Legal Theory Blog

Clermont on Evidence Theory

Kevin M. Clermont (Cornell Law School) has posted A General Theory of Evidence and Proof: Forming Beliefs in Truth on SSRN. Here is the abstract:

These excerpts of a book, to be published Oct. 5, 2024, reframe the fundamentals of decisionmaking under uncertainty. For almost a century, theorists have spoken of truth-finding in terms of probability. They have said things like some past fact was 51% certain or proclaimed that in a civil dispute a fact must be shown to exceed a 50% likelihood. But such talk is a misleading misconception. The reason is that traditional probability fails to distinguish epistemic uncertainty from aleatory uncertainty. This conflation leads to mistakes such as invoking probability’s product rules, which calculate a conjunction’s likelihood as being low. From there, the theorists have argued that in a myriad of ways, the law violates the probability calculus unforgivably.

Today, other theorists are newly realizing that in large part the law does not deal in probability. They now can defend the way that law has found facts since long before the invention of probability and on to the present. They are also reevaluating such intuitive practices as those that humans use in daily life to combine inferences upon inferences. A hotly contested literature has emerged.

In a significant, comprehensive, and original contribution, this book develops a theoretical justification for the intuitive approaches that humans deploy across a broad range of decisionmaking. Instead of probability, the book focuses on degrees of belief that estimate, given the state of the evidence, how far a proposition has been fully proven. Instead of combining findings by the rules of probability, the book uses the rules of multivalent logic. The aim is to illuminate decisionmaking outside statistical analysis, showing that our ancient wisdom is in fact theoretically solid. The target is everyone interested in improving decisionmaking.

Lo on the Making of the Hong Kong Basic Law

P. Y. Lo (The University of Hong Kong) has posted The Making of the Hong Kong Basic Law (Ngoc Son Bui and Mara Malagodi (eds), Asian Comparative Constitutional Law, Vol 1: Constitution-Making (Hart, 2023)) on SSRN. Here is the abstract:

This Chapter, from the first edited volume in the Asian Comparative Constitutional Law series, sets out the cause and process in the drafting of the Hong Kong Basic Law between 1985 and 1990. The discussion in the Chapter shows that whilst the drafting of the Hong Kong Basic Law was led and dominated by the Central Authorities of the People's Republic of China, it was a relatively open and interactive exercise during which the Central Authorities were receptive to opinions from Hong Kong residents and also from the British administration, which continued to govern Hong Kong at the time and had an interest in the successful implementation of the Sino-British Joint Declaration that would restore Hong Kong in 1997 to the resumption of exercise of Chinese sovereignty, for the purpose of giving the product the best possible chance in guaranteeing Hong Kong's stability, prosperity, and capitalist economy and way of life. This Chapter also highlights 'deferred matters' in the Hong Kong Basic Law as drafted, including a progressive framework for developing the political system towards the 'ultimate goal' of electing the Chief Executive and the legislature by 'universal suffrage' and a designation on the Hong Kong authorities the task of enacting legislation safeguarding national security, which have turned out to be the causes of the current situation of the Hong Kong Special Administrative Region of the People's Republic of China.

Satta on Same-Sex Wedding Service Refusals & 303 Creative

Mark Satta (Wayne State University Law School; Wayne State University - College of Arts and Sciences) has posted Same-Sex Wedding Service Refusals and Obergefell's "Decent and Honorable" Dicta (Wayne State University Law School Research Paper (forthcoming)) on SSRN. Here is the abstract:

Does the holding in 303 Creative v. Elenis give public accommodations a constitutional right to refuse to provide expressive services for interracial couples’ weddings or for couples’ weddings in which one or both partners are disabled? As indicated by questions Justice Sotomayor raised about this issue during oral arguments, this is one of the troubling new legal questions created by the Supreme Court’s decision in 303 Creative. There the Court held that a Colorado web design business had a First Amendment free speech right to refuse to provide wedding website services for same-sex couples’ weddings, even though Colorado law protects against sexual-orientation discrimination in public accommodations and Colorado concluded that the web design business’ refusal to provide such services violated its law.

Understandably, both the Court’s conservative and liberal justices appear wary of extending the Court’s holding to provide a right to refuse service for other protected couples’ weddings. Yet, so far, advocates of the Court’s decision in 303 Creative have been unable to give a plausible explanation as to why it does not so extend. Often, when pressed, such advocates appeal to Justice Kennedy’s statement, made in dicta, in Obergefell v. Hodges that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” My aim in this paper is to show why the arguments based on such appeals fail. All such arguments violate longstanding core aspects of either the Court’s First Amendment or public accommodation law precedent. And all such attempts undermine the dignity of LGBTQ people and subject them to an inferior class status. In light of this, I argue that the best way out is for the Court to narrow 303 Creative’s holding to cover only cases where a state is seeking to enforce its public accommodation law for the purposes the Court attributed to Colorado in 303 Creative. Because states virtually never seek to enforce their public accommodation laws for such reasons, 303 Creative would be unlikely to be controlling in future cases as a result.

Yablon & Clinger on Purcell Principles for State Courts

Robert Yablon (University of Wisconsin Law School) & Derek Clinger (University of Wisconsin Law School) have posted Purcell Principles for State Courts on SSRN. Here is the abstract:

In recent years, the U.S. Supreme Court has stressed that federal courts ordinarily should not issue remedies, such as preliminary injunctions, that would alter the rules for an impending election. This is known as the Purcell principle, and it frequently stymies litigants who seek to redress legal violations ahead of an election.

Existing commentary on Purcell, most of it critical, has focused on the federal level. A large and growing share of election litigation, however, occurs in state courts. This Essay offers the first deep dive into pre-election remedial practice and the status of the Purcell principle in state-level litigation. Based on a review of every reported state court decision to have cited Purcell, our key descriptive takeaway is that state courts are not mirroring the U.S. Supreme Court’s strong aversion to pre-election relief. Instead, they have taken a more nuanced and context-specific approach. Conceptually, we explain that there is good reason for state courts to chart their own course in this area—something they are free to do since the Purcell principle is an equitable doctrine by and for federal courts. The federalism concerns that partly undergird the Purcell principle do not apply to state courts, and state courts have distinctive powers and duties that make a blanket presumption against pre-election intervention inappropriate.

Prescriptively, building on existing state case law and academic commentary, we identify several considerations for state courts to weigh as they decide whether to grant pre-election remedies. These considerations—Purcell principles for state courts—aim to get at each case’s underlying equities and help courts discern whether, on balance, intervention ahead of an election is warranted. The Essay concludes by discussing how the federal Purcell principle impacts U.S. Supreme Court review of state court remedial rulings, such as when litigants ask the Court for emergency relief on the ground that a state court violated the U.S. Constitution’s Elections Clause.

Sciullo on Critical Race Theory

Nick J. Sciullo (Texas A&M University - Kingsville) has posted Defending Critical Race Theory on SSRN. Here is the abstract:

Recent attacks on Critical Race Theory (CRT) have caused wide-ranging discussions about CRT in a diverse number of disciplines, throughout all grade levels, and around the world in media. While CRT adherents have long wished for more engagement with CRT, the recent firestorm of attacks has been surprising at best, and horribly worrisome and frightening at worst. Efforts to ban CRT in schools, while likely not having much effect given the improbability that CRT is taught in any K-12 schools, have politicized CRT in new ways (though like all education, it was always political). Moreover, this engagement is clearly not in ways that many of us writing in or about this tradition imagined, yet the increasing politicization of CRT has raised interest in the theory well beyond the colleges, universities, and graduate and professional schools where it was, at best, occasionally taught. Arguably, conservatives created a debate where there is none and was none. Or, as Donald Earl Collins puts it, this is a discussion not about CRT, but rather about “critical race fact.”

This Article sets out to defend CRT from the criticisms levied by conservative and Republican politicians in the United States as well as other pundits and pontificators. These criticisms have always existed, but they have now been taken up in popular media in a confusing menagerie of political fervor. Of course, the criticisms of CRT are almost always based on a misunderstanding of the idea. Each Part below takes up a different criticism and presents evidence that the criticism is simply not true by using both what critical race theorists have written, as well as what others who have experience teaching it in the United States’ schools, colleges, and universities have claimed. It is possible, one supposes, that the country’s alleged critical-race-teaching kindergarten teachers are covertly inserting CRT into our five-year-olds’ lessons on colors, but this seems unlikely.

