Legal Theory Blog

Legal Theory Bookworm: "Why Does Inequality Matter?" by Scanlon

The Legal Theory Bookworm recommends Why Does Inequality Matter? by  T. M. Scanlon.  Here is a description: 

Inequality is widely regarded as morally objectionable: T. M. Scanlon investigates why it matters to us. Demands for greater equality can seem puzzling, because it can be unclear what reason people have for objecting to the difference between what they have and what others have, as opposed simply to wanting to be better off. This book examines six such reasons. Inequality can be objectionable because it arises from a failure of some agent to give equal concern to the interests of different parties to whom it is obligated to provide some good. It can be objectionable because it involves or gives rise to objectionable inequalities in status. It can be objectionable because it gives the rich unacceptable forms of control over the lives of those who have less. It can be objectionable because it interferes with the procedural fairness of economic institutions, or because it deprives some people of substantive opportunity to take part in those institutions. Inequality can be objectionable because it interferes with the fairness of political institutions. Finally, inequality in wealth and income can be objectionable because it is unfair: the institutional mechanisms that produce it cannot be justified in the relevant way. Scanlon's aims is to provide a moral anatomy of these six reasons, and the ideas of equality that they involve. He also examines objections to the pursuit of equality on the ground that it involves objectionable interference with individual liberty, and argues that ideas of desert do not provide a basis either for justifying significant economic inequality or for objecting to it.

And from the reviews:

"[A] densely packed and succinctly written book which is analytical political philosophy at its best: clear, rigorous, and admirably sharp. It's also pitched at just the right level of abstraction; no one who reads it could fail to appreciate how Scanlon is troubled by the sheer extent of inequality in the United States, and there are suggestions of policy positions, for example dispersal of media ownership. ... anyone remotely interested in egalitarianism will find much to reward them in this outstanding book." -- Jonathan Seglow, Ethical Theory and Moral Practice

One of the most important moral philosophers of our era.  A major statement.  Highly recommended.

Download of the Week: "On Iris Murdoch and legal decision-making" by van Domselaar

The Download of the Week is All judges on the couch? On Iris Murdoch and legal decision-making by Iris van Domselaar.  Here is the abstract:

Drawing upon our everyday experiences, there is nothing radical about thinking that moral life is largely taken up by our efforts to obtain a clear vision of the situations we find ourselves in and to respond accordingly. However, despite having experiential plausibility, vision-based approaches to morality are quite rare within moral philosophy.

The moral philosophy of Iris Murdoch, in which ‘vision’ commands center stage, is a notable exception. However, as Murdoch herself was largely evasive on matters of public morality, thus far the potential relevance of Murdoch’s moral philosophy for the law - a public institution par excellence - has hardly been addressed. In this chapter, the author investigates what a Murdochian approach to legal decision-making might amount to and identifies some crucial issues that such an approach must further explore.

Highly recommended.

Birk on a Common-Law Interpretation of the Article III Exceptions Clause

Daniel D. Birk (Chicago-Kent College of Law) has posted The Common-Law Exceptions Clause: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent (Villanova Law Review, Vol. 63, No. 2, 2018) on SSRN.  Here is the abstract:

Jurists and scholars widely acknowledge that the institutions, practices, and decisions of the British common-law court system at the time of the framing can provide an important guide in interpreting and applying the provisions of Article III of the U.S. Constitution. It is somewhat surprising, then, that students of the federal courts have so rarely turned to the common law in attempting to understand Article III’s most controversial and widely debated question: Whether Congress can use its power to make “exceptions” to the Supreme Court’s appellate jurisdiction to prevent the Supreme Court from deciding cases presenting particular questions of constitutional law.

This Article fills that gap in the Exceptions Clause literature by conducting a detailed examination of pre-1789 British cases and statutes related to parliamentary exceptions to the jurisdiction of the supreme courts of England and Scotland. By ignoring this precedent, participants in the debate over the Exceptions Clause have been missing an important piece of the puzzle. Strikingly, the evidence refutes the conventional view that Congress’s exceptions power is unlimited in scope and confirms textual arguments that a defining attribute of a “supreme” court is its ability to supervise the decisions of courts inferior to it. The evidence shows that, even where Parliament made an exception to the appellate jurisdiction of a supreme court, it was well-understood that the exception would never entirely divest that court of the power to correct major interpretive errors and denials of due process and to ensure that inferior courts remain within the bounds of the law. By resituating the Exceptions Clause within the common-law heritage familiar to the Framers of the Constitution, this Article offers an interpretation of the Clause that makes sense of and respects the constitutional text while assuaging fears that Congress could use its exceptions power to entirely preclude Supreme Court review of the decisions of lower federal and state courts.

Interesting and recommended.

Bell on Special International Zones

Tom W. Bell (Chapman University, The Dale E. Fowler School of Law) has posted Special International Zones in Practice and Theory (Chapman Law Review, Vol. 21, 2018) on SSRN.  Here is the abstract:

Summarizing the examples to follow, this article defines as an SIZ: An area that its host nation state places outside of its territory for the purpose of some local laws, leaving other such laws and applicable international obligations in force.

Special international zones already exist in great number and variety. They continue to spread, grow, and adapt. What does the future hold for SIZs? Perhaps more of the same-but worse. A country could take France's example too far, for instance, creating special border areas and floating personal temporary microzones that together have the practical effect of keeping entire regions and populations outside the country's national territory in terms of legal rights and privileges, while putting them firmly inside the territory in terms of police powers.

Or SIZs might evolve in a more benign direction, creating refugee cities for homeless populations, "deep blue" zones for seasteads, or special international residency and work ("SIRW") zones for digital nomads. All these and other options become possible once the general concept of a SIZ-a designated area outside the reach of some local laws but still subject to international obligations-has been defined, illustrated, and explained. If that appeals, read on.

Recommended.

van Domselaar on Iris Murdoch & Legal Decision-Making

Iris van Domselaar (Amsterdam Law School, University of Amsterdam) has posted All judges on the couch? On Iris Murdoch and legal decision-making on SSRN.  Here is the abstract:

Drawing upon our everyday experiences, there is nothing radical about thinking that moral life is largely taken up by our efforts to obtain a clear vision of the situations we find ourselves in and to respond accordingly. However, despite having experiential plausibility, vision-based approaches to morality are quite rare within moral philosophy.

The moral philosophy of Iris Murdoch, in which ‘vision’ commands center stage, is a notable exception. However, as Murdoch herself was largely evasive on matters of public morality, thus far the potential relevance of Murdoch’s moral philosophy for the law - a public institution par excellence - has hardly been addressed. In this chapter, the author investigates what a Murdochian approach to legal decision-making might amount to and identifies some crucial issues that such an approach must further explore.

Highly recommended.

