Legal Theory Blog

Anenson & Gershberg on Stare Decisis and California Pension Precedent

T. Leigh Anenson (University of Maryland - Robert H. Smith School of Business) & Jennifer Gershberg (University of Maryland - Robert H. Smith School of Business) have posted Stare Decisis and the Status of California's Super Pension Contract (Forthcoming, Loyola of Los Angeles Law Review, Vol. 56, 2023) on SSRN.  Here is the abstract:

A fundamental principle of law is that courts stand by their decisions. Under the Latin term, stare decisis, judicial action strives for stability and coherence by setting precedents for the future in deciding current cases. This Article presents an original inquiry into the overruling expression and criteria for stare decisis in the public pension reform context of California’s constitutional contract law. While there is a lively debate among commentators and judges about the role of stare decisis theory and doctrine in federal law, our study extends that conversation to state law for the first time. We develop a new decision-making framework by synthesizing state and federal decisions to provide a fresh perspective on the perennial problem of whether cases should be settled or settled right. Utilizing the proposed decisional model, we analyze if the Supreme Court of California should retain or repudiate its super pension contract. This contract—commonly called the California Rule—is the primary obstacle to pension reform under the Contract Clause. The rule has contributed to the state’s pension crisis by granting protection of future accruals on the first day of government employment. Because the California rule has been widely adopted in other jurisdictions that are similarly struggling to manage debilitating pension debt, the foregoing evaluation of precedent’s durability has important and far-reaching implications.

Criddle on Legal Order at the Border

Evan J. Criddle (William & Mary Law School) has posted Legal Order at the Border (UC Davis Law Review, Vol. 56, forthcoming 2023) on SSRN.  Here is the abstract:

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law violates all of these principles in its treatment of asylum seekers. As the number of asylum seekers pursuing entry to the United States has risen sharply in recent years, these legality deficits have become increasingly salient. No wonder, then, that even the most aggressive deterrent measures — from mass prosecution to family separation to the construction of steel border walls — have failed to solve the United States’ border crisis. The United States faces an urgent dilemma: it may preserve the Immigration and Nationality Act (“INA”) in its current form, denying protection to too many forced migrants and reserving broad discretion to the Executive Branch, or it may establish a functional legal order at the border. It cannot have both.

If lawmakers were serious about establishing legal order at the border, there are measures they could take to strengthen the system’s structural integrity. They could eliminate the Attorney General’s discretionary authority over asylum. They could clarify ambiguities in the INA to promote greater consistency, stability, and congruence in immigration adjudication and enforcement. They could extend protection to all forced migrants who face death, rape, or other serious harm abroad, including victims of gang violence and gender-based violence. In short, they could enact laws that asylum seekers could rationally obey. To the extent that lawmakers are unwilling to take these steps, it is fair to question their commitment to establishing a functional legal order at the border.

Highly recommended.  Download it while it's hot!

Raz on Legal Primacy and Corporate Law

Asaf Raz (University of Pennsylvania Carey Law School) has posted The Legal Primacy Norm (74 Fla. L. Rev. 933 (2022)) on SSRN.  Here is the abstract:

Corporate law scholarship revolves around two polar conceptions, known as "shareholder primacy" and "corporate social responsibility." This Article takes the literature in a new direction, arguing that the current dichotomy misses a crucial aspect of corporate law: its norm of legal primacy. Any pursuit of profit, by the corporation, is legally permitted only within the bounds of full compliance with non-corporate positive law. When the corporation acts unlawfully, corporate law provides a powerful, and until now undertheorized, set of remedies against its fiduciaries and shareholders.

As this Article demonstrates, the most effective way to promote socially desirable corporate behavior is by utilizing the legal primacy devices that corporate law already offers, while continuing to strengthen non-corporate law. Connecting legal primacy with corporate practice, this Article discusses a number of doctrines, some of which have recently become high-profile topics of litigation and scholarship: the fiduciary duty of good faith; directors' oversight duties; the mandatory limits on dividends and buybacks; the shift in corporate purpose in the vicinity of insolvency; the seniority of preferred and trust shareholders; and the judicial dissolution of law-breaking corporations. The analysis offered in this Article can help shape the law to better protect stakeholders (without departing from rule of law principles, or the rights that entities and shareholders do have), and chart a more nuanced trajectory for broader discourse on business law, private law, and public regulation.

Highly recommended.

Lim & Li on Patentability of Biofabricated Human Organs

Pheh-Hoon Lim (Auckland University of Technology) & Phoebe Li (University of Sussex Law School) have posted Patentability of Biofabricated Human Organs: ‘Products of Nature’ or ‘Products Derived from Nature’ Revisited (in Hawkins N (ed) Patenting Biotechnological Innovation: Eligibility, Ethics and Public Interest (Edward Elgar, 2022) 69-89) on SSRN.  Here is the abstract:

Concerns over the blurring of the distinction between ‘discoveries’ and ‘inventions’ raise a question on whether biofabricated human organs created by additive multilayering of naturally occurring cells are man-made inventions. Or, arguably, are they non-patentable products of nature despite the need for human intervention to create them? This chapter revisits the ‘product of nature’ versus ‘product derived from nature’ debate to consider this question based on case law reasoning presented in the scenarios on bioproducts in the Oncomouse and Dolly the sheep and the further controversy on ‘isolated genes’ in Myriad. The authors draw a parallel between isolated DNAs (and bioproducts of higher life forms/mammals) and a bioprinted human organ to examine whether the latter could satisfy the patent-eligibility threshold when the essential elements of the claimed biological compositions do not alter the fundamental quality of an organ as it exists in the body.