Keren on Parental Rights and Transgender Affirming Care

Hila Keren (Southwestern Law School) has posted Due Care in A Conservative Court on SSRN. Here is the abstract:

By the end of its 2024-25 term, the Supreme Court will decide the constitutionality of statutory bans on providing necessary treatments to trans minors, already in place in about half of the Nation’s states. Although many courts have found such treatment bans unconstitutional, the Six Circuit affirmed bans enacted by Tennessee and Kentucky in L.W. v. Skremtti, rejecting two constitutional challenges: under the Equal Protection Clause and the Due Process Clause. At this juncture, the Supreme Court has only agreed to review the arguments that the treatment bans discriminate on the basis of sex and transgender status in violation of the Equal Protection Clause. This Article is the first to explain why considering discrimination claims alone would put trans adolescents at risk, urging the Court to expand its review and consider how acutely the bans infringe on fundamental parental rights protected under the Due Process Clause.

Because minors’ health is at stake and the bans’ validity hinges on a Court currently dominated by conservative Justices, this Article takes a pragmatic approach aimed at overcoming partisan divisions. It examines the constitutionality of the bans from a conservative perspective, excavating and analyzing numerous external resources, from briefs to websites to press releases. This original inquiry shows that reviewing the treatment bans through the lens of parental rights offers a path to finding a common judicial ground where even the most compelling discrimination arguments might fail. Therefore, this Article focuses on illuminating why and how a nonpartisan consensus around parents’ right to seek treatment for their children might be within reach when the interests of parents and children align.

For example, the Article uncovers conservative opposition to the treatment bans due to worries about state intervention in parental decisions regarding issues like vaccines or homeschooling. It also documents a rising campaign that relies on parents’ rights to promote traditional views of gender identity and resist state intrusions into the family sphere. Delving even deeper, this Article illuminates conflicting priorities on the right side of the political map that could persuade Justices who are committed to limiting state power more than to religious causes to join their liberal colleagues in invalidating the treatment bans, if not because they are discriminatory, at least because they display an unprecedented form of government overreach.

Based on those findings and insights, this Article argues that a proper review of Skrmetti, which considers the bans’ infringement on parental rights, could allow the Court to reject a divisive ideology-based approach, adhere to the Constitution, and—most importantly—ensure that minors, regardless of their gender identity, receive the treatments they need.

Vishnubhakat on "An Organizational Theory of International Technology Transfer" by Lee

Saurabh Vishnubhakat (Yeshiva University - Benjamin N. Cardozo School of Law; Duke University School of Law) has posted Bounded Entities and (Some of) Their Discontents on SSRN. Here is the abstract:

In his new article An Organizational Theory of International Technology Transfer, Professor Peter Lee offers two richly detailed accounts at once. One is a novel theoretical framework of “bounded entities” that generalizes both from the classic theory of the firm and, of more recent vintage, from the knowledge-based theory of the firm to specify a broader notion of organizations that are bounded in the sense of robust internal integration through corporate or contractual means. In short, such entities are not firms but resemble them in consequential ways. The other account is a practical elaboration of bounded entities that are multinational in nature and so can facilitate cross-border technology transfer. The result is an important contribution to literatures on intellectual property, industrial organization, and the economics of information goods. This Essay offers some initial points of entry into Professor Lee’s arguments. First is to contest his reliance on a view of nonrivalry that, widely held though it is, recent theoretical work calls into question. Second, and related, is to probe a sanguine view about welfare effects from forced technology transfer, especially in the context of U.S.-China relations. Third is to suggest that the present conception of bounded entities as a matter of organizational form has important antecedents in other legal contexts including sovereignty, culture, and personhood—and that these other contexts offer interesting possibilities for further theoretical development.

Bambauer & Zarsky on AI Fairness

Jane R. Bambauer (University of Florida Levin College of Law; University of Florida - College of Journalism & Communication; University of Arizona - James E. Rogers College of Law) & Tal Zarsky (University of Haifa - Faculty of Law) have posted Fair-Enough AI (Forthcoming in the Yale Journal of Law & Technology) on SSRN. Here is the abstract:

AI is unfair. It can be inaccurate (in several ways), biased (in several ways, and to several groups), disproportionate, exploitable, and opaque. The policy world is awash in AI governance and ethics frameworks, but these lack concrete standards and provide little guidance on how to select between competing versions of (un)fairness. In other words, they abdicate the responsibility of setting priorities among values. At the same time, though, the very same guidance documents harshly criticize existing AI and algorithmic tools for deficiencies in some particular aspect of fairness without considering whether alternative designs that fix the problem would make the system more "unfair" in other respects. Ad-hoc criticism is abundant and hard to predict.

This article offers a strategy for AI ethics officers to navigate the "abdication/ad-hoc criticism" problems in the regulatory landscape. After explaining the meaning and sources of the most important forms of AI unfairness, we argue that AI developers should make the inevitable tradeoffs between fairness goals as consciously and well-informed as the context will allow. Beyond that, in the absence of clear legal requirements to prioritize one form of fairness over another, an algorithm that makes well-considered trade-offs between values should be deemed "fair enough".

Highly recommended.

Gardner on Assumption of Risk and Tort

Jodi Gardner (University of Auckland - Faculty of Law; National University of Singapore (NUS); University of Cambridge) has posted Rethinking Risk-Taking: The Death of Volenti? on SSRN. Here is the abstract:

Volenti non fit injuria allows a negligent defendant to escape liability by showing that the claimant voluntarily and willingly accepted the risk in question. This article combines the theoretical limitations of the volenti defence with a case analysis of how its application has played out in the "real world", and argues it is not fit for modern tort law. The defence has a controversial and chequered history, being described as a "so-called principle. .. of little help: indeed, it is confusing, unnecessary, and if we are not careful, it will lead us to the wrong outcome". It is submitted that volenti is based on unjustified concepts of people agreeing to risks, leads to harmful outcomes and that the defence does not fit with current approaches to tort liability. This article therefore concludes that the harmful outcomes of the volenti defence far exceed any potential benefits provided, and the defence should therefore be abolished.

Oleske on Green & Epstein on Public Accommodations Law and the 14th Amendment

James M. Oleske (Lewis & Clark College Paul L Boley Library; Lewis & Clark College - Lewis & Clark Law School) has posted Law Office History and the Unrelenting Attack on Public Accommodations Law (32 William & Mary Bill of Rights Journal 959 (2024)) on SSRN. Here is the abstract:

This short essay responds to historical claims made by Professors Richard Epstein and Christopher Green in support of their view that the Fourteenth Amendment precludes application of public accommodations laws to non-monopoly businesses. The Epstein-Green argument was presented in amicus briefs filed in 303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and Professor Green recently published an essay elaborating upon the argument in response to the dissent in 303 Creative. Notably absent from Green’s essay, which he describes as “historically grounded,” is any discussion of either (1) the state public accommodations laws adopted in the wake of the Fourteenth Amendment’s ratification, or (2) the many late-19th and early-20th Century cases approving application of those laws to non-monopoly businesses. Also absent is an acknowledgment of Lord Chief Justice Holt’s earlier and explicit rejection of a monopoly-based limit on the common law duties of innkeepers and common carriers. Instead, Green, following Epstein, primarily relies on caselaw and commentary that involves rate regulation, not public accommodations laws or their common law precursors. And the Epstein-Green argument ultimately rests on a logical fallacy: the assertion that because the existence of monopoly power was sufficient to warrant rate-regulation under the common law, the existence of monopoly power must be a constitutionally necessary predicate to the legislative imposition of a nondiscrimination requirement on businesses that offer their goods and services to the general public. Although there is support for the former proposition in cases and commentary predating the end of Reconstruction, Epstein and Green identify no authority for the latter proposition in that period. And the early public accommodations cases discussed in this essay are more than sufficient to refute it.

Green on Collective Action and Individual Complaints

Tristin K. Green (Loyola Law School Los Angeles) has posted Collective Complaint (Forthcoming in American Journal of Law and Equality, Volume 4 (2024)) on SSRN. Here is the abstract:

This Essay puts the popular idea of collective action together with the law of complaint to tell a cautionary tale. Calls for collective action in modern progressive circles tend to promote a vision of collective as group-based activity, of people physically, intellectually, and emotionally working together. As captivating as this vision is, it misses that individuals can act for collective good even when they are not acting through group-based action. The Essay unpacks the problem of individualizing complaint in antidiscrimination law as having two aspects: one of isolating individuals from each other and the other of atomizing individuals’ stories, pressing individuals into telling narrow stories about discrimination and thereby to seek narrow solutions. Collective action understood as working together focuses attention on the isolating without adequately attending to the atomizing. Additionally, overemphasis on collective as group-based activity risks disempowering individuals who seek to raise questions about systemic practices and who seek to effect more systemic institutional change. The Essay maps a project of resituating collective on broader footing, facilitating individual efforts to act for groups even if they do not necessarily act in groups.

