Legal Theory Blog

Crozier, Garrett, & Krishnamurthy on Jail Data

William Crozier (Duke University School of Law), Brandon L. Garrett (Duke University School of Law), & Arvind Krishnamurthy (Duke University, Department of Political Science, Students) have posted The Transparency of Jail Data (Wake Forest Law Review, Forthcoming) on SSRN.  Here is the abstract:

Across the country, pretrial policies and practices concerning the use of cash bail are in flux, but it is not readily possible for members of the public to assess whether or how those changes in policy and practice are affecting outcomes. A range of actors affect the jail population, including: law enforcement who make arrest decisions, magistrates and judges who rule at hearings on pretrial conditions and may modify such conditions, prosecutors and defense lawyers who litigate at hearings, pretrial-service providers who assist in evaluation and supervision of persons detained pretrial, and the custodian of the jail who supervises facilities. In the following Essay, we present the results of a case study in Durham, North Carolina. We began this project in the fall of 2018 by scraping data portraying daily pretrial conditions set for individuals in the Durham County Jail. The data was scraped from the Durham County Sheriff’s Inmate Population Search website and details the individual’s name, charges, bond type, bond amount, court docket number and time served. Scraping was initiated on September 1, 2018, and continues to the present. Beginning in early 2019, the judges and prosecutors in Durham, North Carolina, adopted new bail policies, reflecting a shift in the pretrial detention framework. This Essay provides a firsthand look into the pretrial detention data following these substantive policy changes. Our observations serve as a reflection on how the changes in Durham reflect broader pretrial detention reform efforts. First, we observe that a dramatic decline in the jail population followed the adoption of these policy changes. Second, we find that the policy changes corresponded with changes in aggregate conditions imposed pretrial. We describe, however, why public data that simply reports initial pre-trial conditions cannot answer additional questions concerning the jail population or outcomes for the released population. Nor can this data fully answer questions concerning which actors can be credited with the observed changes. During a time in which jail populations are a subject of pressing public concern, we have inadequate information, even in jurisdictions with public jail websites, to assess policy. We conclude by discussing the implications of data limitations for efforts to reorient bail policy.

Legal Theory Bookworm: "Identity Capitalists" by Leong

The Legal Theory Bookworm recommends Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality by Nancy Leong.  Here is a description:

Nancy Leong reveals how powerful people and institutions use diversity to their own advantage and how the rest of us can respond―and do better.

Why do people accused of racism defend themselves by pointing to their black friends? Why do men accused of sexism inevitably talk about how they love their wife and daughters? Why do colleges and corporations alike photoshop people of color into their websites and promotional materials? And why do companies selling everything from cereal to sneakers go out of their way to include a token woman or person of color in their advertisements?

In this groundbreaking book, Nancy Leong coins the term "identity capitalist" to label the powerful insiders who eke out social and economic value from people of color, women, LGBTQ people, the poor, and other outgroups. Leong deftly uncovers the rules that govern a system in which all Americans must survive: the identity marketplace. She contends that the national preoccupation with diversity has, counterintuitively, allowed identity capitalists to infiltrate the legal system, educational institutions, the workplace, and the media. Using examples from law to literature, from politics to pop culture, Leong takes readers on a journey through the hidden agendas and surprising incentives of various ingroup actors. She also uncovers a dire dilemma for outgroup members: do they play along and let their identity be used by others, or do they protest and risk the wrath of the powerful?

Arming readers with the tools to recognize and mitigate the harms of exploitation, Identity Capitalists reveals what happens when we prioritize diversity over equality.

And from the reviews:

"Nancy Leong moves past assumptions that the embrace of identity is always a positive good, and into a clear-eyed assessment of the ways that disingenuously instrumental use of identity displaces substantive reform and alienates Americans from each other. This is an invaluable read." -- Osamudia R. James, Professor of Law & Dean's Distinguished Scholar and Associate Dean for Diversity, Equity, and Community ― University of Miami

"Entertaining, accessible, and thought-provoking, this book expertly weaves the personal with the political, and individual relationships with institutional hierarchies. Instead of just exposing the prevalence and problem of identity capitalism, it helps the reader think about practical solutions." -- Nicole Buonocore Porter ― co-author of Feminist Judgments

"Puts on display just how much we trade on identity. Whether through misguided judicial decisions, tasteless diversity schemes, or disturbing encounters, Leong shows us that the price we pay is too high." -- César Cuauhtémoc García Hernández ― author of Migrating to Prison

"Stunning in its originality and breadth. Leong writes magnificently, using powerful examples to illustrate each point, reminding us of the need for care and authenticity." -- Erwin Chemerinsky ― author of Constitutional Law

"This book zeroes in on something we've all experienced but no one before has named, offering a new perspective on tokenism and institutional virtue signaling and uncovering the more unsettling side of racial diversity." -- Richard Ford ― author of Universal Rights Down to Earth

"A searching look at theway powerful insiders, and some outsiders, exploit identity for their own benefit. Leong pushes each of us to consider how we are all part of the system of identity capitalism." -- Angela Onwuachi-Willig ― author of According to Our Hearts

"The term 'identity capitalism' should take its place alongside 'white fragility' and 'unconscious bias' as part of the indispensable vernacular of civil and human rights. To engage with this unanswerable critique is to see that we are all identity capitalists now." -- Kenji Yoshino ― author of Speak Now

Download of the Week: "The Power of Interpretation" by McGinnis & Rappaport

The Download of the Week is The Power of Interpretation: Minimizing the Construction Zone by John O. McGinnis & Michael B. Rappaport.  Here is the abstract:

One of the most important conceptual innovations within modern originalism is the distinction between a zone of interpretation and a zone of construction. When constitutional provisions have a determinate meaning, decisions finding that meaning occur within the interpretation zone. But when the original meaning of a constitutional provision is indeterminate, decisions are based on something other than the original meaning and occur within the construction zone.

