Legal Theory Blog

Hemel & Hamilton on Law and Time

Daniel J. Hemel (New York University School of Law) & Matthew Hamilton (University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program, Students) have posted Coordination, Conflict, and the Laws of Time (Research Handbook of Law and Time (F. Fagan & S. Levmore eds., Edward Elgar 2024)) on SSRN.  Here is the abstract:

The laws of time—the rules and conventions that determine how we organize our calendars and set our clocks—play a central but often underappreciated role in structuring our daily rhythms and social interactions. This chapter explores the evolution of the laws of time across countries and across centuries. Drawing from the game-theoretic literature on coordination, we present three models—a pure coordination game, an assurance game, and a “Battle of the Sexes” or “Bach/Stravinsky game”—that capture different aspects of time-related lawmaking. We then apply these models to five case studies that evince both coordination and conflict over the laws of time: the transition from the Julian to Gregorian calendar in early modern Europe, the emergence of standard railway time in the 19th century United States, the global adoption of Greenwich Mean Time, the century-long struggle over daylight saving time, and the ongoing controversy over “leap seconds.” These case studies both elaborate and complicate the game-theoretic models, demonstrating the utility and limits of game theory as a framework for understanding complex social phenomena.

We go on to appraise time’s lessons for law and the social sciences. First, the study of time sheds light on the subtleties of the relationship between law and power. The seemingly neutral laws of time often produce non-neutral distributional consequences, reflecting and reinforcing political, military, and economic power. Yet we also find that otherwise-powerless groups sometimes prevail in struggles over clocks and calendars, while international standards for time do not simply reflect the impositions of the most powerful nation-states onto the less powerful. Second, the study of the laws of time helps us to untangle the relationship between national identity and international society. Nation-states sometimes seek to articulate distinct identities by adopting non-standard time conventions—but even in those cases, international society shapes the ways in which states express their distinctiveness. Third, the study of the laws of time offers insights into the nature of network effects. Alongside the classic network-effect story, in which network standards become more attractive as they become more widespread, we show how network standards sometimes prompt social and religious groups to adopt nonstandard time conventions as a means of maintaining group cohesion. We conclude by comparing the laws of time to the laws governing other measures, such as length, mass, and temperature. While the metric movement has brought other measures to a state of long-term stability throughout most of the world, we identify particular features of time that are likely to make it a perennial target for reformers and revolutionaries.

Interesting and recommended.

Legal Theory Lexicon: Default Rules and Completeness

Introduction

At some point in the introductory class in contract law, students are likely to encounter a very powerful idea--the distinction between "default rules" and "mandatory rules."  The basic distinction is easy to grasp.  Some rules of contract law supply default terms that are subject to contractual override; other rules of contract law are mandatory--they can't be modified by the contract.  Lurking in the background of this distinction is a theoretical construct--the complete contract, an idealized contract that would include explicit terms covering every possible contingency.  Once you understand the distinction between default rules and mandatory rules, additional questions arise: as a matter of normative contract theory, which rules should be default rules and which rules should be mandatory?  And what normative principles should guide the design of default rules?

As always, this post in the "Legal Theory Lexicon" series is aimed at law students--especially first year law students--with an interest in legal theory.

Default Rules and Mandatory Rules

Let's start with the "takeaway" point.  In contract law, we can sort the rules into two sorts, "default rules" and "mandatory rules."

Here's an example.  The Uniform Commercial Code (or UCC, the codified law of contract that applies to contracts between businesses as a matter of state law in the United States) creates a duty to act in good faith--this is a mandatory rule, because this duty cannot be disclaimed by a contractual provision.  The UCC also includes an implied "warranty of merchantability," that attaches to contracts, but can be waived by agreement--this is a default rule.

Grasping this distinction is important for at least two reasons.  First, unless you know whether a given rule of contract law is a default rule or a mandatory rule, you don't really know the law.  And it isn't always clear whether a given rule is one or the other: the usual tipoff is language like, "unless the contract provides otherwise" or "absent an agreement to the contrary."  Second, the distinction between default rules and mandatory rules is fundamental to the normative structure of contract law.  Learning contract is more than a matter of mastering the rules; mastering the arguments of principle and policy that can be used to argue for and against the rules is equally important.  But the arguments for default rules and the arguments for mandatory rules must be different--because these two kinds of rules have different functions.

Generalizing the Idea of a "Default Rule" 

Although the notion of a "default rule" is usually introduced to law students in the context of contract law, the idea is more general.  For example, we could think of the law of wills and intestate succession through this theoretical lens.  Rules of intestate succession are "default rules" that can be overridden by a will.  Much of the law of wills consists of default rules, and we can imagine a "complete will" that covered every possible contingency.

Similarly, we can imagine a "complete code" that covers every possible action or inaction and specifies what legal consequences follow.  Given that actual codes are incomplete, we can look at the law of statutory interpretation as including a collection of "default rules" that allow courts to fill in the gaps.  Another example is provided by corporations law--once again, some of the rules are mandatory and others are merely defaults.

You get the idea--default rules can be applied to any authoritative legal text that is "incomplete."

Normative Theories of Default Rules 

Once we understand the distinction between default rules and mandatory rules, we can then ask the question, "What normative principles should guide the design of default rules?"  For example, we might decide that lawmakers (legislators or common-law judges) should attempt to devise the default rules that are most likely to be the rules that the parties would have adopted had they contracted on the issue.  Or we might want "efficient" default rules.  Or default rules that maximize utility.  All of these approaches are associated with normative law and economics.  But there are other approaches as well.  For example, we might try to design default rules so that they maximize the autonomy or liberty of the parties to the contract--imposing the fewest possible restrictions that have not actually be agreed to by the parties.  Or we might impose default rules that will serve some other goal such as distributive justice or economic equality.