Hunter-Henin on Religious Neutrality and European Supranational Courts

Myriam Hunter-Henin (University College London - Faculty of Laws) has posted Religious Neutrality at Europe's Highest Courts: Shifting Strategies (Oxford Journal of Law and Religion, 2022, 1–24) on SSRN.  Here is the abstract:

This article demonstrates that recent manifestations of religious neutrality in the caselaw of Europe’s highest courts amount to ‘shifting strategies’, which prompt systematic and excessive judicial restraint from European supranational courts. It argues that these shifting strategies end up (wrongly) framing the visibility of religion as the problem to be solved. It suggests an alternative approach, under which neutrality would only have a derivative and conditional value, to be established and assessed by European courts. The role of European courts would then no longer be to display (allegedly neutral) judicial restraint but to provide a democratic forum in which equality and liberty interests may be constantly confronted and revisited as new contestations emerge.

Aamir on International Law the World Order

Omer Aamir (Georgetown University Law Center; CASS) has posted International Law in Emerging World Order on SSRN.  Here is the abstract:

There are various dimensions to International law and its applicability. They include the political, diplomatic, military, and economic dimensions. Politically, the countries might reshape International Legal Order (ILO). Diplomatically, there is a need for efforts to develop approaches to determine international legal regimes. Economically, the incentives (economic aid) and disincentives (sanctions) regulate the ILO.

There is a need to explore the concept of Sovereignty and Self-Determination. The definitions of these topics are ever-evolving in Political Science, International Law, and International Relations. Moreover, the concept of Sovereignty as postulated by Asian countries- as global influence and economic prowess shifts towards Asia- particularly China and its understanding of State Sovereignty. Then there will be an understanding of how Justice is the foundation stone of a prosperous society. Justice and the rule of law set the cornerstone for a meritocratic and exemplary society that results in social welfare and economic progress. In the modern understanding of International law, there is also an expedient need to regulate multilateral and bilateral treaties for scholars to study further to restructure ILO.

ILO will ultimately be shaped by the push and pull factors that emanate from different competing interests of global and regional powers, multilateral and regional organizations, multinational corporations and business interests, lobbyists, and international non-government organizations (INGOs). These will ultimately determine whether International Order is fortified or weakened.

Siegel, Greenhouse, & Salazar Marín on Abortion and Global Constitutionalism

Reva Siegel (Yale University - Law School), Linda Greenhouse (Yale Law School), & Daniela Salazar Marín (Judge of the Constitutional Court of Ecuador) have posted Abortion: Rights in Motion - Global Constitutionalism 2022 on SSRN.  Here is the abstract:

Many jurisdictions have decided to decriminalize and expand access to abortion, while others, notably including the United States, have rolled back long-standing protections for abortion rights. The chapter discusses selections from abortion decisions in Ecuador, Mexico, Colombia, South Korea, Nepal, Kenya, Poland, and Hungary interspersed with related sources. An addendum includes the decision of the United States Supreme Court in Dobbs v. Jackson Women's Health Organization. The cases illustrate the different roles social movements can play in shaping the law, and raise questions about the role of courts in a democracy. Must courts consider—or must courts ignore—the impact of laws criminalizing abortion on women’s equal citizenship?

Jensen & Lee on Corpus Linguistics & International Law

Eric Talbot Jensen (Brigham Young University School of Law) & James Rex Lee have posted International Law: Corpus Linguistics and Ordinary Meaning (54 George Washington International Law Review 1 (2022)) on SSRN.  Here is the abstract:

The application of corpus linguistics to clarify ambiguity or provide insight in legal interpretation is quickly gaining recognition within the United States, especially among the judiciary. However, very little has been done to assess its application to international law, particularly as a means of assisting international courts and tribunals. In the international legal system—where ambiguity inevitably arises from the great diversity of linguistic and cultural systems throughout the world—the norm for understanding contested terms within a treaty or agreement is to look for the “ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Given the ability of corpus linguistics to effectively determine a word’s ordinary meaning, this tool can therefore significantly reduce the inherent ambiguity of legal terms in bilateral and multinational contexts, such as treaties and conventions, interstate negotiations, U.N. agency resolutions or statements, and a host of other international law documents. By using computeraided means to objectively model how different nations may understand a particular word or phrase, corpus linguistics may create greater transparency and impartiality in international adjudications.

Highly recommended.

Orwat et al on Risk Regulation of AI

Carsten Orwat (Karlsruhe Institute of Technology - Institute for Technology Assessment and Systems Analysis), Jascha Bareis (Karlsruhe Institute of Technology - Institute for Technology Assessment and Systems Analysis), Anja Folberth (Karlsruhe Institute of Technology - Institute for Technology Assessment and Systems Analysis; Heidelberg University - Institute for Political Science), Jutta Jahnel (Karlsruhe Institute of Technology - Institute for Technology Assessment and Systems Analysis), & Christian Wadephul (Karlsruhe Institute of Technology - Institute for Technology Assessment and Systems Analysis) have posted Normative Challenges of Risk Regulation of Artificial Intelligence and Automated Decision-Making on SSRN.  Here is the abstract:

Recent proposals aiming at regulating artificial intelligence (AI) and automated decision-making (ADM) suggest a particular form of risk regulation, i.e. a risk-based approach. The most salient example is the Artificial Intelligence Act (AIA) proposed by the European Commission. The article addresses challenges for adequate risk regulation that arise primarily from the specific type of risks involved, i.e. risks to the protection of fundamental rights and fundamental societal values. They result mainly from the normative ambiguity of the fundamental rights and societal values in interpreting, specifying or operationalising them for risk assessments. This is exemplified for (1) human dignity, (2) informational self-determination, data protection and privacy, (3) justice and fairness, and (4) the common good. Normative ambiguities require normative choices, which are distributed among different actors in the proposed AIA. Particularly critical normative choices are those of selecting normative conceptions for specifying risks, aggregating and quantifying risks including the use of metrics, balancing of value conflicts, setting levels of acceptable risks, and standardisation. To avoid a lack of democratic legitimacy and legal uncertainty, scientific and political debates are suggested.