This Article represents the first sustained challenge to the importance of the distinction. It argues that a variety of techniques enhance the power of interpretation to resolve uncertainties and thus greatly reduce the size of the construction zone. These techniques are principally supplied by the language of the law in which the Constitution is written. The language of the law’s technical legal terms and legal interpretative rules provide a precision that ordinary language does not. When these techniques are correctly employed, the construction zone ends up being small. Under a small construction zone, issues that cannot be resolved based on the original meaning – principally the application of vague terms – rarely arise and, when they do, they involve only questions of secondary importance.

We make our case in three ways. We first offer a conceptual framework for resolving indeterminacy. We show how ambiguity can always be resolved by choosing the better attested meeting—an interpretive direction that existed at the Founding. We also show that many terms that seem vague are in fact ambiguities of related meaning, as for instance when the term property may mean either real property or real property and personal property. These ambiguities can, like other ambiguities, be resolved by following the better attested meaning. We then consider constitutional issues prominently proffered as examples of vagueness or other indeterminacies and show how they can be resolved under our framework. We finally show that modern originalist scholarship interpreting important constitutional provisions makes implicit use of our techniques to find determinate meanings rather than the indeterminacy requiring construction.

Highly recommended.  There is much in this essay with which I agree and some things that I believe are deeply wrong.  Download it while it's hot!

Dagan on a Liberal Theory of Property

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted A Liberal Theory of Property (Ch 1 + Ch 9) (Cambridge University Press, 2020) on SSRN.  Here is the abstract:

Property enhances autonomy for most people, but not for all. Because it both empowers and disables, property requires constant vigilance. “A Liberal Theory of Property” addresses key questions: how can property be justified? What core values should property law advance, and how do those values interrelate? How is a liberal state obligated to act when shaping property law?

In a liberal polity the primary commitment to individual autonomy dominates the justification of property, founding it on three pillars: carefully delineated private authority, structural (but not value) pluralism, and relational justice. A genuinely liberal property law meets the legitimacy challenge confronting property by expanding people’s opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination.

“A Liberal Theory of Property” shows how the three pillars of liberal property account for core features of existing property systems, provide a normative vocabulary for evaluating central doctrines, and offer directions for urgent reforms.

Sisk on the Common-Law Tort Remedy for Federal Official Wrongdoing

Gregory C. Sisk (University of St. Thomas School of Law (Minnesota)) has posted Recovering the Tort Remedy for Federal Official Wrongdoing (Notre Dame Law Review, Forthcoming 2021) on SSRN.  Here is the abstract:

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held personally liable under common-law tort theories, but then routinely were indemnified by the government.

The modern Federal Tort Claims Act (FTCA) roughly replicates the original regime for official wrongdoing by imposing liability directly on the government. Through modest revisions to the FTCA, most claims for abuse of federal government power can be adequately addressed through a common-law tort cause of action. The FTCA should be reformed to put claims for intentional wrongdoing on a more secure footing.

Constitutional principles remain central to adjudication of tort claims against the federal government. First, ordinary tort elements and defenses, such as probable cause in false arrest cases and justified use of force in assault and battery cases, may be refuted by asserting constitutional-equivalent violations. Second, discretionary policy immunity under the FTCA is precluded when constitutional limits are transgressed, as no federal officer has discretion to bypass constitutional requirements. And, because the doctrine of qualified immunity is misplaced in a tort regime, the commands of the Constitution should be directly enforced, without the diluting appraisal of whether the constitutional directive was clearly established in prior court precedent.

Davis on AI, Consciousness, & Law

Joshua P. Davis (University of San Francisco - School of Law) has posted AI, Ethics, and Law: A Possible Way Forward on SSRN.  Here is the abstract:

This Chapter offers a framework for analyzing the intersection of artificial intelligence (AI), ethics, and law. It does so, as Part 1 explains, by (1) suggesting potential limitations on AI consciousness and identifying the implications of those limitations for ethics and law, and (2) acknowledging three possible philosophical objections to this line of analysis and providing reasons to reject each of them. Part 2 explores the role that consciousness plays in forming objectives, including in making relevant moral and other value judgments. It suggests that as long as AI lacks consciousness we will have difficulty regulating it — our ethics and law often rely on intent in assigning, respectively, moral responsibility and legal liability — and difficulty using it to regulate ourselves — value judgments play an important role in resolving ethical and legal disputes. It also notes that conscious AI is likely to have very different first-person experiences than we do — and hence very different forms of intent and values than we have — giving rise to another set of difficulties for regulating it and for it regulating us. With this sketch of an argument in place, Part 3 addresses three potential philosophical objections to it: that consciousness as a matter of theory cannot have the sort of causal effect on behavior that Part 2 presumes; that consciousness as a matter of empirical fact does not have that sort of causal effect; and that Part 2 relies on a dubious understanding of free will. Part 3 contends that none of these objections is persuasive. The Chapter concludes that the analysis in Part 2 warrants further development.

McGinnis & Rappaport on Minimizing the Construction Zone

John O. McGinnis (Northwestern University - Pritzker School of Law) & Michael B. Rappaport (University of San Diego School of Law) have posted The Power of Interpretation: Minimizing the Construction Zone (Notre Dame Law Review, forthcoming) on SSRN.  Here is the abstract:

One of the most important conceptual innovations within modern originalism is the distinction between a zone of interpretation and a zone of construction. When constitutional provisions have a determinate meaning, decisions finding that meaning occur within the interpretation zone. But when the original meaning of a constitutional provision is indeterminate, decisions are based on something other than the original meaning and occur within the construction zone.