Gold & Smith on Equity and Corporate Law

Andrew S. Gold (University of California, Irvine School of Law) & Henry E. Smith (Harvard Law School) have posted The Equity in Corporate Law (Notre Dame Law Review, Volume 100, 2024-2025, Forthcoming) on SSRN. Here is the abstract:

It is no secret that equity is a central part of corporate law. Yet, a fuller appreciation of what equity means for corporate law is still lacking. This article offers a new account of corporate law's equity, showing that it is a kind of meta-law-or law about law-which operates ex post to address polycentric problems, conflicting rights, and opportunism. As we argue, much of the structure of corporate law-its architecture-is explained by the need for a robust equity that can intervene where needed, while also avoiding the dangers of unconstrained judicial discretion. Corporate law maintains a careful balance, one that constantly updates, to avoid both pitfalls. Efforts to strike that balance explain various features of corporate law, including: fiduciary duties, the business judgment rule, derivative litigation, the doctrine of independent legal significance, different standards of review, and even the way corporate law has changed. As we will show, this account also offers something importantly different from conventional theories of corporate law, such as the nexus of contracts approach. Focusing on the equity in corporate law gives us a distinctive picture of both corporate law and its evolution.

Highly recommended.

Buffington on Trump v. United States

Joe Buffington (Albany Law School) has posted It's "Official": The Supreme Court Knew the Trump Immunity Ruling Was Dangerous on SSRN. Here is the abstract:

Critics have observed that the Supreme Court’s decision in Trump v. United States – which gave the former president immunity from criminal prosecution for his “official acts” – is hardly a textualist holding for the Court’s six conservative justices, each of whom endorsed the decision while elsewhere promoting textualism as an optimal mode of jurisprudence. In this essay, I argue that the Trump immunity ruling is not only a-textual and in that sense anti-textualist, it contradicts the conversative justices’ usual linguistic caution by introducing avoidable ambiguity into the rule of law. I demonstrate how adding the words “official” and “unofficial” to the constitutional analysis of presidential immunity is dangerous, and I offer evidence that the Court’s conservative justices were aware of this danger and deliberately disregarded it.

Nagy on War Damage and the Russia-Ukraine Bilateral Investment Treaty

Csongor István Nagy (University of Galway - School of Law; HUN-REN Centre for Social Sciences, Institute for Legal Studies) has posted Can Ukrainians Claim Compensation for War Damage under the Russia-Ukraine BIT? An International Investment Law Experiment (University of Pennsylvania Journal of International Law, 2025, Volume 46, No. 4) on SSRN. Here is the abstract:

In February 2022, Russia launched a full-scale war against Ukraine. The aggression was condemned by most of the international community as an act in gross violation of international law and gave rise to a deliberation about the reparation of war damage. This paper aims to contribute to this discourse by exploring an over-looked perspective. It demonstrates that international investment law, and more specifically the Russia-Ukraine BIT (RUBIT), can effectively be used by Ukrainian natural and legal persons to claim damages by means of investment arbitration. The proposal’s practical value is reinforced by the availability of significant (and currently frozen) enforceable assets outside Russia.

The paper’s argument is presented as follows. Section 2 demonstrates that the RUBIT may apply to war damage ratione materiae, ratione personae and ratione temporis. Section 3 inquires if and to what extent war damage comes under the scope of the RUBIT ratione loci and demonstrates that the treaty’s territorial scope may cover a significant part of the war damage in Ukraine. Section 4 explores the matrix of damage clusters from the perspective of territorial scope. Section 5 demonstrates how the RUBIT can be used to address mass damage claims and addresses the procedural, institutional and technical aspects of the proposal. Section 6 demonstrates the practicality of applying the RUBIT for the purpose of compensation: it shows that the ensuing investment awards may be effectively enforced against a part of the frozen Russian assets. Section 7 contains the paper’s closing thoughts.

Legal Theory Lexicon: Speaker's Meaning and Sentence Meaning

Introduction

Law students soon learn that the interpretation of legal texts is one of the most important things that lawyers and judges do.  In a previous Legal Theory Lexicon entry, a distinction was made between "interpretation" and "construction."  Although we could use other words to express the distinction, it expresses an important conceptual difference between two activities: (1) discovering the "meaning" of a legal text, and (2) determining the legal effect given to the text.  Thus, statutory interpretation aims to recover the meaning of the words and phrases of a statute in context, whereas statutory construction provides the legal norms that courts will use to apply the text to the facts of a particular case.

With this distinction in mind, we can ask the question, "How do we figure out the meaning of a legal text?" In some cases, we can tell what the statute unambiguously means without asking the "how" question.  But other cases are more difficult.  When there is an argument about what a statute means, it may be helpful to turn to theoretical linguistics and the philosophy of language for an a theory of communication.

One such theory was developed by the philosopher Paul Grice.  A key component of Grice's theory is the distinction between "speaker's meaning" and "sentence meaning."  Although most lawyers have never heard of Grice, every lawyer has an intuitive grasp of the difference between literal meaning (the bare meaning of the words as combined by syntax and punctuation) and the meaning that a speaker or author intended to convey in context.  This entry in the Lexicon provides a basic introduction to Grice's ideas.  As always, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

Speaker's Meaning

The meaning that a speaker or author intended to convey to a listener or reader is what Grice calls "speaker's meaning."  And Grice developed a very precise and illuminating theory.  Grice uses the word "utterance" to refer to oral communications, and I will use that word as well.  For Grice the speaker's meaning of an utterance is the meaning that the speaker intended to convey to the listener via the listener's grasp of the speaker's communicative intentions.

Wow!  That sounds complicated!  Let's unpack Grice's formulation step by step.  We can start with an example.  It is a Tuesday and the following exchange takes place:

Ben says to Alice: "Pizza day!"

Alice says, "Great!  See you there."

Suppose that in context, when Ben says "Pizza day!" he means to say: "Today is the day that we usually have Pizza at Lampo's at noon, and I don't have a conflict."  But he doesn't have to spell it out, because Alice knows that Ben and Alice have Pizza at Lampo's every Tuesday at noon unless Ben has a meeting.  When Ben says "Pizza day," Alice relies on her background knowledge and grasps that by saying "Pizza day!" Ben is conveying that he plans to meet her for Pizza.  By replying "Great!  See you there", Alice conveys that she is pleased and that she will be at Lampo's at noon today.

Notice that the content communicated by Ben and Alice is much richer in content than the literal meaning of their utterances.  This brings us to the idea of "sentence meaning."

Sentence Meaning

Grice contrasted the speaker's meaning of a particular utterance on a particular occasion with sentence meaning.  The sentence meaning of an utterance is simply the literal meaning of the words, phrases, and sentences.  The literal meaning of "Pizza day" is very sparse.  Pizza is a food consisting of a crust and toppings such tomato sauce and cheese.  Day is a unit of time.  The phrase "pizza day" could mean any number of things.  It might be a day upon which there are pizzas--pizza day at the cafeteria.  Or it might be a day when a particular person, Vibiana, ate a slice of pizza.  Or it could be the day when the refrigerated truck delivers frozen pizzas to the market.  The expression "pizza day" is incomplete when it is considered out of context.  It has meaning, but that meaning is sparse.

Of course, "pizza day" isn't even a grammatically complete sentence, but we can imagine Ben saying, "Today is pizza day," which is a grammatically complete sentence.  Notice, however, that the literal meaning of "Today is pizza day." is still ambiguous.  It could express that idea that today is the day Ben and Alice have pizza for lunch or the day when the truck delivers frozen pizzas to the market.  This grammatically complete sentence does not express a complete thought if it is considered without any context.

The account of sentence meaning that I have just offered is simplified.  Grice's own explication of this idea changed over time and was expressed in technical language.  But I hope that I have conveyed the gist of his idea.  The speaker's meaning of an utterance is the meaning of the utterance on a particular occasion--the meaning that the speaker intended to convey.  The sentence meaning of an utterance is the meaning that the words have generally and is a function of the conventional semantic meanings of word and phrases as combined by the conventions and regularities of syntax (and in the case of written communication, punctuation as well).