Klatt on Jellinek’s Theory of Law

Matthias Klatt (University of Graz - Faculty of Law) has posted Law As Fact and Norm: Georg Jellinek and the Dual Nature of Law  (Forthcoming, The Normative Force of the Factual, edited by Christoph Bezemek, Nicoletta Ladavac and Frederick Schauer (Springer 2018)) on SSRN.  Here is the abstract:

The history of legal scholarship is full of one-sided views that undervalue either the factual or the normative dimension of the law. To arrive at a well-balanced account of law’s relation to both fact and norm is a difficult enterprise. The present article engages in this enterprise by dis-cussing two elements of Georg Jellinek’s theory of law. First, it discusses his famous thesis of the ‘normative power of the factual, in the light of Kelsen’s critique and the problem of an Is-Ought-Fallacy. This article argues that we should better label this thesis the ‘regarded-as-normative power of the factual’. Second, the article focuses on Jellinek’s two-sided theory of the state and its modern variant, the dual nature thesis. It identifies the bridge problem as the main challenge to these accounts, and answers the bridge problem by pointing to the dual nature of legal argumentation and to a dynamic theory of legal discourse.

Magallanes on Legal Personhood for Rivers

Catherine J. Iorns Magallanes (Victoria University of Wellington - Faculty of Law) has posted From Rights to Responsibilities using Legal Personhood and Guardianship for Rivers (in ResponsAbility: Law and Governance for Living Well with the Earth, B Martin, L Te Aho, M Humphries-Kil (eds) (Routledge, London & New York, 2019), pp 216-239) on SSRN.  Here is the abstract:

This chapter surveys a range of examples whereby rivers have been given legal personality or similar rights, seemingly in an effort to uphold human responsibility to better protect them from degradation. The examples are first drawn from the United States of America, where nature has been given a range of rights, in order to illustrate key rights of nature arguments. Then four examples of rivers in different countries are addressed: the Vilcabamba River in Ecuador, the Whanganui River in Aotearoa New Zealand, the Ganges River in India, and the Atrato River in Columbia. Two of these examples emphasise the rights of the rivers and two emphasise duties and responsibilities, while three of them create a separate legal personality for the river. The tools used to protect each of these rivers are slightly different from each other and they illustrate interesting comparisons and likely lessons, even though they are still very new.

A key lesson from this difference is that rights – including rights for nature – are useful tools, but also, that collective responsibility may be even more useful. All of the examples in this paper can help our societies and their legal systems evolve to protect nature more effectively and engender a greater appreciation of its importance. But explicit frameworks and tools of collective responsibility may provide a clearer path to the paradigm shift that is necessary to better respect humans’ role within nature and ecosystems within which we live. Any framework or tool chosen needs to support a paradigm of collective responsibility and should be carefully designed and worded so as not to obscure or distract from that.

Mulvaney on Property-as-Society

Timothy M. Mulvaney (Texas A&M University School of Law) has posted Property-as-Society (Wisconsin Law Review, Vol. 2019, Forthcoming) on SSRN.  Here is the abstract:

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception of property-as-society presents a more useful structure for assessing whether an allocative choice is fair and just absent compensation than the conceptions of property-as-liberty and property-as-investment. Second, on doctrinal grounds, it suggests that the property-as-liberty conception has fallen from grace in takings jurisprudence since its peak in Lucas v. South Carolina Coastal Council in 1992; moreover, while the property-as-investment understanding remains of some force, the property-as-society conception has ascended to a position of jurisprudential prominence, as most recently evidenced in both the majority and the dissenting opinions in the 2017 matter of Murr v. Wisconsin.

Shineman on Racial Animus & Felon Voting Rights

Victoria Shineman (University of Pittsburgh) has posted Racial Animus Is Decreasing Support for the Voting Rights of Citizens with Felony Convictions on SSRN.  Here is the abstract:

Felon disenfranchisement laws disproportionately affect poor and minority populations. Using data from an original module in the 2013 Congressional Cooperative Election Study, this study demonstrates that negative racial attitudes are decreasing support for the voting rights of citizens with felony convictions. The results find that Non-Hispanic Whites with greater racial animus are less supportive of allowing citizens with felony convictions to vote, despite the ostensibly race-neutral nature of the policy. The effects of racial attitudes on public opinion are strongest when the citizen was convicted of stereotypical Black crimes, compared to stereotypical White crimes. Racial animus also make individuals less likely to be persuaded by arguments in favor of voting rights, and more susceptible to arguments against voting rights – particularly when the arguments are more directly linked to race. The magnitude of the impact of racial attitudes on support for voting rights is notable inasmuch as it is often the most important antecedent variable in the model.

Berger on Humility as a Judicial Virtue

Benjamin L. Berger (York University - Osgoode Hall Law School) has posted What Humility Isn’t: Responsibility and the Judicial Role (“What Humility Isn’t: Responsibility and the Judicial Role” in Daniel Jutras and Marcus Moore, eds., The Chief: Essays in Honor of Chief Justice Beverley McLachlin (Forthcoming)) on SSRN.  Here is the abstract:

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice jurisprudence that reflect elements of this understanding of the virtue of judicial humility, including careful attention to one’s responsibilities in relationship to vulnerability, history, and the role of others. Not an exercise in hagiography, the chapter also identifies one aspect of the McLachlin Court’s criminal justice jurisprudence — police powers — that fails to express this virtue, so understood. Ultimately, however, the piece argues that Chief Justice McLachlin’s work in the field of criminal law offers an invaluable ethical resource for thinking more deeply about the shape and demands of humility as an adjudicative virtue.

Fenster on Transparency & Informational Feeds

Mark Fenster (University of Florida - Levin College of Law) has posted Feed: State Transparency Amidst Informational Surplus on SSRN.  Here is the abstract:

An email arrives, promising inside information about the perfidious forces that secretly rule the nation. A Twitter feed from a prominent insider at an establishment think-tank announces the latest disclosure about the president’s secret role in the Russian conspiracy to manipulate the election that elevated him with the blast of toy cannon. Meanwhile, the President’s tweets serve to annoy, distract, humor, or comfort those who see them, and they above all announce some truth about his presidency.

Debates about government transparency presume that the state controls an informational spigot, which can be made to allow information to flow or to stop its movement. All sides agree that information is a thing that can be made to move, indeed that is defined by its movement, and that its movement down a pipeline to the public is unidirectional and inevitable. This metaphor of informational flow has long been central to both the majority and dissent in canonical Supreme Court information access decisions.

It may once have been accurate, but it is no longer. Instead, this essay posits and illustrates that the feed captures, as a metaphor, the current means by which the public comes to think about and know the state. The universe of social media feeds constitute non-directional, multi-vocal, seemingly random, and occasionally autonomous ways by which information moves. Laws and theories that attempt to restore the metaphorical ideal of an ordered flow will only disappoint those who bank on their ability to free or control government information.