This Article represents the first sustained challenge to the importance of the distinction. It argues that a variety of techniques enhance the power of interpretation to resolve uncertainties and thus greatly reduce the size of the construction zone. These techniques are principally supplied by the language of the law in which the Constitution is written. The language of the law’s technical legal terms and legal interpretative rules provide a precision that ordinary language does not. When these techniques are correctly employed, the construction zone ends up being small. Under a small construction zone, issues that cannot be resolved based on the original meaning – principally the application of vague terms – rarely arise and, when they do, they involve only questions of secondary importance.

We make our case in three ways. We first offer a conceptual framework for resolving indeterminacy. We show how ambiguity can always be resolved by choosing the better attested meeting—an interpretive direction that existed at the Founding. We also show that many terms that seem vague are in fact ambiguities of related meaning, as for instance when the term property may mean either real property or real property and personal property. These ambiguities can, like other ambiguities, be resolved by following the better attested meaning. We then consider constitutional issues prominently proffered as examples of vagueness or other indeterminacies and show how they can be resolved under our framework. We finally show that modern originalist scholarship interpreting important constitutional provisions makes implicit use of our techniques to find determinate meanings rather than the indeterminacy requiring construction.

Highly recommended.  There is much in this essay with which I agree and some things that I believe are deeply wrong.  Download it while it's hot!

Balkin on Race & Constitutional Time

Jack M. Balkin (Yale University - Law School) has posted Race and The Cycles of Constitutional Time (Missouri Law Review, Forthcoming 2021) on SSRN.  Here is the abstract:

My 2020 book, The Cycles of Constitutional Time, argues that we can understand American constitutional development in terms of three different kinds of cycles. The first is the rise and fall of political regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal.

This essay shows how each of these cycles has deep connections to successive political struggles over race and racial equality in the United States.

Each regime’s winning coalition is shaped by the politics of slavery (in the antebellum period) or race (after the Thirteenth Amendment). In several cases, the dominant coalition eventually breaks down because of disputes about slavery or race. The cycle of polarization is also highly correlated with attempts by politicians to make race, and more generally, identity, the central questions that divide the two major political parties. Finally, polarization over race and identity-- along with increasing income inequality--has been an important factor in each period of constitutional rot in the country's history.

I do not claim that race is either the sole or the dominant explanation for the cycles of constitutional time in the United States. Nevertheless, race is a powerful factor, and the politics of race are an important driver of the cycles of regimes, polarization, and rot described in the book. My purpose in this Article is to highlight the role that racial politics plays in the transformations described in The Cycles of Constitutional Time, and to show how questions of race are important at each stage of the story.

Link to the book in the abstract.  Highly recommended.  Download it while it's hot!

Blocher & Siegel on the Common Law Approach to Public Safety & Guns

Joseph Blocher (Duke University School of Law) & Reva Siegel (Yale University - Law School ; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law) has posted When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety (Northwestern University Law Review, Vol. 116, 2021) on SSRN.  Here is the abstract:

Today, the gun debate focuses on how regulation can reduce the staggering number of Americans who are wounded or killed by guns every year. This Article widens that focus beyond injury-prevention, beyond the horrors of Sandy Hook, Parkland, and constant daily shootings, to examine cases where guns threaten and intimidate without inflicting physical injury—for example, when armed masses flood the legislature (Washington D.C. or Michigan), or when individuals pull guns on citizens in a protest march (St. Louis), or when people use guns to assert coercive control over intimate partners (everywhere).

Guns shape the ways we live together. As we show in an account of the armed protesters who flooded the Michigan legislature, weapons can be used not only to injure but to intimidate. For this reason, the government interest in regulating arms to promote public safety is not only concerned with preventing physical injuries, but also with preventing weapons threats. Recognizing that government regulates guns to prevent social as well as physical harms is a critical first step in building a constitutional democracy where citizens have an equal claim to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint. We draw on this principle in developing one of the first accounts of the public safety interest in regulating weapons.

In the wake of the January 6 riots in the United States Capitol, we have updated the Article to show how the assault on the Michigan legislature is connected to violent challenges to the 2020 election. These events, as well as many others from daily life, illustrate the character, scope, and stakes of public safety in a constitutional democracy.

All agree that there is a public safety interest in regulating guns, yet few agree about its scope. Some advocates of public carry are beginning to argue that preventing physical injury is the only legitimate reason for regulating guns. Other advocates, judges, and scholars claim that the Constitution restricts a democracy’s ability to legislate in the interest of public safety and privileges the claims of citizens who rely on guns, rather than gun laws, to respond to fears of violence.

To counter these arguments, we demonstrate that a different understanding of public safety is deeply rooted in our history. For centuries, the Anglo-American common law has regulated weapons not only to keep members of the polity alive, but to protect their liberties against weapons threats and to preserve public peace and order. That regulatory tradition has long shaped state and federal law. Critically, we show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Scalia specifically invokes it as a basis for reasoning about the regulation of guns.

Guided by core principles of our constitutional democracy and by traditions informing the Second Amendment itself, government can enact and enforce gun laws that secure public and private spaces for equal enjoyment by all citizens. We dispute scholars who assert that the Constitution privileges the security claims of the armed over the unarmed, or allows the redress of physical but not social injury. We show how concern for the even handed enforcement of gun laws is a core part of the public safety interest. Given the commitments that define our constitutional democracy, government can regulate weapons to ensure that all persons have equal claims to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint.