The Relevance of Speaker's Meaning and Sentence Meaning to Legal Interpretation

There are many different theories of legal interpretation and their vocabulary differs with context.  Let's use statutory interpretation and construction as an example.  There are three basic views of statutory interpretation:

• Textualism: the legal norms that implement a statute should be determined by plain meaning of the statutory text.
• Purposivism: the legal norms that implement a statute should be determined by the objective purpose of the statute, where objective purpose is understood as the purpose that an ideal legislature would have had in enacting the statutory text.
• Intentionalism: the legal norms that implement a statue should be determined by the subjective policy preferences of the actual legislators that enacted the statute.

The distinction between speaker's meaning and sentence meaning allows us to clarify these theories.  For example, textualism is sometimes criticized on the grounds that textualists are literalists who ignore context; in other words, the critics assume that textualists aim to recover the sentence meaning of the statutory text.  Textualists themselves deny this.  They argue that they are concerned with the meaning of the statutory text but only for the purpose of clarifying the meaning that the statute conveyed.  In other words, they are aiming to recover something that is more like speaker's meaning than it is like sentence meaning.  Purposivism, on the other hand, is only indirectly concerned with the meaning of the statute: because purposivists are after an idealized purpose they may sometimes prefer to focus literal meanings (sentence meaning) to contextualized meanings (speaker's meaning)--because the very sparseness of sentence meaning creates an empty vessel into which a judge's version of objective purpose may be poured.

Likewise, the idea of speaker's meaning helps us to understand intentionalism.  Intentionalism is concerned with intentions, but the kind of intention is not the communicative intentions that Grice's idea of speaker's meaning uses.  Instead, intentionalists are concerned with policy preferences.  This distinction is important.  If intentionalism aimed to recover the communicative intentions of the legislature, it would actually be a form of textualism.  In my experience, it is common for discussions of statutory interpretation to equivocate on this issue.  When that happens, conceptual confusion results.

Conclusion

There is much more to be said about the speaker's meaning, sentence meaning, and legal communication, but I hope that this entry in the Lexicon has given readers a basic understanding of Grice's distinction and the ways in which it can shed light on questions of legal theory.

Related Lexicon Entries

• Legal Theory Lexicon 021: Speech Acts
• Legal Theory Lexicon 022: Intention
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 051: Vagueness and Ambiguity
• Legal Theory Lexicon 063: Interpretation and Construction
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 079: Communicative Content and Legal Content
• Legal Theory Lexicon 094: Words and Concepts

Bibliography

• H.P. Grice, Utterer's Meaning, Sentence-Meaning, and Word-Meaning, 4 Foundations of Language 225 (1968).
• Paul Grice, Studies in the Way of Words (1989).
• Lawrence B. Solum, Contractual Communication, 133 Harv. L. Rev. F. 23 (2019).

(Last modified on October 6, 2024.)

Legal Theory Bookworm: "International Law and the Principle of Non-Intervention" by Roscini

The Legal Theory Bookworm recommends International Law and the Principle of Non-Intervention: History, Theory, and Interactions with Other Principles by Marco Roscini. Here is a description:

The principle of non-intervention is one of the most venerable principles of international law. Although not expressly mentioned in the Charter of the United Nations, at least as an inter-state prohibition, the principle currently appears in a plethora of treaties and UN General Assembly resolutions and has been invoked by states of all geographical and political denominations. Despite this, the determination of its exact content has remained an enigma.

International Law and the Principle of Non-Intervention: History, Theory, and Interactions with Other PrinciplesÂsolves this enigma by exploring what constitutes an 'intervention' in international law and when interventions are unlawful. These questions are approached from three different perspectives, which are reflected in the book's structure: historical, theoretical, and systemic. Through a comprehensive survey of primary documents and of over 200 cases of intervention from the mid-18th century to the present day, as well as an extensive literature search, this work provides an in-depth analysis of the principle of non-intervention which links it to fundamental notions of international law, including sovereignty, use of force, self-determination, and human rights protection.

Download of the Week: "The Crime of Aggression" by Luban

The Download of the Week is The Crime of Aggression: Its Nature, the Leadership Clause, and the Paradox of Immunity by David Luban (Georgetown University Law Center). Here is the abstract:

The paper, written for a research handbook, critically surveys some fundamental philosophical, historical, and doctrinal issues in the crime of aggression. The two introductory sections set the theoretical issues in the context of Russia’s invasion of Ukraine, and explain the origins of criminalizing aggression under the heading of “crimes against peace.” Section 3 explores an ambiguity between aggression as first use of force and aggression as unprovoked use of force, while section 4 discusses the doctrinal distinction between acts of aggression and wars of aggression.

Sections 5 and 6 turn to the theory of aggression. Section 5 examines modern versus early modern just war theorists’ views of just cause. Section 6 explores various theories of what exactly makes aggressive war so evil that it belongs in the pantheon of core crimes, side by side with genocide, crimes against humanity, and other war crimes. The basic question is whether aggression is fundamentally a crime against states, a crime against human rights, or a crime against peace itself. I reject the first, statist, version, and endorse the human rights version. I examine three versions of the view that aggressive war is fundamentally about its human costs: that aggressive wars lead to atrocities (Trainin); that aggressive wars lead more generally to unjustified killings (Dannenbaum); and that aggressive wars lead to both unjustified killings by the aggressor, and to unnecessary killings that include the justified killings of aggressors’ troops by defenders (Mégret). As for crimes against peace, I argue that this theory of aggression’s evils comes in two “flavors,” one of which has justly been criticized by postcolonial writers, and one of which I think is legitimate. The former originates in Judge Pal’s famous dissenting opinion in the IMTFE, and argues that criminalizing aggression is a move by colonial powers to freeze the oppressive status quo. The more legitimate version is that in an age of catastrophically destructive weapons, the risks of escalation in armed conflict –the threat that conflicts will spiral into world wars–are simply too great in human terms. Thus, the legitimate version of “crimes against peace” is part and parcel of the human rights analysis.

The final sections break new ground. Section 7 considers whether aggression is solely a leadership crime. Everyone agrees that it would be wrong to punish ordinary soldiers for the crime of aggression launched by their leaders. The questions is why, and it is not easy to answer. Examining it brings us to a contemporary dispute over which leaders can be prosecuted: only those who control or direct the aggressive policies (as per the ICC’s Rome Statute), or others as well, who “shape or influence” the policy without necessarily directing it (as the customary rule used to be formulated). I argue against any narrowing of the leadership clause.

Section 8 explores the “paradox of immunity”: Under the legal principle of sovereign immunity, apex leaders are immune from prosecution in the courts of another state. But under the narrow leadership clause, only apex leaders can be prosecuted. Here I argue for a surprising conclusion: that in fact there never was a customary rule of immunity for the crime of aggression. If so, the paradox of immunity disappears. This resolution also helps cut the Gordian knot of a current debate about whether a relatively small subset of states (the EU, perhaps) can form an aggression tribunal and call it “international.”

Highly recommended.

Schanke, Bhattacharya, & Sanyal on Social Justice Chatbots and Humanization

Scott Schanke (University of Wisconsin Milwaukee), Siddharth Bhattacharya (George Mason University, School of Business), & Pallab Sanyal (George Mason University - Department of Information Systems and Operations Management) have posted Evaluating the Impact of Humanization and Emotion in Social Justice Chatbots: Evidence from a Randomized Field Experiment on SSRN. Here is the abstract:

In response to the significant Social Justice movements of 2020, many organizations are seeking sustainable methods of engagement amid dwindling resources. This study investigates the efficacy of Artificial Intelligence (AI) chatbots designed for nonprofits, diverging from traditional business-centric AI-based conversational agents. By collaborating with a Minneapolis-based social justice organization, the research examines the role of emotional versus informational appeals and anthropomorphism in chatbot interactions within a randomized field experiment involving 276 participants. Notably, we find that the number of emotional appeals in the interaction and increased anthropomorphismboth negatively impact conversion. For anthropomorphism, we surmise conversational expectations of a real human drive the participants to convert less. We also find that increasing emotional appeals evoke a highly emotional response, leading to reactance which also leads to lower conversion. These findings suggest that traditional means of persuasion, social cues, and emotional appeals might not fit social justice contexts and may even harm donor interactions. Finally, our findings indicate that the order of engagement solicitations matters:soliciting donations at the end of a sequence of asks results in higher conversion. The study provides valuable insights for chatbot design tailored to social justice and charitable giving organizations and emphasizes crafting appropriate AI-driven messaging for effective outreach.