Zamboni on Constitutionalism in Sweden

Mauro Zamboni (Stockholm University - Faculty of Law) has posted The Role of Constitution in Sweden: Its Normative Patchy Floor and Its (Half-Way) Journey From Political to Legal Constitutionalism on SSRN.  Here is the abstract:

If one thinks about the constitution in a well-established democracy, he or she certainly contemplate it as being the most important legal, political, and (to some extent) social document according to which the life of an entire national community has to be mold. Constitutions not only contain the basic structuring of a state in its fundamental components; they also indicate the fundamental values according to which (and for the fulfillment of which) both public and private actors have to operate. In a metaphorical sense, the constitution is the ground floor which each democracy is built upon.

However, if one starts to look around the realities, he or she can easily notice how this ideal-typical picture is exactly ideal-typical. In this respect, also Sweden can be said to belong to those well-established democracies which present an idea of constitution as “divergent” from the ideal-typical one of being the legal floor upon which the regulation of the entire national community should be built upon. In particular, the Swedish constitutional ground floor appears to have a nature of legal normativity of an uneven or “patchy” character. For various reasons, constitutional documents (or parts thereof) which should normally be considered as the bearing floor of a well-established and well-functioning Western-style democracy, they are instead generally perceived and used by both the Swedish legal and political actors more as “aspirational” policy documents, not really binding them and offering them a rather broad space of legal and political maneuver.

The purpose of this work is to present both this perception (and use) of the constitutional charters in Sweden which appears to deviate from the ideal-typical one and the factors behind such a “political” (rather than legal) role played by the parts of the constitutional provisions in the national legal discourse. At the same time, this work will also point out how some of these factors have recently changed and therefore it is maybe possible to detect nowadays tendencies pushing the Swedish major legal actors into a more “legal” vision of the constitution as “per se” fundamental floor for every legal and political discourse.

Ali on Cultural Divergence in International Arbitration Practice

Shahla F. Ali (The University of Hong Kong - Faculty of Law) has posted Fluidity of Culture: Convergence and Informed Divergence in Cross Border Arbitration on SSRN.  Here is the abstract:

The theme of sustainable diversity in international arbitration necessarily calls for an examination of the broader question of cultural convergence and divergence in international arbitration practice. Examining both the convergence and divergence of approaches to arbitration in diverse settings provides an avenue to understanding the impact of globalization on the international practice of law.

Lixinski, McAdam, & Tupou on Oceans, Cultural Heritage, and Mobility Law

Lucas Lixinski (University of New South Wales (UNSW)), Jane McAdam (University of New South Wales (UNSW) - Faculty of Law & Justice), & Patricia Tupou (Australian National University (ANU) - Crawford School of Public Policy) have posted Ocean Cultures, the Anthropocene, and International Law: Cultural Heritage and Mobility Law as Imaginative Gateways (23(1) Melbourne Journal of International Law (2022)) on SSRN.  Here is the abstract:

This article argues that international legal responses to the Anthropocene cannot be adequately designed or implemented unless peoples’ cultural relationships with the oceans are taken into account. Drawing on the voices of Pacific peoples and their descriptions of the ocean as territory and a source of identity, we debunk the idea of the ocean as a static or transient place, arguing instead that it is a core element of ‘territory’, place and belonging. International cultural heritage law offers a pathway for leveraging these narratives into international legal regimes, including the development of international mobility regimes. To the extent that Pacific peoples are set to bear the brunt of the costs of the Anthropocene, and because their relationships with the oceans provide innovative ways of rethinking the design and implementation of international law, it is imperative that their voices are brought to the fore.

Shechter on Pareto-Optimal Multi-Objective Congressional Reapportionment

Steven Shechter (University of British Columbia (UBC) - Sauder School of Business) has posted Congressional Apportionment: A Multi-Objective Optimization Approach on SSRN.  Here is the abstract:

Two events, with major implications for U.S. voters, occur after each decennial census. First, congressional ``apportionment'' takes place, followed by congressional ``districting.'' Apportionment determines how to allocate the 435 seats in the House of Representatives across the 50 states, whereas districting determines the geographic boundaries assigned to representatives within each state. While districting and the practice of gerrymandering often receive great attention in the media and courts, the best way to apportion representatives across states has been debated for nearly 250 years. Historical methods (including the present method) each satisfy some desirable optimality criteria that the others are not guaranteed to satisfy. Moreover, none are guaranteed to optimize certain reasonable fairness measures (e.g., minimum range). To our knowledge, we are the first to formulate and analyze a multi-objective optimization approach to apportionment, allowing policy makers to identify Pareto-optimal allocations and quantify their tradeoffs between several competing criteria. Pareto curves from historical censuses and simulations suggest opportunities for improvement in some objectives at little sacrifice to others.

Hortal on Virtue Nudges

Alejandro Hortal (University of North Carolina (UNC) at Greensboro; Wake Forest University - Department of Philosophy) has posted Virtue Nudges: Using Choice Architecture to Form Virtuous Citizens on SSRN.  Here is the abstract:

Nudges are policy interventions intended to change people’s behaviors and habits by organizing the choice environment. They aim to facilitate the right behavior as judged by people themselves according to some objective or consensual version of wellbeing. Nudges are utilized to boost vaccinations, increase contributions to retirement accounts, or improve healthy habits in citizens. Considering the increasing number of governments and agencies employing them, some authors (Iyer 2016; Niker 2018) have wondered about the possibility of using them to help develop virtues. This paper aims to answer that question, arguing that nudges are interventions that have the potential to assist in the formation of virtuous people efficiently. They do so by inculcating or helping maintain habits in individuals, respecting their freedom to choose while guaranteeing deliberation. This paper also claims that when those habits are related to virtues, they can be classified as virtue nudges. This new category includes precisely the types of nudges that seek behavioral change through habit formation tied to virtues. Consequently, considering their low cost, potential effectiveness, and libertarian approach, the article claims that governments and other institutions should seek ways to use them in conjunction with different types of interventions to promote and form a virtuous life.