Li on Drahos on IP & Duties of Privilege

Phoebe Li (University of Sussex Law School) has posted Intellectual Property for Humanity: A Manifesto (Daniel Gervais (ed.) ATRIP Research Handbook in Intellectual Property (Edward Elgar 2021)) on SSRN.  Here is the abstract:

This chapter considers the challenge posed by Peter Drahos’ work on the ‘duties of privilege’, and provides a normative analysis of an intellectual property (IP) regime by articulating IP duties as a lens for defining the optimal scope of IP monopolies. It builds on a correlative duty-based approach as a parameter to better approximating dignitarian thoughts in IP. A paradigm shift to a balanced framework incorporating the duty approach would reconfigure the imbalance and redress the undesirable consequences of inequality.

A duty-based approach is not advocating a dichotomy regime separating rights from duties or replacing rights with duties, but a binary one taking full advantage of the extant IP flexibilities by embedding a sense of belonging, connectedness, honour and respect in a community of IP rights. A duty-based approach will work towards a collaborative humanitarian discourse and serve as a nuanced underpinning to the interface of IP power and competition where impacts will benefit society. Internal and external forces are identified for regulating IP following a comprehensive study on the philosophies of ownership. It concludes by proposing the primary waves of IP duties: a duty to self-moderation; a duty to benefit sharing; a duty to open innovation, and a duty to dissemination.

Wahedi on American Muslims & Constitutional Democracy

Sohail Wahedi (Erasmus University Rotterdam (EUR), Erasmus School of Law) has posted American Muslims: The Untouchables of American Constitutional Democracy? (Idaho Law Review, Vol. 56, 2020, pp. 305-321) on SSRN.  Here is the abstract:

This article is about the future of Muslims in the American constitutional democracy. How this future will look like depends highly on how the dominant majority as well as those sitting in the political, executive and judicial branches of power will deal with the emergence of Islamophobia. This article explores the roots of American fear of Muslims and their faith and reflects on what Islamophobia and its reinforcement bring for the future of American democracy. This article contends that the American anxiety about Islam will create huge disparities and advance a political agenda tainted with animus toward Muslims. This insidious dis-invitation to Muslims to participate in the American democracy needs to be halted to cleanse the American political scene from anxiety, bigotry and exclusion.

Michalski & Rushin on Federal Funding for Local Police

Roger Michalski (University of Oklahoma - College of Law) & Stephen Rushin (Loyola University Chicago School of Law) have posted Federal (De)Funding of Local Police on SSRN.  Here is the abstract:

Across the political spectrum, politicians, commentators, and activists frequently invoke federal funding as a lever to induce changes in local police behavior. But can federal funding function as an effective policy lever at the local level? Is federal funding or the threat of defunding a sufficiently strong tool to effectuate deeply contentious policy goals over local opposition?

This Essay conducts an empirical examination of federal funding for local and state police agencies in the United States. It finds that the federal government remains a relatively minor contributor to local police budgets. We find that federal funding only reaches a minority of local police agencies. Similarly, federal funds account, on average, for a relatively small percentage of what the typical American municipality spends on policing each year.

Overall, our findings suggest that most American law enforcement agencies are not acutely reliant on federal funding. These findings have several important implications for the literature on police reform and accountability. First, efforts to use the lever of federal funding to alter the behavior of local police departments may be ineffective. This may be particularly true when the reform demanded by federal lawmakers is expensive or unpopular locally. In such cases, rational local leaders may assess that the risk of losing federal funding is preferable to change demanded by federal lawmakers. Second, our findings suggest that federal lawmakers may be better off considering alternative paths other than the withholding of federal funds in promoting constitutional policing. To this point, we briefly lay out some additional avenues for federal police reform that do not rely on leveraging limited federal funds. Finally, our findings reinforce the fact that the ongoing debate about defunding police departments and reimagining public safety must occur primarily at the local, not federal level.

Parrillo on the Nondelegation Doctrine & the Administration of the Direct Tax of 1798

Nicholas R. Parrillo (Yale University - Law School) has posted A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s (Yale Law Journal, Forthcoming) on SSRN.  Here is the abstract:

The Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested they are open to the sweeping theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking’s constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics’ main response has been that these early statutes don’t count, because they fall into areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: non-coercive legislation (e.g., giving benefits) or foreign-affairs legislation.

This Article finds that the originalist critics of rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counter-example missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the “direct tax” of 1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties’ respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was “worth in money”—a standard that the legislation stated but did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with power to divide the state into districts and to raise or lower the assessors’ valuations of all real estate in any district by any proportion “as shall appear to be just and equitable”—a phrase undefined in the statute and not a term of art. The federal boards’ power to revise valuations en masse in each intra-state tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal tax burden within the state it covered.

This Article is the first study of the federal boards’ mass revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, the nation’s fourth-largest city, by 100 percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method; (c) had a major political aspect, as the federal boards were inheriting the contentious land-tax politics that had previously raged within the state legislatures, pitting the typical state’s rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards’ power was consistent with original meaning, or, alternatively, with the Constitution’s liquidated meaning. Vesting administrators with discretionary power to make politically-charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution into practice.

More broadly, this Article is the first in-depth treatment of the 1798 direct tax’s administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution’s first two decades. It is remarkable that today’s passionate debate on whether the administrative regulatory state violates the framers’ Constitution has so far made no reckoning with this endeavor.

Highly recommended.  Download it while it's hot!