Barker on Insuring Against Punitive Damages

Kit Barker (University of Queensland - TC Beirne School of Law) has posted Insured Punishment: Lamb v Cotogno (Chapter 6 in J Goudkamp and E Katsampouka (eds) Landmark Cases in the Law of Punitive Damages (Hart, 2023) pp 99-128) on SSRN. Here is the abstract:

This piece examines the potentially paradoxical question of whether it is (or should be) possible for a wrongdoer to insure himself or herself against an award of punitive damages. It does so through a detailed examination of the curious case of Lamb v Cotogno, decided by the High Court of Australia in 1987, in which a punitive award was upheld against a defendant who was assumed by all concerned to be fully insured for his tortious wrong.

The piece suggests that the reasons given by the High Court in that case for upholding the award (general deterrence of others, the prevention of vigilantism and the award's expressive, condemnatory value) are strained, to say the least, and that, when the pleading and proceedings of the case are properly understood, a modest sum of aggravated compensatory damages would have been much more appropriate. Although the precise question asked in Lamb is unlikely to be repeated in Australia any time soon, the High Court's reasoning about the underlying justifications for awards continues to have reverberations about the way in which they are understood in a wider range of cases.

The piece contains insights and historical material gratefully gleaned from two counsel who were originally party to the pleading of the case and defence in Lamb. It also contains a wider-ranging review of the insurability of punitive awards across a broader range of common law jurisdictions, both as a matter of fact and law. It further considers which, if any, of the aims of 'punishment' remain credibly achievable when the persons punished is insulated against an award's financial effects.

Huneeus on Non-Human Rights in Latin America

Alexandra Valeria Huneeus (University of Wisconsin Law School) has posted The Three Faces of Non-Human Rights (Oxford Handbook on Comparative Human Rights, Neha Jain and Mila Verstaag, eds) on SSRN. Here is the abstract:

This chapter analyzes the evolving relation of non-human rights and human rights law in Latin America, the region where they first emerged and have undergone the most development, and where human rights law plays a salient role at the domestic and regional level. A review of judgments, laws, and social movements reveals that justifications for extending legal rights beyond humans fall into three categories. First are claims based on the species-level attributes of an animal or other creature: there is a quality of the being in question that demands a certain type of ethical treatment. This type of justification echoes the structure of most arguments for human rights, including deontological, utilitarian, and capabilities approaches. But it extends the protection of rights to animals that share with humans an essential quality, such as the ability to suffer. Second are claims based on legal pluralism. Law in a multicultural state should give voice to the views of indigenous and tribal peoples as well as Western legal traditions. If indigenous or other peoples so request, states should grant legal personhood and rights to natural features or “earth beings” that non-Western peoples hold as persons, or kin, and with whom they live in relation. This is a form of epistemic justice that also provides indigenous peoples and other communities an extra measure of protection from extractive corporate activities. Third are claims based on a new ontology: Some argue that it is time to rethink the most fundamental commitments of Western thought and, specifically, to give a different moral meaning to the distinction and relation between humans and non-humans, as well as the distinction and relation between the living and non-living. Such a change is necessary not (only) as a matter of epistemic justice or legal pluralism, but because it more closely reflects emerging moral intuitions, and because it may help us forge a more sustainable way of life. Each of the three types of claims plays out in different ways in its relationship to human rights. While the first and second can be cast as extensions of existing human rights doctrine, the third aims to radically shift our major premises but is struggling to find legal coherence. The chapter’s main contribution is to introduce a typology of nature rights and use it to analyze the relation of nature rights and human rights. Scholarship needs to consider these differences in the argumentative structure because they have implications for many of the questions that we are asking of this emerging body of law, including questions of effectiveness, implementation, and impact on other areas of law.

The argument unfolds in three sections after the introduction. The first section introduces the three types of justification that underlie non-human rights laws and jurisprudence in Latin America. The second examines interactions between each type and human rights law, drawing on recent examples from Latin American judicial dockets. The final section concludes with a look towards next steps in non-human rights scholarship.

Hennington on Risk Assessment Algorithms and Pretrial Detention

Matt Hennington (University of Mississippi School of Law) has posted Show Me the Numbers: Due Process and Equal Protection Challenges to the Use of Risk Assessment Algorithms in the Pretrial Context on SSRN. Here is the abstract:

Technology brings great advances; however, in the legal field, technology can become used as a tool to perpetuate racial bias. Risk assessment algorithms provide that threat since judges have come to rely on them in various contexts. However, in the pretrial context, judges face the risk of incarcerating an innocent person based on a numerical risk assessment score, which deprives the defendant of his or her individuality and possibly perpetuates the assumption that people of color commit more crimes. Therefore, incorporating a critical race theory framework, a Due Process challenge to the use of these tools exists in the right to effective assistance of counsel as these tools provide an unfair advantage to the prosecution by hampering the defense counsel’s ability to present a narrative. Furthermore, a potential Equal Protection challenge exists to tools that explicitly use gender as a factor. Although no Equal Protection claim exists for a disparate impact of these tools on minority populations, the disparate impact has important public policy considerations beyond Equal Protection in efforts to reduce crime and foster trust between the police and minority communities. Ultimately, the use of risk assessment algorithms must comply with the Constitution, and the stories of each individual defendant should always have the chance to be heard.

Becker & Ahlborn on Irish Constitutional Identity and International Investment Agreements

Michael A Becker (Trinity College Dublin - School of Law) & Christiane Ahlborn (Trinity College Dublin) have posted Protecting Irish Constitutional Identity on the International Plane: Costello v Government of Ireland on SSRN. Here is the abstract:

In Costello v Government of Ireland, the Irish Supreme Court held that ratification of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its member states would infringe upon Irish juridical sovereignty. The judgment reflects a more general trend of rejecting international investment agreements . With the aim of drawing out the implications of Costello for Ireland’s international relations, this article assesses Costello in its comparative European and international context, taking into account the interaction between different legal orders. Part II discusses the relationship between sovereignty and constitutional identity, which is central to the Supreme Court’s finding that ratification of CETA would infringe the Irish Constitution. Based on the argument that CETA operates as a matter of international law, Part III explains that CETA does not establish a parallel jurisdiction that would deal with the same disputes as Irish courts under Article 34 of the Constitution. Part IV examines the Supreme Court’s reasoning in light of Ireland’s other international commitments, including its consent to dispute settlement by international courts and tribunals such as the European Court of Human Rights and the International Court of Justice. Part V discusses difficulties with the proposal to amend the 2010 Arbitration Act and suggests alternative ways of reconciling CETA with Irish sovereignty, particularly via a requirement to exhaust local remedies before pursuing claims before a CETA tribunal.

Recommended!

Tolmie & Stubbs on Battered Woman Syndrome and Gender Bias

Julia Tolmie (University of Auckland - Faculty of Law) & Julie Stubbs (University of New South Wales (UNSW, Australia) - Faculty of Law) have posted Battered Woman Syndrome in Australia: A Challenge to Gender Bias in the Law? on SSRN. Here is the abstract:

This chapter examines the use of battered woman syndrome in Australian cases where women have been charged with an offence committed in response to, or under the influence of, domestic violence. It outlines the rationale for using battered woman syndrome and questions whether evidence concerning the syndrome has been effective in challenging gender bias in the law.

McCabe on Climate Change Litigation and Standing

Margaret Sova McCabe (University of Arkansas - School of Law) & Jordan C. Budd (University of New Hampshire School of Law) have posted Standing To Enforce The Future: Citizen Suits And Climate Change (Boston College Law Review (Forthcoming 2025)) on SSRN. Here is the abstract:

Climate change poses an incalculable threat to human civilization. To forestall or perhaps avert its most devastating consequences, “[d]eep, rapid and sustained” reductions must be made in greenhouse gas (GHG) emissions that are fueling the climate crisis. Despite recently enacting the first significant federal legislation to address this threat, the United States – which generates more GHG emissions than any nation but China – continues to fall far short of the requisite reductions. Notwithstanding a political environment that likely precludes further legislative action in the immediate future, this Article takes as its starting point the premise that these circumstances might change, and that Congress might choose to use its lawmaking powers to significantly expand federal efforts to reduce the nation’s GHG emissions.