Mann on the Right to Science

Sebastian Porsdam Mann (University of Oxford) has posted The Right to Science or to Wissenschaft? A Chronology and Five Lessons from the Travaux Préparatoires on SSRN.  Here is the abstract:

Based on a detailed chronology, I argue that the drafting history of the right to science (Article 15 of the International Covenant on Economic, Social and Cultural Rights) contains important lessons for contemporary scholarship. The drafters understood ‘science’ broadly as a serious search for truth, worth protecting and promoting because it contributes to human wellbeing and to the full development and expression of the human personality. To ensure these benefits of scientific progress for all (Article 15(1)b), the drafters included a series of specific implementation measures modelled on UNESCO’s constitution (Article 15(2-4)) and intended to facilitate the free exchange of persons, equipment, ideas, and information. This exchange was seen as essential for the ability of science to progress. The drafters distinguished between the development of science itself, which must be as free as possible, and the applications of scientific development, on the uses of which aims and purposes may legitimately be imposed to prevent abuses. On the basis of this historical understanding, I argue that one object and purpose of the right to science is to facilitate, and encourage participation in, the search for truth for the benefit of all, and call for further discussion of the scope of ‘science’.

Kelsall on Critical Approaches to International Law

Michelle Staggs Kelsall (SOAS University of London) has posted Disordering International Law on SSRN.  Here is the abstract:

This article examines critical approaches to liberal internationalism in international law. It argues that, despite ongoing disavowals of the liberal international legal order, most critical international lawyers are yet to let go of liberal vocabularies in order to re-imagine how order might be constituted anew. The article proposes a disordering critique of international law. Disordering international law comprises a process of reflective discernment. Through this process, norms, conventions and principles are determined with reference to a multiplicity of spatial and temporal orders and reframe any understanding of how legal order is constituted internationally. Drawing from the concept of non-duality proposed by Ratna Kapur and the writings of Justice Cançado Trindade, it then conceptualizes a disordering sensibility. Scholars embarking on international legal disordering would ask: how do I understand the arrangement or disposition of people or things in relation to each other? How is ‘order’ determined as a result? What sequence, pattern or method am I imposing and how does that affect any characterization of ‘legal’ ordering? Whose knowledge is included, whose knowledge is excluded and why? The analysis, however, does not stop there. The further and final questions to ask are: how does this change any conception of legal ordering that remains central to the practice of international law? And how might we begin to conceptualize that order and practice differently? The return to practice provides a path towards change, which the article argues is urgently needed. I commence with some answers to these questions and hope to open a space for further disordering, premised on a turning away from dominant liberal frames.

Legal Theory Lexicon: Issue-Level and Meta-Level Questions

Introduction

There is a fundamental distinction between two kinds of questions that lawyers and judges ask.  Let's begin with some examples of what we can call "issue-level questions":

• What is the standard of care in a negligence action?
• What is the proper test for federal question jurisdiction under 28 USC §1331?
• Are laws that classify on the basis of sexual orientation subject to heightened scrutiny under the Equal Protection Clause?

These issue-level questions can be contrasted with what we can call "meta-level questions."  Here are some examples:

• Should tort law be based on ex post considerations of fairness or ex ante assessment of welfare?
• Should the interpretation of statutes be guided by the plain mean of the text, the objective purpose of the statute, or the subjective intent of the legislature?
• Should the interpretation of the constitutional text be guided by originalism or by some form of living constitutionalism?

In the first year of law school, students encounter countless issue-level questions, usually explored by discussing the cases in which they arise. Frequently, one aspect of the discussion concerns the normative question: "what should the law be?"  In common law courses, that discussion might focus on ex post considerations of fairness or ex ante consideration of policy consequences.  Those discussions are about issue-level questions. 

What about the meta-level?   At many law schools, the meta-level questions are rarely discussed explicitly, although they may be lurking in the background.  If there is a required course in Legislation and Regulation, there might be a unit on statutory interpretation and construction.  Some constitutional law courses spend a class session or two on originalism versus living constitutionalism.  Common law courses frequently include some cursory discussion of the question whether common law is discovered or made.

This entry in the Legal Theory Lexicon provides a brief introduction to the distinction between issue-level questions and meta-level questions.  As always, the Lexicon is written for law students, especially first year law students, with an interest in legal theory.

The Basic Distinction

The intuitive idea of the distinction between issue-level questions and meta-level questions is not difficult to grasp.  When the word "meta" is attached to some other word, it usually indicates conceptual ascent--going up a level of abstraction.  But "meta" indicates something else as well.  Metaethics is about fundamental assumptions in normative ethics.  Meta-level questions are about the resolution of issue-level questions. Thus, a meta-level theory of statutory interpretation aims to guide the resolution of issue-level questions about the interpretation and construction of particular statutes.  A meta-level theory of constitutional interpretation and construction tells us how to resolve issue-level questions of constitutional doctrine.  A meta-level theory of the common law instructs judges as to how they are to engage in common-law decisionmaking.

The Domains of Meta-Level Theorizing

Some meta-level theorizing takes place at a very high level of abstraction.  For example, the phrases "legal formalism" and "legal realism" (or "legal instrumentalism") are sometimes used as labels for very abstract normative legal theories.  When the words are used in this way, legal formalism combines a preference for rules over standards with the view that judges ought to consider themselves bound by written constitutional provisions, statutes, and precedent.  Legal realism is harder to pin down, but some strands of legal realism endorse standards over rules and counsel judges to attend to considerations of policy and principle; other strands of realism counsel judges to attend to the particular facts of the cases that are before them and eschew grand theories.  Many realists or instrumentalists reject the idea that judges should consider themselves bound by constitutional and statutory texts or by the formal doctrine of stare decisis.  So, normative legal formalism and normative legal realism are meta-level theories at a very high level of generality.