Stone on the Circumstances of Civil Recourse Theory

Rebecca Stone (University of California, Los Angeles (UCLA) - School of Law) has posted The Circumstances of Civil Recourse (Law and Philosophy, Forthcoming) on SSRN.  Here is the abstract:

What circumstances create the need for an institution that conforms to civil recourse theory? I consider polities that vary in the extent to which they instantiate justice and argue that only a moderately non-ideal polity has a need for such an institution. When a polity gets close to the ideal, the polity needs institutions of corrective justice. When the polity gets very far from the ideal, tort law is at best instrumentally justified. Somewhere in between those two extremes, a civil recourse conception has significant justificatory advantages over both corrective justice and instrumental accounts. Even under these conditions, however, it remains difficult to explain within the confines of civil recourse theory why enforcement of tort law’s primary norms should remain in the hands of the victim. I suggest a possible explanation, but it requires us to jettison the claim that the wrongs of tort law are genuine wrongs.

Playing off Rawls's idea of the circumstances of justice, Stone has written a deeply interesting paper with a significance that extends beyond tort theory.  Highly recommended.  Download it while it's hot!

Goldberg on Harassment & Workplace Culture

Suzanne B. Goldberg (Columbia Law School) has posted Harassment, Workplace Culture, and the Power and Limits of Law (American University Law Review, Vol. 70, 2020) on SSRN.  Here is the abstract:

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment—from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability rather than cultural contribution. My central claim is that these judgment calls—about policy, procedures, training, and operations—shape workplace culture and that it is a mistake to view them only through a compliance lens. With this insight, it becomes clear that each of these will be more effective in shaping culture when the employee user-experience is a focal point, and this article suggests many ways to achieve this result.

By seeing harassment prevention and response as an opportunity for culture creation in addition to being a compliance obligation, it also becomes clear that harassing behavior may negatively affect the targeted employee and the broader workplace even when there is no risk of liability. This includes “lowgrade harassment,” a category I use to describe behaviors that are intentionally harassing but not severe or pervasive enough to meet doctrinal thresholds. Also relevant are microaggressions and interactions that reflect implicit bias, as these are unlikely to expose a firm to liability because they lack the discriminatory intent required by legal doctrine but nonetheless can create significant challenges for employees and organizations. This is not to suggest that employers should respond in an identical way to all of these occurrences. Rather, the point is that inattention to experiences that go beyond legal-accountability requirements is likely to spill over into the broader workplace culture and diminish the effectiveness of other harassment prevention and response efforts.

The good news is that there are specific steps an employer can take to have harassment prevention and response become part of the workplace culture rather than being sidelined as compliance. Thoughtfully crafted legislative and policy interventions, along with litigation settlements, also can bridge this gap and create a more seamless set of cultural expectations for how employees interact with each other at work and what they can expect from their employer when challenges arise.

Highly recommended.

Berman & Kreit on Marijuana Legalization & Criminal Justice Reform

Douglas A. Berman (Ohio State University (OSU) - Michael E. Moritz College of Law) & Alex Kreit (Northern Kentucky University - Salmon P. Chase College of Law) have posted Ensuring Marijuana Reform Is Effective Criminal Justice Reform
(Arizona State Law Journal, Forthcoming) on SSRN.  Here is the abstract:

In less than a decade, marijuana legalization has gone from unthinkable to seemingly unstoppable. This essay — written for a special issue on improving Arizona’s criminal justice system — discusses how Arizona should best advance marijuana legalization so that it can significantly improve Arizona’s criminal justice system. Now that Arizona has legalized marijuana via ballot initiative, we do not wade too deeply into the arguments for and against legalization or the criminal justice impact inherent in the repeal of prohibition (such as reductions in marijuana arrests and sentences). Instead, we focus on steps that Arizona policymakers and advocates who are interested in improving the criminal justice system can take to ensure that legalization best advances this goal. First, we set the stage in Part I with a brief history of marijuana prohibition, its role in criminal enforcement today, and the movement to enact state legalization laws. In Part II, we turn our attention to Arizona, beginning with a description of marijuana reform efforts in Arizona and key facets of the Smart and Safe Arizona Act. We then provide recommendations for policymakers and other concerned parties about how to ensure modern marijuana reforms in Arizona (and elsewhere) can and should help build a reform infrastructure that could not only ensure record relief to redress past marijuana convictions but also address broader criminal justice issues that historically intersect with marijuana prohibition.

Enoch on Resentment & Statistical Evidence

David Enoch (Hebrew University - The Philosophy Department and the Law School) has posted Statistical Resentment: Or, What’s Wrong with Acting, Blaming, and Believing on the Basis of Statistics Alone on SSRN.  Here is the abstract:

If a reliable friend tells you that a colleague has been badmouthing you, it may be appropriate to resent that colleague. Without reliable evidence, such evidence would not be appropriate, even if in fact the colleague has been badmouthing you. There is room, then, for the evidence law of resentment (and of morality). In this paper, we address one part of this evidence law of morality: Statistical evidence – say, that 95% of your co-workers badmouth each other – can never render resenting your colleague appropriate. The problem of statistical resentment is to explain why.

In this paper we put the problem of statistical resentment in several wider contexts: The context of the problem of statistical evidence in legal theory (including the problem that statistical resentment poses for our own past treatment of this topic); the epistemological context – with problems like the lottery paradox for knowledge, epistemic impurism and doxastic wrongdoing; and the context of a wider set of examples of responses and attitudes that seem not to be appropriately groundable in statistical evidence.

Regrettably, we do not come up with a fully general, fully adequate, fully unified account of all the phenomena discussed. But we give reasons to believe that no such account is forthcoming, and we sketch a somewhat messier account that may be the best that can be had here.