Highly recommended.

Westen on Unknowing Self-Defense

Peter K. Westen (University of Michigan Law School) has posted Unwitting Justification (San Diego Law Review, Vol. 55, No. 2, 2018) on SSRN.  Here is the abstract:

An assailant is on the verge of shooting a hated rival, Jones, when Jones, oblivious to the attack, decides in that instant to kill his assailant, thereby becoming what commentators call an “unknowing self-defender” or “unwittingly justified actor.” Under the terms of the Model Penal Code Jones is at the very least guilty of an impossibility attempt because he satisfies all the elements of attempted murder under the Code. The question that has divided commentators since George Fletcher and Paul Robinson’s debate it in the 1970s is whether Jones is also guilty of the completed crime of murder and whether the latter is the more appropriate charge. Anthony Duff, for one, has said that the debate seems “irresoluble.” The debate is, indeed, irresoluble but only so long as commentators ignore the issue on which the answer necessarily turns, namely, why resulting harms matter in criminal law -- that is, why criminal law distinguishes in name and penalty between impossibility attempts and complete crimes. Commentators differ regarding why resulting harm matters. I examine what I regard as the most promising account, one that originates with Plato. Based on Plato’s account, I argue that most, of not all, acts of unwitting justification should be punished as impossibility attempts rather than as completed crimes.

Highly recommended.

Shilo on AI, the Laws of War, and International Criminal Law

Liron Shilo (Georgetown University, Law Center; Information Society Project (ISP), Yale Law School) has posted When Turing Met Grotius AI, Indeterminism, and Responsibility on SSRN.  Here is the abstract:

The exponential advancement of artificial intelligence and robotics have long intrigued militaries around the world; to the extent, they are developing and deploying lethal machines that would identify, decide and attack enemies and enemy objects, without human intervention. Although these technologies are not fully matured, legal scholars, policymakers, and ethicists already wrongfully presume them to be mere weapons. This article argues that such categorization will deem most actions executed by such autonomous entities (AA entities) neither internationally attributable to states nor criminally attributable to their programmers or military commanders, yielding impunity for the gravest of crimes against civilian populations. This article draws from artificial intelligence theories, the Laws of Armed Conflict and International Criminal Law to refute this assumption and argues a new category of entities should be recognized in order to sustain responsibility and accountability to states and individuals.

Scholars are offering different standards and degrees of human control over AA entities, which should make their actions attributable to states and individuals; this article suggests these standards ignore peoples’ over-reliance on computers, and could eventually throw commanders and software programmers under the bus. The ongoing debate tries to fit a square peg into a round hole, asking a cutting-edge technology to be governed by rules created in the 1940s and 70s. Facts and common contradictions fleshed out by this article should spark a new, informed, and progressive debate, which should eventually bring to a fitting and progressive solution for these up-and-coming technologies.

Deatherage on Regulation Technology

Philip Deatherage (Vermont Law School - Vermont Journal of Environmental Law) has posted Environmental Compliance Through Regulation Technology on SSRN.  Here is the abstract:

RegTech or regulation technology was born out of a need for compliance in the FinTech Industry, and while some may see RegTech as a branch of FinTech, many have recognized it now stands on its own as a separate field, that can be applied to many different areas of compliance with regulations, using technology.

I explore the possibilities of RegTech as a stand-alone field, and then explore how RegTech and EnviroTech can intersect; applying it to environmental compliance, permitting, and the EPA. Finally, I am proposing that RegTech should be adopted as Best Available Technology by agencies, including the EPA.

Berger on Liberal Constitutionalism & Secularism

Benjamin L. Berger (York University - Osgoode Hall Law School) has posted Liberal Constitutionalism and the Unsettling of the Secular (“Liberal Constitutionalism and the Unsettling of the Secular” in Rex Adhar, ed., Research Handbook on Law and Religion (Northampton, Mass: Edward Elgar, 2018), 198-220) on SSRN.  Here is the abstract:

This chapter argues that certain features of our constitutional theories and practices have been more dependent than we have heretofore acknowledged on an implicit faith in the character and success of secularism. An assumption about the “secular” nature of the social world has lent certain resources to liberal constitutional theory and made possible particular ideas about the nature of contemporary constitutionalism. Yet the conviction that our political and social lives can be satisfyingly described as secular has been seriously destabilized by experience and theory alike. A simple faith in secularism thus unsettled, certain gaps or shortcomings in prevailing accounts of liberal constitutionalism are exposed. This chapter explores how this unsettling of secularism troubles claims about the centrality of proportionality analysis and rights constitutionalism in constitutional thought and practice, and ultimately raises questions about the ground for legitimacy and role of sovereignty in modern constitutionalism.

Boni-Saenz on Age Discrimination

Alexander A. Boni-Saenz (Chicago-Kent College of Law) has posted Age, Time, and Discrimination (Georgia Law Review, Vol. 53, 2019 Forthcoming) on SSRN. Here is the abstract:

Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that age-based legal rules are commonplace, determining everything from access to health care to criminal sentences to voting rights. The central claim of this Article is that equality can neither adequately describe the moral wrong of age discrimination nor justify the current landscape of statutory age discrimination law. The wrong of age discrimination lies not in a comparison, but instead in the deprivation of some intrinsic interest that extends throughout the lifecourse. Thus, we must turn to non-comparative values, such as liberty or dignity, to flesh out the theoretical foundation of age discrimination law. Exploring this alternative normative foundation generates valuable insights for current debates in discrimination theory and the legal regulation of age.

Recommended.

Shoemaker on Indigenous Land Tenures

Jessica A. Shoemaker (University of Nebraska - College of Law) has posted Transforming Property: Reclaiming Modern Indigenous Land Tenures (California Law Review, Forthcoming) on SSRN.  Here is the abstract:

This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation property is deeply problematic. In particular, the trust status of many reservation lands is expensive, bureaucratic, controlling, and linked to persistent poverty in many reservation communities. Yet, for complex reasons, trust property has proven largely immune from fundamental reform. Today, there seem to be two primary options floated for the future: a “do the best with what we have” approach that largely accepts core problems with trust, perhaps with some minor efficiency-oriented tinkering, for the sake of the benefits and security it does provide, or a return to old, already-failed reform strategies focused on simply “liberating” American Indian people with a forced transition to state-based fee-simple property. Both strategies respond, sometimes implicitly, to deep impulses about how property should work, especially in a market economy, but both also neglect sufficient respect for the true potential of more autonomous indigenous property regimes.

This Article engages property theory and related work on property system change to make the case for more radical institutional land reform as a realistic alternative choice, even in the complex and multi-layered environment of existing reservations. Property systems are full of dynamic, pluralistic potential, and property powerfully shapes the contours of both human communities and physical landscapes. This Article unearths this existing potential and charts a series of alternative steps, driven primarily by respect for tribal governments’ own actions and choices, to reclaim new, modern versions of indigenous land tenures within reservation spaces.