Other meta-level theories are less general because they focus on specific domains of law.  Here are some examples:

Meta-Level Constitutional Theories:  There are so many different views in constitutional theory!  Simplifying, we might distinguish between originalism and living constitutionalism--both of which are really families that include many members.  These days, the predominant originalist theory is "public meaning originalism," but a few decades ago, "original intentions originalism" was more common and today there is talk for "original methods originalism" and "original law originalism"--and "living originalism" as well.  Living constitutionalist views include common-law constitutionalism, constitutional pluralism, the moral readings theory, and various forms of Thayerianism (views that emphasize deference to elected officials and therefore affirm a very restrictive view of judicial review). 
"Which constitutional theory should guide judges?" is a meta-level question.

Meta-Level Statutory Theories: There are three basic approaches to statutory interpretation and construction: textualism, intentionalism, and purposivism, but there are other approaches as well, including the ad hoc pragmatism advocated by Richard Posner.  Debates about which approach to statutory interpretation is best take place at the meta-level.

Meta-Level Theories of the Common Law: Theoretical work on the common law is more difficult to organize than is the work on statutes and constitutions.  One line of meta-level disagreement concerns the question whether common-law ought to be judge-made law or whether judges should limit themselves to the discovery of preexisting social norms and customs.  Another disagreement concerns the respective roles of principle (or deontological reasoning) and policy (consequentialist reasoning).  Ronald Dworkin's theory of law as integrity posits that common-law judges ought to decide individual issues and cases in accord with the moral theory that best fits and justifies the law as a whole.  The choice between normative theories of the common law takes place at the meta-level.

Theory and Anti-Theory at the Meta-Level

The discussion so far has assumed that meta-level questions can be distinguished from issue level questions and that meta-level questions ought to be addressed from some theoretical perspective.  But this assumption is not universally shared.  Some legal theorists have anti-theoretical views about meta-level questions.  The most well-known group of anti-theorists are the pragmatists, including RIchard Posner as well as the so-called "prairie pragmatists," Daniel Farber and Suzanna Sherry.  Another strand of anti-theory draws on "particularism"--a view that is well developed in moral philosophy.  Some of the legal realists may have had particularist views.  What pragmatists and particularists have in common is an aversion to theories that abstract away from particular issues and cases.  In one sense, the antitheorists deny that there is a true distinction between issue-level and meta-level questions, but in another sense pragmatists and particularists have meta-level theories themselves.  Pragmatism is the meta-level theory that recommends pragmatic, consequence focused decisionmaking.  Particularism is the meta-level theory that counsels judges to decide each case on the basis of its particular facts.

The Role of Meta-Level Questions in Legal Practice

Much of the work of lawyers and judges is like "normal science."  There is an agreed upon framework for analyzing issue-level questions.  Lawyers make arguments within that framework.  Judges decide cases using the framework.  Meta-level questions simply don't come up.  But it isn't always like that.  Judicial agreement that statutory interpretation should be guided by legislative intent is questions; another theory, textualism, gains adherents on the bench.  Once this happens, meta-level questions arise.  There is a particular statute that raises an issue level question.  The legislative history of the statute indicates that Congress wanted the question to come out one way, but the plain meaning of the statutory text suggests a different answer.  The case now hinges on a meta-level question: which approach to statutory interpretation and construction should the court use?

In recent years, meta-level questions of constitutional theory have have arisen in the Supreme Court on a regular basis.  One of the consequences of the appointment of a significant number of originalist judges to the lower federal courts is that meta-level disputes between originalist and living constitutionalist judges have begun to surface explicitly in judicial opinions at the Court-of-Appeals level.

Conclusion

Once you become aware of the distinction between issue-level and meta-level questions, it becomes apparent that both kinds of questions are pervasive, both in law school and in legal practice.  Many of the most controversial issues in American law are controversial precisely because of a meta-level disagreement.

Related Lexicon Entries

• Legal Theory Lexicon 001: Ex Ante/Ex Post
• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 067: The Priority of the Particular
• Legal Theory Lexicon 077: Living Constitutionalism
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 095: Open and Contested Questions of Law

Bibliography

Although there distinction between "issue-level questions" and "meta-level questions" is well understood by legal theorists, there is, so far as I know, no literature on the distinction itself.  There are analogous terminological issues in philosophy.

• Geoff Sayre-McCord, Metaethics, Stanford Encyclopedia of Philosophy (2012).

(Last modified on November 27, 2022.)

Legal Theory Bookworm: "Ignorance and Moral Responsibility" by Zimmerman

The Legal Theory Bookworm recommends Ignorance and Moral Responsibility by Michael J. Zimmerman.  Here is a description:

Michael J. Zimmerman investigates the relation between ignorance and moral responsibility. He begins with the presentation of a case in which a tragedy occurs, one to which many people have unwittingly contributed, and addresses the question of whether their ignorance absolves them of blame for what happened. Inspection of the case issues in the Argument from Ignorance, whose conclusion is that, to be blameworthy for one's behaviour and its consequences, one must at some time in the history of that behaviour have known that one was engaged in wrongdoing-a thesis that threatens to undermine many everyday ascriptions of responsibility. This argument is examined and refined in ensuing chapters by way of, first, a detailed inquiry into the nature of moral responsibility, ignorance, and control, all of which play a crucial role in the argument, and then an application of the fruits of this investigation to the question of whether and how someone might be to blame for behaviour that
stems from either culpable ignorance, negligence, recklessness, or the kind of fundamental moral ignorance that often characterizes evildoers. The Argument from Ignorance implies that in a great many such cases the agent has an excuse for the wrongdoing in question. This is a disturbing verdict, and in the final chapter challenges to the argument are entertained. Despite the merits of some of these challenges, it is held that the argument, revised one last time, survives them.