Cofone on Contact Tracing Apps and Immunity Passports

Ignacio Cofone (McGill University Faculty of Law) has posted Surveil, Trace, Repeat: Immunity Passports and Contact Tracing Surveillance on SSRN.  Here is the abstract:

This article assesses the privacy risk trade-offs of contact tracing apps and immunity passports. It does so from a constitutional, private, and regulatory law perspective. The article begins its analysis by developing a surveillance-based taxonomy of contact tracing apps and immunity passports. Next, the article demonstrates how consent and anonymization’s caveats and limits, often discussed in privacy law literature, are magnified in these apps. It then explores how the interplay of trust and error can pose threats to health and efficacy, how they raise issues of corporate and state liability, and how to address them. It then discusses the prospect that these apps cause discrimination and magnify existing inequalities. Underpinning the aforementioned is a balancing assessment.

Donelson on Carnes on Reparations

Raff Donelson (Penn State Dickinson Law) has posted Reparations, Responsibility, and Formalism: A Reply to Carnes (Philosophia, 2020) on SSRN.    Here is the abstract:

In a recent paper, Thomas Carnes develops a novel argument for reparations for historical injustices, like American slavery. He argues that reparations may be permissible, even if we grant that contemporary people did not cause those injustices and should not be made to pay for injustices they did not commit. On Carnes's view, the State, which is non-identical with its citizenry, should be made to pay. This Reply shows that Carnes succeeds only at the cost of invoking an implausible formalism. The Reply also presents in brief a simpler argument for reparations.

Recommended.

Bradley & Young on Third Party Standing

Curtis A. Bradley (Duke University School of Law) & Ernest A. Young (Duke University School of Law) have posted Unpacking Third-Party Standing on SSRN.  Here is the abstract:

Third-party standing is relevant to a wide range of constitutional and statutory cases. The Supreme Court has said that, to assert such standing, a litigant must ordinarily have a close relationship with the right-holder and the right-holder must face obstacles to suing on their own behalf. Yet the Court does not seem to apply that test consistently, and commentators have long critiqued the third-party standing doctrine as incoherent. This Article argues that much of the doctrine’s perceived incoherence stems from the attempt to capture, in a single principle, disparate scenarios raising distinct problems of both theory and practice. The Article “unpacks” third-party standing in two respects. First, it identifies true third-party standing problems by distinguishing them from first-party claims, largely by reference to the “zone of interest” concept. If litigants fall within the zone of interests of the substantive right they wish to invoke and they have an injury-in-fact, they may rely on their own first-party rights for standing. If they do not fall within the zone of interests, then they must rely on the rights of third parties. Second, the Article distinguishes among three types of parties invoking third-party standing: directly regulated parties, collaterally injured parties, and representative parties. The results in the Supreme Court’s third-party standing cases tend to track these distinctions, and we argue that it is time for the Court to recognize those distinctions in doctrine. The Article also rejects prior efforts by scholars to posit a general “valid rule” requirement as a way of reconciling the cases, an approach that we contend is both under- and over-inclusive. The Article concludes by highlighting aspects of modern litigation practice that may need revision in light of the unpacked third-party standing doctrine.

Highly recommended.

O'Connell on Marxism & Public Law

Paul O'Connell (University of London, School of Oriental & African Studies - School of Law) has posted Marxism and Public Law on SSRN.  Here is the abstract:

This chapter sets out the general contours of a Marxist approach to the study of public law. It begins by setting out some of the core elements of Marxist analysis, namely historical materialism and class antagonism, and noting the general relevance of these foundational principles for Marxist approaches to law in general. The chapter then looks at the Brexit conjuncture, and the central public law dilemmas associated with it, revolving in particular around the role of the courts, to illustrate the application of a Marxist analysis to the study of public law. Finally, the chapter considers what the implications are for a Marxist approach to public law when the issue arises of ‘socialist constitutionalism’.

Brand on Corporate Boards & AI

Vivienne Brand (Flinders University) has posted Artificial Intelligence and Corporate Boards - Some Ethical Implications (in Andrew Godwin, Pey Woan Lee and Rosemary Langford (eds) Innovation, Technology and Corporate Law (Edward Elgar Publishing, 2021, Forthcoming)) on SSRN.  Here is the abstract:

The ethics issues associated with AI have attracted significant attention. A range of guidelines for ‘Ethical AI’ have been promulgated by international agencies, domestic governments and others, but a criticism of these guidelines is that they operate at a high level of generality and are difficult to operationalise. Given the situated, complex ethical issues that AI generates, high-level principles may be insufficient to the task. This present problems for directors, who will be faced with AI ethics risks yet may feel the lack of useful guidelines. Given that the vast majority of AI will be developed and applied within corporate contexts, this issue is significant.

However, existing models of corporate regulation offer a potentially useful framework within which AI ethics issues can be analysed, by directors and others. Obligations owed by directors to make decisions in the best interests of the company and to act with care and diligence already require directors to make subtle, contextualised decisions, and these duties are also responsive to evolving community norms. Further, director obligations are supported by well-understood and developed accountability mechanisms and ultimately by state-based enforcement regimes. In the context of current critiques of AI ethics principles, these are significant advantages and point to the value of directors’ duties in the evolution of AI ethics corporate practice.

Chohan on COVID-19 Vaccine Nationalism

Usman W. Chohan (UNSW Business School; Critical Blockchain Research Initiative (CBRI); International Association of Hyperpolyglots (HYPIA); Centre for Aerospace & Security Studies (CASS)) has posted Coronavirus & Vaccine Nationalism on SSRN.  Here is the abstract:

This paper considers the scourge of vaccine nationalism as it applies to the geopolitical/geoeconomic context of the coronavirus (COVID-19) pandemic. It identifies the frightening challenge that vaccine nationalism poses to global public health outcomes, and particularly so in the developing world. It reviews the literature and the growing call for a rejection of this specific form of zero-sum nationalism that wields consequences for countless lives around the world.