Were Congress to do so, and if its response included direct restrictions on GHG emission activities in addition to incentive and subsidy arrangements, federal policy would require powerful accompanying enforcement mechanisms to reach the vast number of GHG sources subject to regulation. Among the most far-reaching enforcement tools at the disposal of Congress is its authorization of private suits to restrain or penalize prohibited conduct. Such actions, referred to as citizen suits, are an integral part of most federal regulatory programs and would likely play an important role in any federal effort to broadly regulate GHG emissions. This central enforcement mechanism, however, likely faces an insurmountable hurdle in the context climate-change policy: the increasingly restrictive standing doctrine of the current Supreme Court. To establish standing to sue, a private enforcer must meet the Court’s highly restrictive test for Article III standing, including proof of a causal association between the requested relief and the substantial remediation of the litigant’s injury. For the Justices who now control the Court, litigation that makes incremental progress toward the future resolution of a vast and ongoing injury is not enough to justify the exercise of federal jurisdiction.

The injuries caused by climate change result from the collective activity of an incalculably vast number of GHG emitters across the world. Any effort to fully remediate climate-related injuries will necessarily require a similarly vast and collective global intervention – including, potentially, citizen suits that individually target just a small proportion of overall global GHG emissions. Such suits thus must rest on the principle that Article III permits incremental relief that, in the aggregate, helps turn the tide against climate change. As this Article explains, it is highly likely that a majority of the current Court will repudiate that proposition.

In view of this impediment to private enforcement, the Article proposes that Congress consider pairing, whenever possible, direct regulatory restrictions on emissions activities with parallel restrictions on associated prerequisite activities. GHG emissions arise from economic arrangements that often involve activities that inflict harms unrelated to climate change – for example, localized environmental and health injuries arising from the processing, transportation, and distribution of methane-emitting cattle. Litigants separately harmed by such prerequisite activity will meet the requirements of Article III standing, since the relief they seek will directly – not incrementally – remedy their separate injuries. Accordingly, legal restrictions on those prerequisite activities would be subject to citizen suits based on the injuries they directly inflict, with the consequence of restricting dependent but otherwise nonjusticiable emission activities as well.

The Article illustrates how this approach might work in the context of regulating the cattle industry, which accounts for a significant proportion of GHG emissions in the United States. In addition to direct regulation, which would not support standing for private enforcement, the Article describes how separate regulatory restrictions on concentrated animal feed operations (CAFOs) would effectively reduce methane emissions associated with cattle by constraining the industry’s prerequisite production and distribution channels. Since CAFOs inflict a variety of localized environmental and health injuries as a consequence of their massive scale, individuals subject to such harms would have standing to bring citizen suits to challenge their operation – with the collateral effect of restricting a primary source of GHG emissions.

Fehr on "Search and Seizure" by Diab & Hunt

Colton Fehr (University of Saskatchewan - College of Law) has posted Book Review of Search and Seizure by Robert Diab and Chris Hunt (2025) (47 Manitoba Law Journal (forthcoming)) on SSRN. Here is the abstract:

This book review discusses Robert Diab and Chris Hunt's recent book publication, "Search and Seizure." Irwin Law’s “Essentials” series is deservedly among the most populous on bookshelves in Canadian law schools, libraries, and offices. While the series typically provides concise overviews of broad topics like criminal or constitutional law, it more recently has begun to include editions on particularly complex constitutional rights protected under the Canadian Charter of Rights and Freedoms.1 Professors Robert Diab and Chris Hunt’s recent addition on the protection against unreasonable search and seizure provided in section 8 of the Charter falls into the latter category. Their contribution is most welcome given the rapidly evolving nature of the jurisprudence interpreting and applying this notoriously complex right. In light of these challenges, Justice Martin captures the contribution made by the book perfectly in her foreword: “this excellent book… provides a precise and digestible presentation of the right to privacy and the jurisprudence interpreting section 8 of the… Charter 2."

Osofsky on Wellness and Tax

Leigh Osofsky (University of North Carolina (UNC) at Chapel Hill) has posted Wellness and The Tax Law (Georgia Law Review (forthcoming)) on SSRN. Here is the abstract:

The tax law has long provided extensive subsidies for "medical care." These subsidies cost the government hundreds of billions of dollars a year. The definition of medical care, which is at the heart of these subsidies, originated many decades ago, at a time when there was little to no conception of wellness.

Times have changed in the medical world. Medical science now emphasizes that wellness practices, like exercise, meditation, and social connection, have an important impact on physical as well as mental health, including by playing a significant role in preventing and treating disease. Under the tax statute, medical care includes "treatment. .. or prevention of disease." The tax law nonetheless disallows subsidies for wellness expenditures under the theory that they are "merely beneficial to general health." This tension between medical science and tax law demands that we reappraise tax law's medical care subsidy.

This Article engages in that reappraisal. It asks what justifies tax law's extensive medical care subsidy and whether it remains justifiable today. The traditional justification for tax law's medical care subsidy is that medical care is different from consumption. As a result, when tax law subsidizes medical care, even in a regressive way, it is not subsidizing spending on personal pleasure or regular, personal maintenance; rather, it is subsidizing compulsory expenses that restore a loss. Yet, the new medical science around wellness reveals that what we have long thought of as pure consumption constitutes medical care. Moreover, changes in the scope of the subsidy over time have resulted in tax law subsidizing many items that are far from compulsory, catastrophic medical expenses. The result is that tax law’s medical care framework subsidizes some forms of consumption, but not others, in a haphazard, incoherent, and ultimately unjustifiable way.

After exploring the problems with tax law’s medical care subsidy, this Article offers three potential paths forward: an expansion of tax law’s medical care subsidies to more fully account for all expenses that prevent or treat disease; a contraction of tax law’s subsidies to more closely match justifiable goals, such as insuring against catastrophic and compulsory medical expenses; and a progressive wellness credit. This Article finds that the third approach best accounts for how consumption can be medical care and best responds to the ways that higher-income taxpayers benefit from higher privilege to consume.

Gyory on the Pregnant Workers Fairness Act

Madeleine Gyory (New York University School of Law) has posted The Reasonable Pregnant Worker on SSRN. Here is the abstract:

Pregnant workers often need changes to their work responsibilities to stay healthy during pregnancy while earning a needed paycheck. Congress passed the Pregnant Workers Fairness Act (PWFA) in December 2022, entitling many workers for the first time to "reasonable accommodations" for their pregnancy, childbirth, and related medical conditions, so long as they do not impose an "undue hardship" on their employer. The PWFA dictates that the law's key terms, "reasonable accommodation" and "undue hardship," should be construed as they are under the Americans with Disabilities Act (ADA), ADA caselaw, and new PWFA regulations issued by the Equal Employment Opportunity Commission (EEOC) in April 2024. But what if these sources conflict? ADA caselaw frequently departs from the ADA's statutory and regulatory text, and is in tension with the EEOC's new PWFA regulations, producing a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants.

This Article is the first to address how the chaotic ADA doctrine will impact implementation of the PWFA and to consider how ADA caselaw should be read in conjunction with the EEOC's new PWFA rule. Anticipating future litigation, this Article proposes a framework for litigants and courts assessing reasonable accommodation claims under the PWFA that adapts ADA precedent to account for the PWFA regulations. It argues that the PWFA rule is entitled to some deference under Loper Bright Enterprises v. Raimondo because Congress delegated specific authority to the EEOC to interpret the phrase "reasonable accommodation." Finally, this Article demonstrates why, under its proposed framework, the PWFA will often require employers to accommodate temporary transfers, remote work, and leave, notwithstanding conflicting ADA caselaw.

Recommended.

de Britto on the Social Function of Copyright

Vitoria Maturana de Britto (Munich Intellectual Property Law Center (MIPLC)) has posted The Social Function of Copyright on SSRN. Here is the abstract:

This thesis deals with the need to recognize a balance between the individual rights conferred on authors in the copyright system and the common interests of society. It investigates the application of the social function to copyright. In this sense, this theory indicates that no individual right should be considered absolute and that there should always be a balance between individual rights and the common interests of society. This approach also goes through the concepts of common interest and what this balance of interests means.

The common interest refers to the general social interest, not the sum of individual interests. Furthermore, it is not necessarily the interest imposed by a government, but a social objective. The balance that must be made is between individual rights and the common interest, which can also be identified through individual rights that have been recognized based on common objectives, such as fundamental rights.

In the context of copyright, based on its justifications and the limits and exceptions already established in legal systems, we analyze its common interest in promoting the cultural development of society, as a way of contributing on a general and personal level to the construction of individuals' personal perception. Because of this common interest, there are two rights, the right of access and the right of creation/reuse, which must be balanced against the exclusive rights of authors of artistic and literary works.