 

Download of the Week: "Luck Egalitarianism and the Spirit of Capitalism" by Spector

The Download of the Week is Luck Egalitarianism and the Spirit of Capitalism by Horacio Spector.  Here is the abstract:

This paper is organized in six sections. In the following section, I discuss Dworkin’s and Cohen’s views regarding the function of markets in providing a method of social assessment. I suggest that their treatment of social valuation is of limited use because it is restricted to rudimentary economic systems like the immigrants’ island and the camping trip. In section III, I argue that the principle of responsibility is indeterminate in that it lacks a criterion of social value. I also claim that a Paretian interpretation of social value is the most plausible way to give concrete meaning to the idea of responsibility defended by luck egalitarians. Section IV contends that market prices’ information and motivational functions are empirically inseparable in any large feasible or sustainable society. In Section V, I take the argument from social valuation to its conclusion that the inequalities of condition caused by market prices are a necessary feature of the Paretian interpretation of the principle of responsibility in any feasible or sustainable economic system. In other words, under the assumption that market prices are the only available method of social valuation in large societies, the principle of responsibility presupposes the adoption of a system of social valuation that runs afoul of the principle of equality. Finally, I conclude in Section VI.

Highly recommended.

Kotani on Regulation of Sexual Imagery in Japan

Junko Kotani (Shizuoka University) has posted Regulation of Sexual Expression in Japan: Criminalisation of Non-Consensual Distribution of Private Sexual Images and Beyond (Australian Journal of Asian Law, Vol. 23, No. 2, Article 9, 125-138, 2022) on SSRN.  Here is the abstract:

Sexually explicit images are regulated in Japan for different reasons. For example, obscene expression is prohibited to protect society’s minimum standards of sexual morality and ‘harmful books’ are regulated to preserve healthy environments for youth. In recent years, the non-consensual dissemination of sexual images has become a serious social problem, which disproportionately harms women in society. In response, Japan enacted the Act on Prevention of Damage Caused by Provision of Private Sexual Image Records to address this problem and protect the reputations and peaceful private lives (私生活の平穏) of victims. The Act represents a stark contrast to the traditional prohibition of sexual images intended to protect sexual morality or healthy environments in society. This article focuses on the regulation of sexually explicit images in Japan. First, it provides an overview of the history of the regulation of sexual images and explains how the problem of the non-consensual distribution of sexual images previously fell through the gaps of the legal scheme. It then examines the Private Sexual Images Act and the concept of sexual privacy protected by the Act. Finally, it discusses the controversial 2022 legislation that has challenged the country’s adult entertainment video industry.

Lee, Schoenherr, & Starmans on Legal Uncertainty and Economic Activity

Jiwon Lee (Princeton University), David Schoenherr (Princeton University, Bendheim Center for Finance; European Corporate Governance Institute (ECGI)), & Jan Starmans (Department of Finance, Stockholm School of Economics) have posted The Economics of Legal Uncertainty on SSRN.  Here is the abstract:

In this paper, we study how legal uncertainty affects economic activity. We develop a parsimonious model that generates different types of legal uncertainty, which reduce economic activity and which can be classified as idiosyncratic (i.e., diversifiable) or systematic (i.e., nondiversifiable). We test the prediction of the model using micro-level data on bankruptcy judges and corporate loans from Korea. Exploiting differences in judges' debtor-friendliness combined with random judge assignment to restructuring cases and exogenous judge rotations in the judicial system, we compute time-varying court-level measures of debtor-friendliness and legal uncertainty. We first document that firms are more likely to file for restructuring in more debtor-friendly courts with lower legal uncertainty. We further show that legal uncertainty reduces the size of credit markets. The effects are driven by high-risk firms that are most sensitive to bankruptcy law. On examining interest rates, we find that credit supply is relatively more sensitive to systematic than to idiosyncratic sources of legal uncertainty relative to credit demand.

Kim on Expectations and Corporate Prosociality

Hajin Kim (The University of Chicago Law School) has posted Expecting Corporate Prosociality on SSRN.  Here is the abstract:

Teaching people that corporations must exclusively maximize profits can reduce “win-wins”—what is both profitable and good for society. If everyone believes that corporations must maximize profits only, nobody will protest when corporate pursuits of profits harm society—the firms were fulfilling their duty and meeting investor and consumer expectations. But what if people instead believed that corporations should consider their social impacts, even sometimes at the expense of profits? Consumers, employees, and investors might be more willing to object to corporate harms by changing their purchasing, job choice, and investing behaviors or by petitioning corporate leaders for redress. Those objections would change firm incentives. And in response to those tangible incentives, even purely profit-maximizing firms would try to do more good and less harm because doing so would be more profitable.

This paper develops and empirically tests this theory of stakeholder expectations and corporate prosociality. Two preregistered studies with nearly 1300 participants provide initial empirical support for the idea that stakeholder expectations (of exclusive profit maximization or of the possibility of corporate prosociality) affect their protest decisions. Amazon Mechanical Turk workers had the opportunity to sign a real Greenpeace petition against Amazon, the platform that runs Mechanical Turk. Those randomly assigned to learn an exclusive profit maximization norm were less likely to sign the petition than those randomly assigned to learn that firms can and should care about society. Exclusive profit maximization led participants to believe it less appropriate and effective for employees to push for social change, and that fewer firms would care and fewer others would protest. Expecting corporate prosociality instead could thus plausibly make it easier for firms to do well by doing good.

Grunwald on Racial Bias in Criminal Records

Ben Grunwald (Duke University School of Law) has posted Racial Bias in Criminal Records on SSRN.  Here is the abstract:

Objectives: Government officials use criminal records as proxies for past conduct to decide who and how to investigate, arrest, charge, and punish. But those records may be racially biased measures of individual behavior. This paper develops a theoretical definition of bias in criminal records in terms of measurement error. It then seeks to provide empirical estimates of racial bias in official arrest records for a broad swath of offenses.