Very interesting and recommended.

Kolber on Whole Life versus Current Crime Retributivism

Adam J. Kolber (Brooklyn Law School; NYU School of Law) has posted The Time Frame Challenge to Retributivism on SSRN.  Here is the abstract:

Retributivists believe that criminal offenders should suffer or be punished in proportion to what they morally deserve. There is, however, an often-ignored debate as to whether desert should be assessed across a person’s life (the “whole life” view) or only for crimes that are the subject of a current sentencing proceeding (the “current crime” view). Both options are unappealing. The whole life view may be superior on theoretical grounds but is hopelessly impractical. The current crime view is somewhat more practical but has no solid theoretical foundation. The lack of a suitable time frame in which to assess desert represents an important challenge to retributivist conceptions of proportionality. Even uncertainty about the proper time frame may itself be detrimental to some retributivists’ hopes of justifying the incarcerative sentences of particular offenders.

Another interesting paper from Kolber.  Highly recommended.

DeGirolami on the Development of First Amendment Doctrine

Marc O. DeGirolami (St. John's University - School of Law) has posted The Sickness Unto Death of the First Amendment (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN.  Here is the abstract:

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.

What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.

This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.

Highly recommended.

Bertomeu on Judicial Politics in Latin America

Juan Gonzalez Bertomeu (Instituto Tecnológico Autónomo de México (ITAM)) has posted Judicial Politics in Latin America (Forthcoming, Tatiana Alfonso, Karina Ansolabehere, Rachel Sieder, Handbook of Law and Society in Latin America, Routledge) on SSRN.  Here is the abstract:\

This chapter offers a reading of Latin American judicial politics as organized around five questions. It reviews relatively recent work on Latin American courts—particularly those exercising constitutional adjudication—in an illustrative fashion. The aim is not to achieve elucidation, since explanations often rival one another, but highlight the field’s representative contributions and challenges. The first question, tackled in section 1, is conceptual—what we mean when we talk about judicial “independence” and “power”? The second question (section 2) concerns court empowerment—why and under what conditions do political actors delegate power to courts? The third question is what explains judges’ behavior on the bench? What are (some of) the motivational factors that influence their decisions? Section 3 explores two sets of candidates—judges’ attitudes and strategic considerations—while section 4 offers a discussion of the law and legal ideas or cultures. The final two questions (section 5) regard the relevance and determinants of, on the one hand, court activation and, on the other, compliance with decisions. The chapter concludes by offering some insights into the challenges lying ahead.

Möslein on Legal Limitations on Smart Contracts

Florian Möslein (Universität Marburg (Institut für Handels- und Wirtschaftsrecht); Munich Center on Governance (MCG)) has posted Legal Boundaries of Blockchain Technologies: Smart Contracts as Self-Help? (A. De Franceschi, R. Schulze, M. Graziadei, O. Pollicino, F. Riente, S. Sica, P. Sirena (eds.), Digital Revolution – New challenges for Law, 2019 Forthcoming) on SSRN.  Here is the abstract:

As a consequence of the blockchain revolution, a key challenge of our times is to identify the legal boundaries of smart contracts and thus to develop conflict rules for divergences between state law and technology-based code. Even if smart contracts are technologically self-executing, they are not necessarily legally enforceable. Rather, they must satisfy a variety of legal and contract law requirements. Two different levels of such rules can be differentiated, namely rules of recognition and substantive restrictions. At both levels, it emerges that either the lawmaker can intervene and introduce new, specific rules, or the judiciary can develop rules on the basis of existing and more general legal standards. For example, at the European level the Unfair Terms Directive and (in future) the Directive on Contracts for the Supply of Digital Content limit the potential scope of smart contracts. At national level, the rules on self-help constitute a crucial legal boundary. At least some applications of blockchain technology will be subject to these rules, strictly limiting their admissibility. Under German law, for instance, a waiver of the relevant provisions is largely excluded. In the case of cross-border situations, the comparative divergence of self-help rules will create legal uncertainty and may hinder the use of smart contracts.

Interesting.

Bertomeu on the Columbian Constitutional Court's Substitution Doctrine

Juan Gonzalez Bertomeu (Instituto Tecnológico Autónomo de México (ITAM)) has posted The Colombian Constitutional Court’s Doctrine on the Substitution of the Constitution (Forthcoming. Richard Albert, Carlos Bernal, and Juliano Zaiden Benvindo, Constitutional Change and Transformation in Latin America, Hart Publishing) on SSRN.  Here is the abstract:

The defense of substantive limits on constitutional change has mainly taken two roads. One has been to claim that certain constitutional provisions cannot ever be changed, though they might be restricted or suspended under some conditions. This position (“intangibility”) has a textual basis in the German Basic Law as well as several other constitutions, including a host of Latin American ones. A second road has been to claim that, ex ante, any provision can be amended, though the constitution’s essential structure either cannot or can only be amended following a more restricted procedure. In other words, this position claims that a “normal” process of constitutional change cannot “substitute” or “replace” the constitution. Courts have taken active part in discussions around these limits. The notion of substitution or replacement—or close relatives—has been invoked in such different countries as Ireland, Italy, and India, to mention a few. In Latin America, it has been employed in politically salient decisions in the past fifteen years or so by the Colombian Constitutional Court (the rubric “substitution” is its own). This chapter concerns itself with this notion, and critically analyzes the Court’s invocation of it. The Court has taken pains to present the substitution doctrine on procedural grounds regarding both the Constitution’s amendment provisions and the Court’s authorization to supervise changes, and the chapter reviews that attempt. Yet, the doctrine also deals with substantive questions about the nature and content of the (Colombian) Constitution, the activation and limits of constituent power, and judicial review in a democracy. The chapter engages these questions as well. Given both the Court’s current use of the doctrine and the renewed discussions of constituent power in the region, these are all timely questions.

Gervais on the Economics of Collective Management of Copyrights

Daniel J. Gervais (Vanderbilt University - Law School) has posted The Economics of Collective Management (Ben Depoorter & Peter S. Menell (eds.), Research Handbook on the Economics of Intellectual Property Law, Forthcoming) on SSRN.  Here is the abstract:

This chapter begins by defining collective management (of copyright and related rights) and collective management organizations (CMOs). After briefly reviewing possible definitional characteristics, the first part of the chapters uses a functional approach to define CMOs and then explains their economic and noneconomic functions. The next part discusses key aspects of the economic analysis of collective management, namely the justification for collective management, and the valuation of licensed repertoires (or copyright works or objects of neighboring rights) and individual works within such repertoires. This includes a survey of major economic models used in this field. The second part ends with a discussion of efficiency issues related to collective management. The third and last part considers the specific aspects that arise in collective management when it is applied to online uses of copyright material.