Finally, let's look at the Pelham case, judged by the CJEU, as an example of the need for greater attention to be paid to the application of the social function to copyright, in the context of sampling techniques in the music industry.

Sevel on the Values of the Rule of Law

Michael Sevel (The University of Sydney - Faculty of Law) has posted The Values of the Rule of Law (Michael Sevel (ed.), The Routledge Handbook of the Rule of Law (2025)) on SSRN. Here is the abstract:

Is the rule of law worth the trouble? Why should anyone want to live in a society in which it is realized? When it is achieved, what improvement has been made? And what exactly has been improved? My aim here is to begin to develop a general, analytical classificatory scheme for the wide variety of claims about why and how the rule of law is valuable. This will be informed by some standard concepts and distinctions from moral and political philosophy, the traditional home to long-standing debates about value as such. In developing the scheme, it will become apparent that there are persistent ambiguities in common claims about the rule of law's value. The intended purpose of the scheme is to begin to resolve such ambiguities.

Recommended.

Linna et al on Deepfakes and National Security Cases

Daniel W. Linna Jr. (Northwestern Pritzker School of Law & McCormick School of Engineering), Abhishek Dalal (Northwestern University - Northwestern Pritzker School of Law), Chongyang Gao (Northwestern University), Paul W. Grimm (Duke University School of Law), Maura R. Grossman (University of Waterloo - David R. Cheriton School of Computer Science; York University - Osgoode Hall Law School), Chiara Pulice (Northwestern University), V.S. Subrahmanian (Northwestern University), & Hon. John Tunheim (United States District Courts) have posted Deepfakes in Court: How Judges Can Proactively Manage Alleged AI-Generated Material in National Security Cases on SSRN. Here is the abstract:

Dall-E. ChatGPT. GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI generated content have proven to be unreliable, and also biased. Humans have also proven to be poor judges of whether a digital artifact is real or fake. There is no foolproof way today to classify text, audio, video, or images as authentic or AI generated, especially as adversaries continually evolve their deepfake generation methodology to evade detection. Thus, the generation and detection of fake evidence will continue to be a cat and mouse game. These are not challenges of a far-off future, they are already here. Judges will increasingly need to establish best practices to deal with a potential deluge of evidentiary issues.

We will discuss the evidentiary challenges posed by Generative AI using a civil lawsuit hypothetical. The hypothetical describes a scenario involving a U.S. presidential candidate seeking an injunction against her opponent for circulating disinformation in the weeks leading up to the election. We address the risk that fabricated evidence might be treated as genuine and genuine evidence as fake. Through this scenario, we discuss the best practices that judges should follow to raise and resolve Generative AI issues under the Federal Rules of Evidence.

We will then provide a step-by-step approach for judges to follow when they grapple with the prospect of alleged AI-generated fake evidence. Under this approach, judges should go beyond a showing that the evidence is merely more likely than not what it purports to be. Instead, they must balance the risks of negative consequences that could occur if the evidence turns out to be fake. Our suggested approach ensures that courts schedule a pretrial evidentiary hearing far in advance of trial, where both proponents and opponents can make arguments on the admissibility of the evidence in question. In its ruling, the judge should only admit evidence, allowing the jury to decide its disputed authenticity, after considering under Rule 403 whether its probative value is substantially outweighed by danger of unfair prejudice to the party against whom the evidence will be used. Our suggested approach thus illustrates how judges can protect the integrity of jury deliberations in a manner that is consistent with the current Federal Rules of Evidence and relevant case law.

Rappaport on the American Creed and Constitutionalism

Aaron J. Rappaport (UC Law, San Francisco) has posted The American Creed and the Constitutional Order (58 Creighton L. Rev. __ (2024)) on SSRN. Here is the abstract:

Liberal democracy faces an existential threat in the United State today. Political polarization and the rise of far-right extremism both raise questions about the institutional structure’s continuing viability. For the first time in recent memory, Americans are questioning whether the nation might ultimately become undemocratic, illiberal, or both. This essay explores a neglected cause of this political crisis and, more importantly, offers a possible long-term path forward.

The underlying roots of the nation’s political crisis lie in the institutional structure of liberal democracy itself. That core structure inevitably generates deep anxieties and grievances, concerns that are intensified by two additional factors –the promulgation of illiberal ideologies, which validate the sense of grievance, and the use of modern propaganda techniques, which spread ideologically-infused messages widely and effectively. Grievances, ideologies and propaganda combine to generate a cycle of radicalization that drives citizens towards extremism.

The only real solution to this problem is, perhaps counterintuitively, an ideological one. Only a compelling ideology of liberal democracy can ameliorate the sense of grievance, counter the illiberal ideologies, and inoculate the public against propaganda. The endeavor to identify such an ideology inevitably leads to the American Creed, the core ideals that were thought to underlie the American experiment. But as this essay argues, the American Creed as conventionally understood is too vague and conflicted to offer a solid foundation upon which to build America’s complex institutional structure.

This paper concludes by articulating a set of requirements that a compelling ideology must possess. The effort serves as a preliminary step towards the articulation of a new and more compelling American Creed.

Elliott on Consumer Financial Protection Bureau v. Community Financial Services Association of America

E. Donald Elliott (Yale University - Law School; Antonin Scalia Law School) has posted Monomaniacal Textualism Undermines Congress's Power of the Purse on SSRN. Here is the abstract:

No structural principle of our government is more fundamental than that the House of Representatives, the part of our national government closest to the people, controls the "power of the purse" to raise and spend money. However, in its Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd. decision, the U.S. Supreme Court upheld a funding mechanism whose only purpose was to make it more difficult for a future House with a different political composition to use appropriations riders to rein in initiatives by the CFPB with which it disagrees. The author contends this erroneous result was a consequence of a jurisprudence of "monomaniacal textualism," which carries a reform too far by considering only the wording and history of constitutional provisions but not their purposes. The article further argues that in considering institutions such as the Administrative State which did not exist at the time the Constitution was adopted, courts should consider the "spirit" as well as the text of the Constitution. It further argues that courts had been using common law methods to interpret colonial charters for a century and a half prior to the ratification of the Constitution, and that by vesting them with "the Judicial power" the drafters and ratifiers of the Constitution conferred on the courts the power to continue doing so.

Agarwal on the Politics of Family Law in India

Akshat Agarwal (Yale Law School) has posted Supriyo and the Politics of Indian Family Law (Indian Law Review (Forthcoming 2024)) on SSRN. Here is the abstract:

The Supreme Court of India's recent rejection of marriage equality in Supriyo Chakraborty v Union of India marks a break from the court's previous decisions on LGBTQ+ rights. Despite doctrinal advances in the court's liberty and equality jurisprudence, it ruled against the petitioners. I argue that a significant way of understanding Supriyo is by locating it in the longer history and politics of family law. Indian family law has long been a site of tension about the precise scope of the State's authority over the family. These tensions have been visible in debates about the constitutionality of religious personal laws and the enactment of a uniform civil code to replace existing family laws. The competing visions of the State's relationship with the family in Supriyo's majority and minority opinions exemplify these tensions. The outcome in Supriyo is thus closely implicated in and influenced by the longue duree of Indian family law.