Method: I use official arrest and self-reported crime data from the Pathways to Desistance study to estimate Black-to-white and Hispanic-to-white crime ratios conditional on arrest. I also develop a novel, theory-based empirical test of differential reporting across racial and ethnic groups.

Results: Compared to white subjects with the same number of arrests, Black subjects committed 53, 30, 23, and 56% fewer property, violent, drug, and DUI offenses, respectively, and Hispanic subjects committed 19 and 46% fewer drug and DUI offenses. The analysis finds relatively little evidence of differential reporting that would bias my estimates upwards, with the possible exception of drug trafficking offenses.

Conclusion: The results provide evidence that Pathways subjects’ arrest records are racially biased measures of their past criminal behavior, which could bias decisions of criminal justice officials and risk assessment algorithms that are based on arrest records.

Recommended.

Patel on Fraud on the Crypto Market

Menesh S. Patel (University of California, Davis - School of Law) has posted Fraud on the Crypto Market (Harvard Journal of Law & Technology, Forthcoming) on SSRN.  Here is the abstract:

Crypto asset trading markets are booming. Traders in the United States presently can buy and sell hundreds of crypto assets on dozens of crypto exchanges, and this trading is expected to further intensify in the coming years. While investors are increasingly turning to crypto asset trading as a vehicle for portfolio appreciation and diversification, the popularization of secondary crypto asset trading risks significant investor harm through increased incidents of fraud. False or misleading statements by crypto asset sponsors or third parties have the prospect of financially impairing traders in crypto asset trading markets, including everyday traders who are ill-equipped to sustain significant investment losses. These significant investment losses will occur alongside and exacerbate any losses that traders may sustain through inherent changes in relatively volatile crypto asset prices.

As traders seek judicial redress for their fraud-related injuries, courts will be asked to make doctrinal determinations that will be pivotal to injured traders’ ability to recover. A primary issue that courts will need to confront is whether crypto asset traders can avail themselves of Fraud on the Market in connection with claims asserted under SEC Rule 10b-5 or CFTC Rule 180.1. This Article addresses that question and has as its intended audience not just academics, but also courts, practitioners, and market participants.

The Article shows that as a doctrinal matter Fraud on the Market is available in securities and commodities fraud cases involving crypto assets that trade on crypto exchanges, especially in light of the Supreme Court’s decision in Halliburton II, which resolved that Fraud on the Market is predicated on just a generalized notion of market efficiency, rather than a strict financial economic notion of efficiency. Drawing on how courts apply the doctrine to fraud cases involving stock transactions, the Article articulates a framework for how Fraud on the Market should be applied to the crypto asset context and explores methodological issues relevant to the framework’s application in a given crypto asset case.

Christensen on Justice Sites and International Criminal Law

Mikkel Jarle Christensen (iCourts, Faculty of Law, University of Copenhagen) has posted Justice Sites and the Fight against Atrocity Crimes on Cambridge Core.  Here is the abstract:

This article develops a new conceptual framework designed to critically study how locality and transversal power relations structure activity and developments in the global field of international criminal justice. The framework is built around the concept of “justice sites,” defined as localities in which organized and social labor—in this case, working with international criminal justice—takes place. The potential effects of social labor performed in specific sites of justice are structured partly by their locality and the resources to which it gives access and partly by their structural position in wider transversal chains of cooperation and competition that cut across different globalized and national fields. In addition to structuring the connections between justice sites, transversal power relations link sites of justice to “practice sites” embedded in other fields in which localized, social labor is not routinely engaged with international criminal justice. Such linkages demonstrate how the framework, developed to study how locality and transversal relations shape the fight against atrocity crimes, can also be used to investigate sites engaged in and across other globalized and national fields of justice, law, governance, and security.

Giving Thanks

It is my custom to mark Thanksgiving each year on Legal Theory Blog by giving thanks.  In the past, I have thanked my own teachers both in law and philosophy.  This year, I want to thank my students.  There have been thousands, starting 37 years ago at Loyola Law School, followed by students at the University of Southern California, Boston University, the University of San Diego, the University of Illinois at Champagne-Urbana, Georgetown University, and the University of Virginia.

As the years go by, I have come to realize that teaching is truly a two-way street--and that over the years my colleagues in the classroom have taught me much more than I have ever taught them.

One student, from my very first year of teaching, David Meadows, has been in touch for all of these years.  Thank you, David, and thanks to each and every student with whom I have shared a classroom.

Stazi on Smart Contracts

Andrea Stazi (European University of Rome - Faculty of Law; National University of Singapore (NUS) - Faculty of Law) has posted Smart Contracts: Elements, Pathologies and Remedies (Forthcoming in: Law and Change: An Asian Perspective, edited by J. Loo & N. Remolina Leon, SMU, 2022) on SSRN.  Here is the abstract:

In reviewing the characteristics of “smart contracts”, above all their peculiarities of automatic execution and resistance to tampering, the paper aims to define the characteristics and peculiarities of their binding force, legal effectiveness and regulation. Thus, the paper examines the elements, pathologies and contractual remedies for smart contracts, and the related main issues that emerge in comparative contract law.

Patrick on Trial by Jury and the Australian Constitution

Jeremy Patrick (University of Southern Queensland School of Law) has posted Trial by Jury, the Great Constitutional Bait-and-Switch on SSRN.  Here is the abstract:

Section 80 of the Australian Constitution provides for trial by jury of all Federal crimes tried by indictment. However, careless framing of the provision and over-literal interpretation by the High Court of Australia has rendered the provision a nullity. Who should bear the brunt of the blame: the framers or the High Court? This draft chapter is part of a manuscript in progress that examines provisions of the Australian Constitution that have little to no operative legal effect: either through poor drafting or poor interpretation.

Here is Section 80:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Recommended!