Raz on Identity and Social Bonds

Joseph Raz (University of Oxford - Faculty of Law) has posted Identity and Social Bonds on SSRN.  Here is the abstract:

I first argue that there is no problem about how to justify partialities (though there is a difficulty in justifying impartialities). Then I consider the role of consent in justifying rights and duties, using voluntary associations as a case in which consent has an important but limited role in doing so, a role determined and circumscribed by evaluative considerations. The values explain why consent can bind and bind one to act as one does not wish to do and even as one judges to be ill advised. That opens the way to an explanation of how value considerations relate to non-voluntary membership in socially constituted groups, generating rights and duties that to a considerable extent are independent of the individual’s aims and preferences.

Highly recommended.

Daly on a Children's Autonomy Principle

Aoife Daly (University of Liverpool) has posted A Proposal: Replace the ‘Right to Be Heard’ with a ‘Children's Autonomy Principle’ (Aoife Daly, Children, Autonomy and the Courts: Beyond the Right to be Heard (Brill/Nijhoff, 2018)) on SSRN.  Here is the abstract:

This is Chapter 1 of Children, Autonomy and the Courts: Beyond the Rights to be Heard (Daly, 2018). This chapter proposes that, although CRC Article 12 focuses on ‘hearing’ children in proceedings about their best interests, instead the aim should be to facilitate children to exercise autonomy to the highest degree possible, through a children’s autonomy principle. In legal decisions in which the best interest of the child is the primary consideration, children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm would arise from their involvement or preferences. The examination in this chapter of the textual problems with CRC Article 12 will inform arguments later in the book around the moral and legal inconsistencies surrounding the treatment of children’s autonomy in practice.

Knight on the Commonwealth Common Law of Judicial Review & Depth of Scrutiny

Dean R. Knight (Victoria University of Wellington - Faculty of Law) has posted Vigilance and Restraint in the Common Law of Judicial Review: Introduction (Dean R Knight, Vigilance and Restraint in the Common Law of Judicial Review (Cambridge University Press, 2018)) on SSRN.  Here is the abstract:

One of the key features of the system of judicial review is the variation of the depth of scrutiny by the supervising court when examining administrative decisions. The circumstances of different cases lead to different emphases being drawn between the competing notions of judicial vigilance and restraint. But the manner in which this balance is mediated and the depth of scrutiny is modulated differs across time and across jurisdictions. This book examines the methodologies used to vary the depth of scrutiny in English and other Anglo-Commonwealth (Australia, New Zealand and Canada) systems of judicial review over the last 50 years or so.

In this book I identify four schemata which are employed to organise the modulation of the depth of scrutiny:

(a) scope of review, based on an array of formalistic categories which determine whether judicial intervention is permissible;

(b) grounds of review, based on a simplified and generalised set of grounds of intervention;

(c) intensity of review, based on explicit calibration of the depth of scrutiny taking into account a series of constitutional, institutional and functional factors; and

(d) contextual review, based on an unstructured (and sometimes instinctive) overall judgement about whether to intervene according to the circumstances of the case.

These four schemata – loosely drawn from the language and structure of Professor Stanley de Smith’s acclaimed judicial review textbook as it changed over its seven editions – provide structure for the study. For each of the schemata, doctrinal, theoretical and normative dimensions are examined.

Wallace on Assault Weapon Bans

E. Gregory Wallace (Campbell University School of Law) has posted 'Assault Weapon' Myths (43 Southern Illinois Law Journal (2018)) on SSRN.  Here is the abstract:

Four federal circuit courts have rejected Second Amendment challenges to “assault weapon” bans. The main target of these bans is the civilian AR-15, the most popular rifle in America. Most recently, the en banc Fourth Circuit in Kolbe v. Hogan took the unprecedented step of declaring that the AR-15 is not a protected firearm under the Second Amendment because it is functionally equivalent to the military M16. These courts have based their decisions upholding bans on the AR-15 and other “assault weapons” on certain factual claims about how these firearms operate.

This Article critically examines these factual claims. It identifies three common myths — the weapon of war myth, the rate of fire myth, and the combat features myth — that repeatedly appear in the four decisions and drive their outcomes. It shows how these myths are perpetuated by the judges’ refusal to take seriously readily-available evidence about the operation and use of these weapons, with a special focus on Kolbe’s attempt to depict the AR-15 as functionally identical to the M16.

Scott-Railton on RFRA & Sanctuary Churches

Thomas Scott-Railton (Yale University, Law School, Students) has posted A Legal Sanctuary: How the Religious Freedom Restoration Act (RFRA) Could Protect Sanctuary Churches (Yale Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Across the country, places of worship are declaring themselves sanctuaries and providing shelter to undocumented individuals. The last time this happened on a large scale, the 1980s, the federal government undertook a campaign of surveillance and infiltration, ultimately arresting and convicting a number of sanctuary activists. Yet under the Religious Freedom Restoration Act (RFRA) jurisprudence of the Roberts Court, religious exercise now enjoys more protection than at any point in recent history. This piece asks whether RFRA could protect sanctuary churches and immigrant congregations—and what this can teach us about the current political and legal landscape around religious accommodation claims.

Part I describes the history of the sanctuary movement and its current form today. Part II tracks the evolution and current state of religious exercise protections under RFRA. Part III analyzes two types of sanctuary issues under current RFRA doctrine: (1) whether sanctuary churches should receive an exception from federal laws prohibiting various forms of assistance to undocumented individuals; and (2) whether RFRA would place limits on ICE’s ability to raid or surveil places of worship. I conclude that RFRA would in many cases protect sanctuary activists from prosecution, as well as place limits on ICE’s ability to conduct enforcement actions at places of worship.

Part IV examines sanctuary claims within the broader context of politically-fraught debates over religious accommodation. I explore how a consensus around protecting minority faiths and subordinate groups from de facto unequal treatment relative to powerful mainstream faiths animated RFRA’s effects-based approach and near-unanimous passage in 1993, but also how recent attempts by mainstream faith groups to further extend religious accommodation protections (at times at the expense of minorities, religious and otherwise) have eroded that consensus. Accommodation claims from the left, like sanctuary, have the potential to cut across existing political battle lines to produce a more stable equilibrium between religious freedom and other competing rights. This piece offers several concrete doctrinal suggestions for what such an equilibrium would look like; if courts were to analyze various open questions in RFRA doctrine with an eye to the particular harms that arise from the unequal treatment of disadvantaged groups, it would better balance the competing interests at stake, restoring an original consensus and avoiding the divisiveness produced by recent claims brought by politically-influential, mainstream faith groups.

For a different take on these issues, see Immigration Law's Looming RFRA Problem Can Be Solved By RFRA by Stephanie Acosta Inks.

