of success in averting threats to the satisfaction of basic human needs. From this restrictive perspective, cyber-securitization is only legitimate if it serves to protect critical infrastructure. Whilst Floyd’s JST focuses exclusively on permissibility and needs instead of rights, I argue that there are cases in which states’ compliance with human rights obligations requires the guarantee of cybersecurity, most importantly regarding the human right to privacy. My version of JST is also based on the principle of subsidiarity, in the sense that securitization should always include stakeholders directly affected by a threat. To strengthen this kind of subsidiarity, focused on the private sector, I argue for the legitimacy of private active self-defence in cyberspace and emphasize the importance of a ‘whole-of-society approach’ involving digital literacy and everyday security practices. Moreover, I argue that far-reaching securitization on the nation-state-level should be avoided, particularly the hyper-securitization of the digital public sphere, following unclear notions of ‘digital sovereignty’.

Kulshreshtha on Consent and Rape in India

Nikunj Kulshreshtha (O P Jindal Global University- Jindal Global Law School) has posted A Critical Analysis of the Standard of Consent in Rape Law in India (Onati Socio-legal Series (ISSN 2079-5971)) on SSRN.  Here is the abstract:

This article critically analyses the standard of consent in rape law in India by engaging in a doctrinal analysis of the current jurisprudence. It also analyses various extraneous circumstances influencing the determination of consent in Indian rape law. The article will then assess the status of consent jurisprudence and related issues in the English and Canadian jurisdictions for a comparative assessment. Thereafter, it will critically assess the arguments in favour of an affirmative standard of consent before concluding with possible solutions for better interpretation of the law in determining consent by courts during rape trials in India.

Ohanesian on Deference and the NLRB

Nicholas Ohanesian (Social Security Administration) has posted Errors and Omissions: Applying Lessons from History to Decide the Future of Administrative Deference with Respect to the National Labor Relations Board on SSRN.  Here is the abstract:

A majority of the current members of the Supreme Court have expressed an interest in altering or doing away with entirely deference to administrative agencies. Prior to upending the existing regime, it is useful to understand the what the world would look like without administrative deference and at the same time serve as a cautionary tale about how courts will behave when unrestrained. Labor law and the judicial treatment of labor unions provides a particularly vivid illustration in this regard. Much of the scholarship up to this point has focused on the merits of deference, its role in the separation of powers, the proper allocation of power between the three branches of government, and the practical effects of deference on administrative decision-making. This article will show how the history of the Courts and Congress with respect to labor unions should support continuing administrative deference to the National Labor Relations Board.

In the area of labor law the Supreme Court has a long history of engaging in statutory interpretation free of any constraints with objective evidence of the Court getting it wrong. This objective evidence comes in the form of statutory responses to Supreme Court interpretations of various statutes. Part one of this essay will trace the history of statutory interpretation of cases involving labor unions and the various Congressional responses. Part two will look at how Congress applied these lessons dealing with labor unions in light of Supreme Court decisions. Part three show how these lessons should apply when evaluating administrative deference as applied to the National Labor Relations Board (NLRB).

Leib on Fiduciary Constitutionalism

Ethan J. Leib (Fordham University School of Law) has posted Three Modalities of (Originalist) Fiduciary Constitutionalism (63 American Journal of Legal History (2023 Forthcoming)) on SSRN.  Here is the abstract:

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.

Highly recommended.