Begadze on Opposition Led Subnational Governments in Hungary, Poland, and Turkey

Mariam Begadze (Central European University; Central European University - Democracy Institute) has posted Playbook of Subnational Illiberalism: Autocrats face the Opposition-led Local Governments (The Hague Journal on the Rule of Law (Forthcoming)) on SSRN.  Here is the abstract:

Recognizing the growing tensions between autocrats in the center and opposition-led local governments in Hungary, Poland and Turkey since 2018-2019 local elections, the article contributes to existing literature on illiberal democracies with a subnational portion of illiberal playbook. Tactics identified through the detailed study of the European context and brief review of Latin American experience leaves us with the following categories in the playbook: abuse of (existing) supervisory and accountability mechanisms; generating of financial vulnerability; centralization (outright and indirect) and deconcentration. Each of these categories assemble various means evolving through application and reinterpretation of traditional rules pertaining to local government, as well as crisis-induced innovations. While the Polish account carries the optimism still that antecedent robust guarantees and popular support matter even when illiberals rule the center, the playbook proved successful in Hungary and Turkey. Although certain incrementalism stayed as the most vulnerable actors were the first victims of soon-to-be normalized measures, crisis in Hungary and Poland did stretch the limits to the point that ulterior motives of undermining opposition-led local governments became publicly observable. Reflecting on this phenomenon, in the end, the article poses a theoretical question whether such pretextual instrumentalization of law can itself be judicially manageable, at least in situations when clear political opponents are targeted.

Mökander, Juneja, Watson, & Floridi on U.S. Algorithmic Accountability Act of 2022 & the European Artificial Intelligence Act

Jakob Mökander (University of Oxford - Oxford Internet Institute), Prathm Juneja, David Watson (King's College London), & Luciano Floridi (University of Oxford - Oxford Internet Institute; University of Bologna- Department of Legal Studies) have posted The US Algorithmic Accountability Act of 2022 vs. The EU Artificial Intelligence Act: What can they learn from each other? (Minds & Machines (2022)) on SSRN.  Here is the abstract:

On the whole, the U.S. Algorithmic Accountability Act of 2022 (US AAA) is a pragmatic approach to balancing the benefits and risks of automated decision systems. Yet there is still room for improvement. This commentary highlights how the US AAA can both inform and learn from the European Artificial Intelligence Act (EU AIA).

Lewis on Precedent in General and a Duty to Advance the Rule of Law

Sebastian Lewis (University of Oxford) has posted Towards a General Practice of Precedent (Jurisprudence, forthcoming 2023) on SSRN.  Here is the abstract:

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent -- even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court (‘the Null Model’), and this runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent -- stare decisis -- but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty.

Eskauriatza on Complete Labeling and Domestic Prosecutions for Crimes Against Humanity

Javier Eskauriatza (University of Nottingham) has posted 'Complete Labelling' and Domestic Prosecutions for Crimes against Humanity (32 Criminal Law Forum (2021) 473–509) on SSRN.  Here is the abstract:

Fair labelling is an established principle of criminal justice that scrutinises the way that States use language in labelling criminal defendants and their conduct. I argue that “complete labelling” is a related but separate principle which has not received any explicit attention from commentators. Whereas fair labelling focuses, usually, on the protection of defendant’s rights, the principle of complete labelling explains and justifies whether the labels attached appropriately represent the nature and scale of the wrong done to the community. As a case study, I apply this lens in the context of regional (U.S./Mexican) criminal justice responses to crimes against humanity perpetrated by “drug-cartels” in the context of the Mexican Drug War. Successive administrations in Mexico and the U.S. have tended to charge cartel leaders (and/or their political supporters) with so-called “transnational crimes” (for example, drug-trafficking, money-laundering, bribery/corruption). This is despite the fact that many of the most powerful cartels have controlled territory, attacked entire towns, carried out acts of terror, and disappeared thousands of people. The principle of complete labelling is useful in normative terms because it helps in the critical examination of a State’s prosecutorial practices, exposing problems that might otherwise be missed. In relation to the case study discussed, for example, a focus on complete labelling helps to expose the regional prosecutorial policy as either an unjustified exercise in selectivity or, at worst, an expression of collective denial. After considering certain counteracting reflexions which speak to some of the foundational anxieties of international criminal justice, the article concludes that domestic prosecutions for crimes against humanity in the context of drug-cartels may, sometimes, be justified.

Alexander on Perry on Disproportionate Racial Impact

Larry Alexander (University of San Diego School of Law) has posted Michael Perry and Disproportionate Racial Impact (Journal of Contemporary Legal Issues, Vol. 23, No. 2, 2022) on SSRN.  Here is the abstract:

I am delighted to be contributing to this festschrift honoring Michael Perry. He and I go back a long way. He may not remember how far back, but I do. In 1980, when Michael was a faculty member at Ohio State’s law school, he organized a symposium on John Ely’s recent Democracy and Distrust, and he invited me to contribute to it, which I did. (The contributions were published in the 1981 volume of the Ohio State Law Journal.) I am not sure Michael knew me then, or why he invited me, but we have known each other and had both an intellectual and personal relationship ever since. Indeed, even as I was writing this, I was looking forward to receiving Michael’s contribution to a symposium I had organized and, COVID willing, to seeing him in person at that symposium. (Unfortunately, family matters prevented him from coming.)

I am assuming that most of the contributors to this festschrift will focus their remarks on Michael’s human rights literature. After all, international human rights, and how they should bear on constitutional adjudications in the United States, has been Michael’s preoccupation for many years and the subject of his many books. And surely it is a topic, or set of topics, that merits the attention I expect it to receive in this festschrift. Nonetheless, human rights and how they relate to the U.S. Constitution will not be my focus. I intend to look at Michael’s early work, and in particular, his work on equal protection. I think some of what Michael wrote on this topic was misguided. But I focus on it, not to find a bone to pick somewhere in Michael’s impressive body of work, but because his error in that early work has an analogue in today’s political discourse, which makes that error of many years past of contemporary importance.