Natelson on the Montana Constitution

Robert G. Natelson (Independence & Montana Policy Institutes) has posted Constitutional Coup? The Case that Promulgated a New Constitution for Montana on SSRN.  Here is the abstract:

This Article examines one of the most important state court cases ever decided. In Montana ex rel. Cashmore v. Anderson, the Montana Supreme Court exercised its original jurisdiction by a 3-2 margin to order that the state’s original constitution be replaced with a new one that likely had failed of ratification. In doing so, the court yielded to interest groups that favored replacing the original state constitution with an instrument based on radically different premises. Political threats may have caused the swing justice to vote for the new constitution, but even if that did not occur, the case represents a striking example of the failure of the rule of law. The Article also proposes reforms that may reduce the chances of a recurrence.

Sunstein on Lochner

Cass R. Sunstein (Harvard Law School) has posted Lochner's Legacy (87 Columbia Law Review 873 (1987)) on SSRN.  Here is the abstract:

The received wisdom is that Lochner was wrong because it involved “judicial activism”: an illegitimate intrusion by the courts into a realm properly reserved to the political branches of government. This view has spawned an enormous literature and takes various forms. The basic understanding has been endorsed by the Court in many cases taking the lesson of the Lochner period to be the need for judicial deference to legislative enactments.

The principal purpose of this essay, descriptive in character, is to understand Lochner from a different point of view. For the Lochner Court, neutrality, understood in a particular way, was a constitutional requirement. The key concepts here are threefold: government inaction, the existing distribution of wealth and entitlements, and the baseline set by the common law. Governmental intervention was constitutionally troublesome, whereas inaction was not; and both neutrality and inaction were defined as respect for the behavior of private actors pursuant to the common law, in light of the existing distribution of wealth and entitlements. Whether there was a departure from the requirement of neutrality, in short, depended on whether the government had altered the common law distribution of entitlements. Market ordering under the common law was understood to be a part of nature rather than a legal construct, and it formed the baseline from which to measure the constitutionally critical lines that distinguished action from inaction and neutrality from impermissible partisanship. This understanding of the Lochner period is faithful to what the Court said when it both engaged in and abandoned Lochner-like reasoning, and it points to an important element in the Lochner Court's approach, one that has little to do with an aggressive judicial role in general.

I am departing from my usual policy of only posting recent papers for this classic and important paper by Cass Sunstein.  Because this paper is now more than twenty years old, it may not have been read by many younger constitutional scholars and law students.  Highly recommended.

Brandes on the Enactment of "Basic Law: Israel as the Nation State of the Jewish People"

Tamar Hostovsky Brandes (Ono Academic College Faculty of Law) has posted Israel's Nation-State Law – What Now for Equality, Self-Determination, and Social Solidarity? on SSRN.  Here is the abstract:

The enactment of Basic Law: Israel as the Nation State of the Jewish People (“the Law”) on July 19th, 2018, triggered an intense public debate in Israel. Opponents of the Law refer to it as racist, shameful and disgraceful, and demanded its immediate repeal. Eight petitions against the Law have been filed, as of October 1, 2018, to the High Court of Justice. Proponents of the Law argue that it is a legitimate legal entrenchment of the right of the Jewish people to self-determination, which is, they argue, the justification for the establishment of the state of Israel. They argue that the Law does not violate the principle of equality, which in entrenched, albeit inexplicitly, in Basic Law: Human Dignity and Liberty. They further argue that it is necessary in order to balance Supreme Court’s alleged preference of “universal values” over national ones. The questions raised by the Law can be divided into three groups. The first group of questions regards the possible effects the Law may have on individual rights, and, in particular, on the right to equality. The second group of questions regards the implications of the Law for possible future recognition of collective rights for non-Jewish minorities, or for other forms of state recognition of minority groups. The third group of questions regard the manner in which the Law shapes the national identity of Israel, constructs the terms and content of membership in the political community in Israel, and affects social solidarity. The paper will analyse the three group of questions, examining them against the backdrop of current political discourse in Israel. The two most important issues, in this regard, are the public debate regarding the concept of “a state of all its citizens”, understood by many Israelis as incompatible with the definition of Israel as a Jewish state, and the ongoing political struggle between the Knesset and the Supreme Court regarding the limits of judicial review. The paper argues that the significance of the Law, and the intensity of the public debate it stirred, can only be understood within this context. The paper argues that in addition to the serious equality concerns the Law raises, the Law undermines the ability to create inclusive, all-encompassing social solidarity in Israel. While violations of equality could potentially be mitigated by a willing Supreme Court, the negative effect the Law may have on social solidarity in Israel may be difficult to alleviate.

Guttentag on Law and Surplus Value

Michael D. Guttentag (Loyola Marymount University) has posted Law and Surplus: Opportunities Missed (Utah Law Review, Forthcoming) on SSRN.  Here is the abstract:

Surplus is a ubiquitous feature of economic activity. The ubiquity of surplus challenges us to find fair and efficient ways to share resources. This is the surplus problem. The law can and should play a central role in addressing the surplus problem. This article documents the miscues and mistaken assumptions that have left this topic woefully underexplored in legal scholarship.

I identify and consider in detail here three important missed opportunities. First, scholars studying “rent-seeking,” such as Gordon Tullock, identify competition for surplus as a significant source of economic waste, but then fail to explore the broader ramifications of their insight. Second, law and economics scholars, such as Omri Ben-Shahar, presume that markets will provide the best solution to the surplus problem based on faulty assumptions that do not withstand careful scrutiny. Finally, consumer law scholars, such as Oren Bar-Gill, mistakenly rely on familiar market failure arguments to justify laws designed to protect consumers, rather than address the surplus problem that should be central to their analysis.

Collectively, these three missed opportunities illustrate how law’s role in addressing the surplus problem has been shunted to the periphery of legal scholarship rather than placed at the center of legal discourse where it rightly belongs.

Legal Theory Lexicon: Metalinguistic Negotiation

Introduction

At some point, law students are likely to encounter a topic where the debate moves away from substantive disagreement and towards what might seem like matters of definition.  For example, in debates about constitutional interpretation, some protagonists argue that the word "interpretation" refer to the activity of discovering the linguistic meaning of the text, but others believe that "interpretation" refers to a broader activity that allows normative considerations to determine the legal effect that the text will have.

What kind of dispute is this?  One possibility is that it is a dispute about "definitions" that might be resolved by looking to a dictionary, but usually dictionary definitions will fail to address the real grounds of dispute.  At this point, one can imagine the disputants simply agreeing to disagree about the meaning of the disputed word or term, but frequently this move fails, because neither side will yield on the question what "interpretation" (or some other legal concept really is.