Billauer on Anti-Vax Propoganda in Black Communities & COVID-19

Barbara Pfeffer Billauer (Institute of World Politics; International Program in Bioethics, U. of Porto; Foundation for Law and Science Centers, Inc.) has posted COVID-19 Vaccination, Anti-Vax Propaganda, and the Black Population (J. American Council on Science and Health, Nov. 2, 2020) on SSRN.  Here is the abstract:

American is now facing its third lockdown. Other countries are already so ensconced. Repeated efforts at COVID containment seem elusive. No respite seems in sight, other than expeditious vaccine dispensation. Along with concerted efforts in this direction, the vexing incidence of escalating vaccine resistance is raising its ugly head yet again, stoked by a growlingly effective anti-vax movement and false prophets of vaccine doom. This trend seems to have hit the Black community particularly hard.

Emens on Inaccessible New York City

Elizabeth F. Emens (Columbia Law School) has posted The Art of Access: Innovative Protests of an Inaccessible City (Fordham Urban Law Journal, Vol. 47, No. 5, 2020) on SSRN.  Here is the abstract:

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work — these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites these artists address, which will inform the Essay’s study of the interplay between disability, creativity, and urban life.

Farber on COVID-19 & Climate Change

Daniel A. Farber (University of California, Berkeley - School of Law) has posted A Tale of Two Crises: COVID-19, Climate Change, and Crisis Response on SSRN.  Here is the abstract:

This very short book chapter provides an overview of how the COVID-19 pandemic has already impacted climate emissions, the potential long-term effects on emissions, and already adopted and proposed green stimulus programs in the U.S. and elsewhere. Experience from the 2008 financial crisis suggests that a green stimulus could provide a long-term boost to renewable energy and related carbon-free technologies and infrastructure.

Recommended. 

Hunt on Hobbes on Determinism & Criminological Theory

Luke William Hunt (University of Alabama) has posted Hobbesian Causation and Personal Identity in the History of Criminology (Intellectual History Review, 2020) on SSRN.  Here is the abstract:

Hobbes is known for bridging natural and political philosophy, but less attention has been given to how this distinguishes the Hobbesian conception of the self from individualist strands of liberalism. First, Hobbes’s determinism suggests a conception of the self in which externalities determine the will and what the self is at every moment. Second, there is no stable conception of the self because externalities keep it in a constant state of flux. The metaphysical underpinnings of his project downplay the notion of a purely individualistic conception of the self, pointing to a positivist theory of criminology relying upon external forces. This theory is especially prescient with respect to twentieth-century variants of positivism that focus upon how social organization affects personality. In a sense, then, modern criminological theory is indebted to Hobbes’s focus upon the connections between externalities and the self; a focus that illuminates new ways of viewing responsibility and accountability.

Knowles on the Legal Educations of Phillips & Spooner

Helen J. Knowles (SUNY Oswego) has posted Learning the Law in 1830s Massachusetts: The Contrasting Experiences of Wendell Phillips and Lysander Spooner on SSRN.  Here is the abstract:

In the 1840s, Lysander Spooner and Wendell Phillips espoused opposing abolitionist interpretations of the United States Constitution. The former argued that the document did not sanction the enslavement of human beings, the latter denounced the text as a proslavery “covenant with death, and an agreement with hell.” This essay explores the effects of their contrasting legal educations on these theories. In the 1830s, Spooner worked as a legal apprentice under the tutelage of John Davis, Charles Allen, and Emory Washburn, three prominent lawyers (and politicians) working in Worcester, Massachusetts. By contrast, Phillips, consistent with his Boston Brahmin ancestry, attended the then-nascent Harvard Law School. The essay concludes that Spooner’s legal philosophy shows a far greater indebtedness to his legal education than does Phillips’s. This argument is defended by drawing on the voluminous correspondence and papers of both Phillips and Spooner, and the writings of their legal tutors and mentors.

Amazing research.  Highly recommended.

Goldman on Biden & Section 230

Eric Goldman (Santa Clara University - School of Law) has posted Dear President Biden: You Should Save, Not Revoke, Section 230 (Bulletin of the Atomic Scientists) on SSRN.  Here is the abstract:

During the 2020 presidential race, Joe Biden said that he is in favor of repealing Section 230, the law that says websites aren't liable for third-party content. This open letter to President Biden articulates four principles for his consideration of Section 230. As president, Biden should (1) set the right factual baseline, (2) set the right legal baseline, (3) ensure evidence-based policy-making, and (4) restore the U.S. as the world’s free speech leader.

Spaak on Kelsen’s Metaethics

Torben Spaak (Stockholm University) has posted Kelsen’s Metaethics on SSRN.  Here is the abstract:

Much has been written about the legal philosophy of Hans Kelsen, but his moral philosophy, especially his metaethics, has not been much discussed. In this article, I therefore want to consider Kelsen’s metaethics and discuss its implications for Kelsen’s legal philosophy. I argue (1) that although in his earlier writings, such as the first edition of Reine Rechtslehre, Kelsen was content to reject moral cognitivism in the shape of non-naturalism, and although he might have waivered between emotivism and metaethical relativism around the time of General Theory of Law and State, his mature view – as expressed in, and around the time of, the second edition of Reine Rechtslehre – was that of a metaethical relativist. I also argue (2) that his rejection of moral cognitivism was part of the reason why Kelsen insisted on methodological purity in the study of law in the sense of a separation of law and morality, and why he rejected natural law theory; and (3) that it was the reason why he defended the more general ideal of value-neutral science; and (4) that his more specific commitment to metaethical relativism was the reason why he defended democracy as well as tolerance in the shape of a constitutionally guaranteed freedom of thought. Next, I argue (5) that although it might seem difficult to square a commitment to metaethical relativism with the view that law is necessarily normative in the strong sense contemplated by Kelsen, the reason why Kelsen can nevertheless coherently hold that law is necessarily normative in this sense is that he conceives of the normativity of law not as a necessary property of law, but as consisting in the use of normative language by judges, attorneys, legal scholars, and others. Finally, I consider (6) the possibility that in his post-1960 phase Kelsen abandoned metaethical relativism for moral fictionalism, but argue (7) that, on the whole, a relativist interpretation of Kelsen’s late legal philosophy is to be preferred to a fictionalist interpretation.