Synodinou on Digitalization and EU Copyright Law

Tatiana Synodinou (University of Cyprus) has posted Access Restrictions in a Dematerialized World: An EU Copyright Law Perspective on SSRN. Here is the abstract:

Digitalization has radically transformed the way we understand and enjoy property. The function of property has changed. It has been transformed into a right to administer access to resources, such as experiences or functionalities. In other words, we do not need physical possession in order to enjoy it. The concept of property is intrinsically linked with the idea of control over an object. This control and the declaration of the intention to exercise this control can take various forms. From lockers to walls, fences or “no trespass” warnings, the holder of the right sets the terms of access to the property by third parties. Copyright law, as a special kind of “property”, also been subject to the same principles and philosophy. Before digitalization, access controls to the intangible work or other copyright-protected subject matter were exercised through the physical control of the tangible medium incorporating the work (the book, the videotape, the cassette tape). The dematerialization of the medium has created the need to exercise the control over the works in immaterial ways, through technological means. The rise of the Internet and file sharing led to an increase in digital piracy and to the significant development and application of digital rights management (DRM), which has gradually become standard for the distribution of digital content. DRM is a flexible concept and comprises any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorized by the right holder. The reality of controlling the use of works has been viewed by legal commentators as the foundation of a new legal prerogative that exceeds the limits of the classic legal monopoly. This is the right of access or, more generally, the right of use, which is the legal expression of the control of the "consumption" of works. Access restrictions in copyright law have been linked to the history and the controversies of traditional DRM: incompatibility and interference with usage, technical difficulties, even de facto control of uses out of the perimeter of the copyright monopoly on the basis of an exception, the term of copyright protection or the inherent limitations principle of non-protection of the ideas and no protection for facts and simple information. However, nowadays the control of access (or, if we want to use more doctrinal terms, the “right of access”) is materializing in new and various ways. In a dematerialized world, access restrictions mechanisms might have become more flexible and user-friendly, but they still trigger debates on the stifling of creativity, innovation, consumer rights and the social construct of copyright. I have divided my presentation into three parts. This division is inspired by the three classic dimensions regarding the application of law: the person, the place and time. By analogy, the concept of “access restrictions” has evolved into a complex techno-legal reality which comprises these dimensions: personal (who is authorized to have access by the right holder), geographical (for which territory the access is or is not permitted), and temporal/chronological (when and for how long the access is or is not permitted). Accordingly, in the first part of this article, the implicit legal recognition of the access right through the broad interpretation of the right of communication to the public by the Court of Justice of the European Union (CJEU) is analyzed (1). The second part focuses on the geographical dimension of access restrictions in the EU (mainly geo blocking and its impact on EU copyright law) (2). The third part explores the temporal dimension of access restrictions and specifically their impact on the EU cultural sector (3).

Askitas on Law, Theater, and Sexual Identity

Giorgos Askitas (Université Sorbonne Paris Nord) has posted Law through Theatre: The Trans-judicial and Trans-theatrical Approach to Sexual Identity on SSRN. Here is the abstract:

This paper explores the intersection of law and theater in understanding sexual identity, termed "transjudicial" and "transtheatrical" approaches. It examines how theatrical techniques and performances can illuminate legal constructs and societal norms surrounding sexual identity. By analyzing case studies and theoretical frameworks, the study reveals the performative aspects of both legal and social narratives, proposing a more nuanced comprehension of sexual identity through the lens of theatricality. This interdisciplinary approach aims to enrich legal theory and practice by incorporating insights from the performing arts.

Balser, Weaver, & Jane on Unauthorized Practice of Law and Domestic Violence

Cayley Balser (James E. Rogers College of Law), Erin Weaver (University of Arizona - James E. Rogers College of Law), & Stacy Rupprecht Jane (University of Arizona - James E. Rogers College of Law) have posted The Potential of Unauthorized Practice of Law Reform to Advance Domestic Violence Advocacy: Methods and Findings on SSRN. Here is the abstract:

Ninety-eight percent of low-income domestic violence survivors experienced at least one additional civil legal problem in the past year, and 87% experienced at least five. 88% of low-income survivors receive inadequate or no legal help. Survivors may receive legal navigation assistance from DV advocates positioned at organizations providing support services to survivors, but DV advocates are trained to give legal information, not legal advice, in order to comply with unauthorized practice of law (UPL) restrictions. To chart the national domestic violence legal service landscape under the current UPL regime, this Toolkit addresses five research questions:

1. Nationally, what gaps in their ability to help survivors do DV advocates experience when they limit their help to legal information, not legal advice?
2. Do DV advocates think UPL reform and the ability to give limited-scope legal advice as part of their services would be helpful to them and the survivors they serve?
3. What civil legal needs do DV advocates most want/need to advise DV survivors regarding?
4. What additional legal training would DV advocates want and need to feel equipped to give limited-scope legal advice?
5. What do subject matter experts consider the best practices for lay and licensed legal advocacy for DV survivors, in areas such as training/certification, supervision/mentorship, and professional responsibility?

This project was divided into two parts. In this Part One mixed methods study, the research team answered the five research questions through data collected across 85 interviews and 191 surveys with DV advocates, DV advocacy organization leaders, and subject matter experts across the US. In Part Two the research team worked from the data and research collected in Part One of this project and applied design-thinking and user-experience UX) methodologies to layer this DV-specific research with a database of the 50 states' UPL restrictions and exceptions and a jurisdiction-agnostic guide to data-driven UPL reform using the DV research as an example study. The Domestic Violence Advocacy Policy Toolkit inventories the 50 states' unauthorized practice of law restrictions and exceptions to those restrictions and explores the impact of UPL restrictions on legal services for domestic violence survivors. At publication, the Toolkit was shared as a tangible deliverable designed for anyone who wants to build the bench of community members who can know and use the law to advance equal justice. Grounded in the issue of domestic violence as a case study, the Toolkit is particularly a resource for advocates, organization leaders, lawyers, and survivors interested in advancing UPL reform in their state. This Toolkit can be used to encourage UPL reform in any jurisdiction.

Stump on Ecosocialism

Nicholas Stump (West Virginia University - College of Law) has posted Ecosocialism, Degrowth, and Global South Thought: Critical Legal Transformations (49 William & Mary Environmental Law and Policy Review  (forthcoming 2025) on SSRN. Here is the abstract:

This Article explores how Critical Legal Research (CLR) can help drive transformations of our ecological political economy towards true system change. CLR, in the first place, unveils how the hegemonic legal research regime is structured to support dominant societal interests (i.e., white patriarchal capitalism). CLR helps to unveil these dynamics, while also offering novel and potent approaches to help transcend this regime in ultimate pursuit of radical social change. These transformative approaches include reliance on diverse alternative resources and adoption of collectivist and grassroots-based research approaches. After articulating the CLR framework, this Article explores its potential in the context of leading and intertwined bodies of theory for transformative change: ecosocialism, degrowth, and Global South and Indigenous thought. Next, this Article offers concrete avenues to help pursue such emancipatory change—i.e., specifically focusing on the popular conception of an "ecosocialist transition." Ecosocialist transition strategies include non-reformist reforms, dual power, a radical just transition, and joining ecosocialism with a broader global movement of movements. As this Article contends, such ecosocialist transition strategies can be powerfully informed by CLR via embedding CLR within bottom-up forms of socio-legal praxis, such as radical movement lawyering. Ultimately, such CLR praxis constitutes an emerging and vital, yet still largely underutilized, dimension in the struggles to combat white patriarchal capitalism and to pursue ecologically viable and socially emancipatory futures.

Afrouzi on Leveling Downing Legal Resources and Accuracy

Amin Ebrahimi Afrouzi (UCLA School of Law - UCLA School of Law; Yale Law School) has posted Leveling Down Legal Resources: Why Epistemic Arguments Fail (Legal Theory, Forthcoming). Here is the abstract:

The rich evade conviction more often in criminal trials than the poor. They also win more often in civil cases against the poor. Given that money buys better lawyers and better lawyers are instrumental to winning in adversarial trials, the rich have a structural advantage in laissez faire trial systems. Such inequality is concerning. In a landmark paper, Alan Wertheimer argues that we should level down legal resources in civil cases, on the basis that doing so increases the adversarial system's accuracy, that is, it's chance of reaching correct decisions. In a more recent paper and along similar lines, Shai Agmon also advocates that given some constraints of adequacy, legal resources should be leveled down in both civil and criminal cases. This paper aims to show that such arguments fail, because leveling down legal resources could decrease a trial system's accuracy, making it worse by Wertheimer's or Agmon's own lights.

Highly recommended.

Clarke on the State/Party Distinction in China

Donald C. Clarke (George Washington University - Law School) has posted Law and the Political System in Xi Jinping's China: The Decline of the Party/State Distinction on SSRN. Here is the abstract:

This chapter examines the relationship between China’s legal system and its political system in the Xi Jinping era. It locates legal institutions within the broader political system and looks at two important Xi-era reforms--the establishment of Supervisory Commissions and efforts to professionalize the judiciary. Addressing in particular the questions of whether there is a meaningful line between the legal and the political and whether China has, in the words of Carl Minzner, “turned against law,” it concludes that the Party is significantly downgrading, and perhaps abandoning, any effort to maintain a distinction between politics and law and between the Party and the state. The Xi administration has doubled down on and affirmed the absolute primacy of politics and the Party over legal institutions and legal standards.

This chapter has been published as “Law and the Political System in Xi Jinping's China,” in Daniel Lynch Stanley Rosen (ed.), Chinese Politics: The Xi Jinping Difference (Routledge 2024): 17-43.