It is at this point that the concept of metalinguistic negotiation may help us to understand what is really going on.  In metalinguistic negotiation, the parties to a dispute attempt to reach agreement on how words should be used and what shape concepts should have.  This entry in the Theory Lexicon will provide a brief introduction to this idea.  As always, the introduction is aimed at first year law students with an interest in legal theory.

Here is how the philosopher David Plunkett articulates the idea of metalinguistic negotiation:

In basic terms, a metalinguistic negotiation (or, equivalently, a normative metalinguistic dispute) is a dispute in which speakers each use (rather than mention) a term to advocate for a normative view about how that term should be used.

A simple example of metalinguistic negotiation in action is provided by the debate that ensued when the magazine Sports Illustrated listed Secretariat as one of the greatest 50 athletes of the 20th Century.  Some sports fans argued that Secretariat wasn't eligible to be an athlete; others argued to the contrary.  The dispute wasn't about the facts: everyone could agree about the greatest of Secretariat was an amazing racehorse.  The real dispute was about the character or general meaning of the term "athlete."  (Plunkett, 2015)

Words and Concepts

Before we explore metalinguistic negotiation itself, we need to get clear on a prior distinction--the distinction between words and concepts.  Let use quotation marks to designate words, and italics to designate concepts.

The word "interpretation" represents a concept, interpretation.  That the word and the concept are different entities is easy to see from the fact that different words are used in different languages to represent the same concept.  Thus, the English word "interpretation" and the German word "Deutung" can be used to represent the same concept.

Metalinguistic negotiation may seem to be focused on words, but at a deeper level the disagreement may well be about the concepts that the words represent.  When we debate about the meaning of the word "interpretation" or actual dispute may be about the shape of the concept interpretation that we use the word to represent.

How to Proceed in Metalinguistic Negotiation

Let's take another example of metalinguistic negotiation, the dispute over the word "originalism" and the concept originalism for which the word stands.  Imagine the following conversation:

Ben: Originalism is the theory that judges should be bound by the linguistic meaning of the constitutional text.

Alice: That's a dumb theory.  That would mean that we would be required to equate the word "arms" in the second amendment with muskets and flintlock pistols.

Ben: No, originalism requires that we follow the original meaning of the text and the word "arms" means weapons that can be carried.  Modern pistols and rifles are "arms" given the original meaning.

Alice: That isn't "originalism."  Originalism means we are limited to the applications that the framers and ratifiers expected.

Ben: You are wrong.  Originalism is about public meanings not expected applications.

At this point, the issue has been joined, but how can the discussion continue.  There are at least three options:

Stipulate Definitions: One possibility is that the disputants could stipulate to definitions in order to continue the conversation.  For example, conversation between Ben and Alice could continue as follows:

Alice: Okay.  Let's stipulate that there are two forms of originalism, "original public meaning originalism" and "original expected applications originalism."  You are talking about the first form of originalism, but I am talking about the second.

Appeal to Linguistic Practice: Another possibility is that the disputants can appeal to the way the disputed words and concepts are actually used.  For example, the conversation between Ben and Alice might continue as follows:

Alice: I don't think you are right.  Originalists like Justice Scalia believe that the original beliefs about applications are binding on us today.  Our use of the word "originalism" ought to correspond to the concept that originalists actually employ when they practice originalism.

Appeal to Theoretical Values:  Yet a third possibility is that the disputants will shift the conversation to questions about which version of a concept is theoretically more attractive, powerful, simple, and so forth.  For example, we can imagine, the conversation between Ben and Alice continuing as follows:

Alice: But originalists do appeal to expected applications.

Ben: That's true, but the most powerful form of originalism relies on public meanings.  Expected applications should only play an evidentiary role.  We ought to be talking about a coherent and defensible concept of originalism--not a dumb version.

Conclusion

These simple examples illustrate some of the options for metalinguistic negotiation.  If you are interested in exploring this idea on a deeper level, you can consult the references provided below. 

Related Lexicon Entries

• Legal Theory Lexicon 035: Strict Construction and Judicial Activism
• Legal Theory Lexicon 071: The New Originalism
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory

Bibliography

• David Plunkett & Timothy Sundell, Disagreement and the Semantics of Normative and Evaluative Terms, 13 Philosophers' Imprint 23 (2013).
• David Plunkett & Timothy Sundell, Dworkin's Interpretivism and the Pragmatics of Legal Disputes, 19 Legal Theory 3 (2013).
• David Plunkett & Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response in Pragmatism, Law, and Language 56-75. (G. Hubb and D. Lind eds. 2014).
• David Plunkett, Negotiating the Meaning of ‘Law’: The Metalinguistic Dimension of the Dispute Over Legal Positivism”, Legal Theory. (2016). Vol. 22, No. 3-4, 205-275.
• David Plunkett, “Which Concepts Should We Use?: Metalinguistic Negotiations and The Methodology of Philosophy”, Inquiry. (2015). Vol. 58, Nos. 7-8, 828-874.

(Last modified on November 11, 2018)

Legal Theory Bookworm: "Why Does Inequality Matter" by Scanlon

The Legal Theory Bookworm recommends Why Does Inequality Matter? by T. M. Scanlon. Here is a description:

Inequality is widely regarded as morally objectionable: T. M. Scanlon investigates why it matters to us. Demands for greater equality can seem puzzling, because it can be unclear what reason people have for objecting to the difference between what they have and what others have, as opposed simply to wanting to be better off. This book examines six such reasons. Inequality can be objectionable because it arises from a failure of some agent to give equal concern to the interests of different parties to whom it is obligated to provide some good. It can be objectionable because it involves or gives rise to objectionable inequalities in status. It can be objectionable because it gives the rich unacceptable forms of control over the lives of those who have less. It can be objectionable because it interferes with the procedural fairness of economic institutions, or because it deprives some people of substantive opportunity to take part in those institutions. Inequality can be objectionable because it interferes with the fairness of political institutions. Finally, inequality in wealth and income can be objectionable because it is unfair: the institutional mechanisms that produce it cannot be justified in the relevant way. Scanlon's aims is to provide a moral anatomy of these six reasons, and the ideas of equality that they involve. He also examines objections to the pursuit of equality on the ground that it involves objectionable interference with individual liberty, and argues that ideas of desert do not provide a basis either for justifying significant economic inequality or for objecting to it.