Legal Theory Lexicon: Deference

Introduction

Because the first-year curriculum emphasizes common-law courses (property, contracts, torts), law students may not encounter the concept of "deference" early on.  Nonetheless, understanding deference is important in a wide variety of contexts, including standards of appellate review and judicial review of both legislation and administrative action.  This entry in the Legal Theory Lexicon provides a short introduction to the idea of deference.

As always, the Lexicon is aimed at law students with an interest in legal theory.

The Concept of Deference

What does "deference" mean?  The standard dictionary definitions define deference as "respect and esteem due a superior or an elder," but that is not the technical legal meaning of deference.  Pinning the concept of "deference" down in a precise way is tricky, but deference seems to involve a relationship between two legal actors or institutions, for example a court and a legislature.  Deference usually involves situations in which the deferring institution has some power over the institution to which it might defer.  Examples include (1) an appellate court reviewing the decision of a trial court, (2) a court reviewing the constitutionality of legislation, and (3) a court reviewing the legality of action by an administrative agency.

What does it mean to defer to a trial court, legislature, or administrative agency?  One approach to that question is to consider the opposite of deference.  Nondeferential appellate review of a trial court decision is "de novo": de novo review requires the appellate court to resolve the issue without regard to the action taken by the trial court.  Thus, de novo review of a trial court's conclusions of law gives no weight to the fact that the trial court has taken a position on the legal question.  But when it comes to a trial court judge's findings of fact, the appellate court does defer.  Findings of fact made by a trial court judge are reviewed under the deferential "clearly erroneous" standard.  The appellate court will only reverse the trial court if the appellate judges are convinced that the error is "clear."  The finding of fact may be wrong, but not clearly erroneous.  The clearly erroneous standard does give weight to the factual determination made by the trial court.

Degrees of Deference

The conventional wisdom is that deference is a matter of degree and not an off-on switch.  That is, deference is a scalar and not a binary.  For example, the standards of appellate review of trial court decisions are usually ranked as follows:

Most deferential: Abuse of discretion, applies to discretionary decisions by the trial court.

Intermediate deference: Clearly erroneous, applies to factual determinations by trial judges.

Least deferential: De novo, applies to issues of law.

There are interesting questions about the spectrum of deference.  One interpretation of the spectrum would assign probability values to degrees of deference.  For example, the de novo standard might be interpretation as requiring reversal of a trial court decision if the likelihood that it is incorrect is greater than 0.5.  The clearly erroneous standard might be assigned a value of 0.7 and the abuse of discretion standard could be 0.1.  But the probability interpretation might not be correct: it could be argued that the different standards  of appellate review are qualitatively different.

Deference in the Context of Judicial Review of Legislation

Another important context in which the concept of deference operates is judicial review of legislation for constitutionality.  For example, in the context of the Equal Protection Clause, the Supreme Court sometimes applies tiers of scrutiny.  Rational basis review is highly deferential.  In the most deferential form of rational basis review, legislation is upheld so long as the legislature could conceivably have had a legitimate aim in enacting the legislation and conceivably could have believed that the legislation was a rational means of pursuing that aim.  Intermediate scrutiny (which applies to gender) requires more, an important aim and a reasonable relationship between the means and end of the legislation.  Strict scrutiny (which applies to race) involves the lowest level of deference: legislation will be upheld only if there is a compelling state interesting and the legislative means are actually necessary to achieve this compelling end.

Rational basis scrutiny provides one of the paradigm cases of deference.  Even within this category, there seem to be different approaches.  The conceivable basis variant of rational basis review is so deferential that it is hard to imagine any legislation that would fail to satisfy the test.  But if the government is required to show that the legitimate state interest was the actual purpose of the legislation and that there is evidence supporting the means-ends relationship, then even a deferential standard of review might result in the invalidation of legislation.

Deference and Judicial Review of Agency Action

In recent years, the term "deference" arises most frequently in connection with the "Chevron doctrine," which involves judicial deference to agency interpretations of regulatory statutes.  The basic idea of Chevron deference is that courts should defer to the agency's interpretation of the statute, if the statute is unclear ("ambiguous") and the agency's interpretation is reasonable.  This form of deference is controversial, because it is in tension with the traditional conception of judicial role that assigns to courts the primary and ultimate authority for the interpretation and construction of legal texts.

Conclusion

There is much more to be said about the idea of deference, but I hope that this brief discussion is sufficient convey the basic idea of deference and to illustrate its application in a variety of contexts.  Additional reading is provided in the bibliography.

Related Lexicon Entries

• Legal Theory Lexicon 054: Standards of Review
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
• Legal Theory Lexicon 091: Discretion

Bibliography

• Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986).
• Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past, 78 Ind. L.J. 73 (2003).
• William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1120 (2008).
• Jacob E. Gersen & Adrian Vermeule, Chevron As A Voting Rule, 116 Yale L.J. 676 (2007).
• Jonathan T. Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary's Structural Role, 53 Stan. L. Rev. 1 (2000).
• Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.

(Last revised on January 17, 2021.)