And from the reviews:

"[A] densely packed and succinctly written book which is analytical political philosophy at its best: clear, rigorous, and admirably sharp. It's also pitched at just the right level of abstraction; no one who reads it could fail to appreciate how Scanlon is troubled by the sheer extent of inequality in the United States, and there are suggestions of policy positions, for example dispersal of media ownership. ... anyone remotely interested in egalitarianism will find much to reward them in this outstanding book." -- Jonathan Seglow, Ethical Theory and Moral Practice

Download of the Week: "The Real Standard Picture, and How Facts Make It Law" by Goldsworthy

Jeffrey Denys Goldsworthy (Monash University - Faculty of Law) has posted The Real Standard Picture, and How Facts Make It Law: A Response to Mark Greenberg on SSRN.  Here is the abstract:

Mark Greenberg has attempted to refute what he regards as a popular metaphysical thesis about how law is constituted. He calls it the “Standard Picture”, and it includes a “Communication Theory”. His own “Moral Impact Theory” of law is built partly on that attempted refutation. I defend positions that are very close to the Standard Picture and Communication Theory, albeit different in important respects. In particular, they are not primarily metaphysical theses, although they have metaphysical implications. They are actual fundamental doctrines of constitutional law in Anglo-American legal systems, which I call Legislative Supremacy and Legislative Intention. I argue that: (a) these doctrines, and their metaphysical implications, vindicate much of the Standard Picture, and explain why so many theorists have been attracted to it; (b) the doctrines are inconsistent with Greenberg’s Moral Impact Theory; and (c) the best theory of what makes them part of the law is legal positivism: in other words, facts about legal practices make them law. In arguing for (a) and (b), I examine in detail and respond to Greenberg’s account of the legal principles and practice of statutory interpretation. I distinguish between three kinds of interpretation: clarifying, supplementing and rectifying. In arguing for (c), I contend that legal positivism satisfies Greenberg’s (questionable) insistence that any metaphysical account of what constitutes law must satisfy a “rationality requirement”.

This is an important paper by an important voice on theories of legal interpretation--and it is on a very important topic.

Highly recommended.  Download it while it's hot!

Thomas & Tomlinson on the Judicialization of Administrative Review

Robert Thomas (University of Manchester - School of Law) & Joe Tomlinson (King's College London; Public Law Project) have posted A Different Tale of Judicial Power: Administrative Review as a Problematic Response to the Judicialisation of Tribunals (Public Law (Forthcoming)) on SSRN.  Here is the abstract:

Administrative review is the process by which an administrative decision made by a public official – to refuse benefits or immigration status - is reconsidered by a different official within the same public body. Administrative review has operated in various contexts for years, but the rate of its recent expansion has been remarkable. Two systems have been key to this rapid growth. In the social security context, the introduction of ‘mandatory reconsideration’ requires that claimants refused benefits must first seek administrative review before appealing to a tribunal. In immigration, long-established appeal rights have been replaced entirely by administrative review. The volume of disputes channelled through administrative review exceeds that of tribunals and makes judicial review appear esoteric. This is a radical change to how people access and experience justice in the public law context. For the last fifty years and more, individuals in receipt of a negative administrative decision could appeal directly to independent and judicial tribunals to determine their legal rights and entitlements. The rationale for this fundamental shift is clear: the increase in tribunal caseloads and the success rates for appellants, austerity, and political objectives (the desire to reduce social security spending and immigration rates) have prompted the Government to reduce the number of tribunal appeals by requiring individuals to use administrative review. Within the longer arc of administrative justice developments, we suggest that administrative review should be understood as a consequence of the progressive judicialisation of tribunals. Government departments have argued that administrative review can provide people with an efficient and quicker way of correcting case-working errors and thereby reducing unnecessary appeals. On the other hand, there are concerns that administrative review is often an ineffective mechanism for challenging administrative decisions.

This article argues that administrative review – as it currently operates - is a problematic response to the increased judicialisation of tribunals. Administrative review has largely weakened the ability of people to secure redress. Reforms are therefore necessary to ensure administrative review can work more effectively in practice. The first part of this article discusses the need for justice within administrative decision-making and the development of tribunals. The second part turns to the recent expansion of administrative review. The third part considers the practical operation of administrative review in both the social security and immigration contexts. The fourth part assesses administrative review and suggests ways of enhancing its effectiveness. The final part considers the wider constitutional implications of the growth of administrative review. In particular, we suggest this episode of de-judicialisation provides an insight into nature of judicial power in UK public law. In contrast to the standard, high-profile debate about the growth of judicial power and the rise of ‘juristocracy’, the recent experience of administrative review tells a different tale. The greater use of administrative review has gone hand-in-hand with a correspondingly smaller role for the judicial control of front-line administrative decisions.

Interesting and recommended.

Villaronga, Tamò-Larrieux, & Lutz on Robot Therapy

Eduard Fosch Villaronga (Queen Mary University of London; eLaw Center for Law and Digital Technologies; Law, Governance & Technology Department. University of Twente), Aurelia Tamò-Larrieux (Center for Information Technology, Society, and Law (ITSL)), & Christoph Lutz (BI Norwegian Business School) have posted Did I Tell You My New Therapist is a Robot? Ethical, Legal, and Societal Issues of Healthcare and Therapeutic Robots on SSRN.  Here is the abstract:

Social robots and artificial intelligence (AI) technologies are increasingly used in healthcare. Typical examples of such robots are mobile assistants, cognitive therapeutic robots, and drones. This paper highlights the ethical, legal, and societal (ELS) issues of social robots in a highly sensitive domain - healthcare - and explores solutions to the identified challenges. This is in line with the latest European robot regulatory initiatives, and covers an area of research that has been scarcely covered in the latest AI and robot governance strategies. Our research contributes to the existing literature by providing findings from four international workshops held between 2015 and 2017 that gathered experts in the field. Specifically, we highlight challenges to the use of social robots in healthcare that are connected to the human-robot interaction. This happens either from a user/patient perspective, including issues such as privacy, autonomy, or the dehumanization of interactions, or from a worker perspective, including issues such as the possible replacement of nurses and doctors through robots. The paper also compiles the solutions to these ELS issues the experts deem appropriate to mitigate compounding risks. In the paper we argue that robot and AI policies that do not take into consideration the specifics of the concrete field of application risk being ineffective. Our contribution seeks thus to provide substantive sector-specific information to inform the current policy debate and set the scene for more interdisciplinary research.

Calo on the Indeterminacy of Privacy Law

Ryan Calo (University of Washington - School of Law; Stanford University - Law School; Yale Law School) has posted Privacy Law's Indeterminacy (20 Theoretical Inquiries L. XX (2019)) on SSRN.  Here is the abstract:

American Legal Realism numbers among the most important theoretical contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis—a key concept of American Legal Realism—and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself. The application of social science to privacy has, if anything, deepened its indeterminacy.

Highly recommended.  I think that discussion of these issues is sharpened and clarified by distinguishing "indeterminacy," "underdeterminacy," and "determinacy."  True "indeterminacy" occurs in the very rare circumstance where the law permits any outcome.  Full "determinacy" is equally rare: even the most precise legal norm will create some borderline cases.  The real questions are usually about "underdeterminacy" where the law permits some outcomes and rules others our.  For my take on these issues, see On the Indeterminacy Crisis: Critiquing Critical Dogma.