Default Rules as Public Goods 

Another interesting question is why the law provides default rules at all.  Why don't we force the parties to reach complete agreements?  Immediately, of course, we realize that this would be very costly.  Drafting a complete contract would almost always (perhaps always) cost more than the contract is worth.  And there is another problem as well.  Most contract provisions are not protectable as intellectual property; in general, you can't copyright or patent a nifty contractual provision.  (You may be able to copyright the specific language, but that doesn't preclude someone else from expressing the idea in different language.)

This suggests an interesting perspective on the economics of default rules.  We might see the default rule provisions of contract law as a "public good."  That is, consumption of default rules is "nonrivalrous"--because my use of a given provision doesn't interfere with your ability to use the same provision.  And consumption of default rules is "nonexcludable"--assuming that there is no intellectual property protection available for "form contracts" or "form contract provisions."  If this is correct (and it may not be), then there is a classic economic justification for government to provide for the "public good."  For more on the idea of a public good, see Legal Theory Lexicon 029: Public and Private Goods.

Complete Contracts 

Now that we have the basic distinction between default and mandatory rules in mind, let's discuss the related idea of a complete contract.  Once again, the core intuitive idea is relatively simple--a complete contract has provisions that cover "every contingency."  In other words, a complete contract has no gaps.

Why did I put "every contingency" in scare quotes?  Because "every contingency" is an ambiguous way of formulating a fairly complex idea.  We need some special terminology here.  Economists tend to use the phrase "states of affairs" to express the idea of a contingency.  A "state of affairs" is simply a way that the world can be--a complete specification of the way things are.  Philosophers use different jargon--the phrase "possible world" expresses the same idea as "state of affairs."

So a truly "complete" contract would be a contract that specified the duties and rights of the parties for all the future states of the world--or all the possible worlds that share the history of the actual world up to the point the contract is formed.  Once you think about it, it becomes clear that no actual contract could be complete.  There are infinitely many possible future states of the world--and a contract that covered all of them would have an infinite number of provisions, and hence the drafting of such a contract would never be complete--it would still be unfinished when the universe reached a state of complete entropy.

So the notion of a complete contract is an idealization--not a practical option.  And once we see this point, another point becomes obvious.  Contract law cannot provide default rules to cover every possible contingency either.  Of course, as a practical matter, contract law doesn't have to cover all the contingencies.  Some possible future states of the world are so remote or far-fetched that they can safely be disregarded--Martian invasions and/or the discovery of a true universal fabrication machine (3D printers are not even close) are not contingencies about which we need worry.

The General Idea of Completeness 

Just as the idea of a default rule can be generalized beyond contract law, so can the idea of completeness.  So we can imagine "complete wills," "complete corporate charters," "complete trusts," and so forth.  One particularly important idealization is the idea of a "complete code"--a legal code that itself has provisions that cover every possible contingency.  The complete code will have default rules or mandatory rules that for every possible future state of affairs.

Conclusion 

Well, as is usually the case, we've barely scratched the surface.  Nonetheless, I hope this Lexicon entry has given you a basic framework for understanding the ideas of a complete contract and the distinction between default rules and mandatory rules.  Once you have this ideas in your conceptual toolkit, you are likely to start noticing them in all kinds of contexts, not just in contract law, but in every legal subject you encounter.  When you do, you might ask yourself, "Why is this a default rule rather than a mandatory rule?," or vice versa.  And, "What normative legal theory or principle supports this choice?"

Related Lexicon Entries

• Legal Theory Lexicon 013: Conduct Rules and Decision Rules
• Legal Theory Lexicon 029: Public and Private Goods
  
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 036: Indeterminacy
• Legal Theory Lexicon 051: Vagueness and Ambiguity

Bibliography

• Ian Ayers & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale Law Journal 87 (1989)
• Ian Ayers, Default Rules for Incomplete Contracts.
• The Desert and the Jungle: Alan Schwartz and Robert Scott on Contract Theory
• C A Riley, Designing Default Rules in Contract Law: Consent, Conventionalism, and Efficiency, Oxford Journal of Legal Studies, Volume 20, Issue 3, AUTUMN , Pages 367–390.
• Curtis Bridgeman, Default Rules, Penalty Default Rules, and New Formalism, 33 Fla. St. U. L. Rev. 683 (2006).
• Ariel Porat & Lior Jacob Strahilevitz, Personalizing Default Rules and Disclosure with Big Data, 112 Mich. L. Rev. 1417 (2014).

Resources on the Web

• Default Rules on Wikipedia
• Complete Contract on Wikipedia
• Ian Ayres, Default Rules vs. Mandatory Rules, YouTube

 

(This entry was last updated on December 2, 2023.)

Legal Theory Bookworm: "The Experiences of International Organizations" by d'Aspremont

The Legal Theory Bookworm recommends The Experiences of International Organizations: A Phenomenological Approach to International Institutional Law by Jean d'Aspremont.  Here is the abstract:

This groundbreaking book uses the idea of experience to investigate the various ways in which international organizations are understood and captured by judges, legal practitioners, legal researchers, legal theorists, and thinkers of global governance.

Adopting a unique phenomenological approach, Jean d’Aspremont questions the key patterns of thought that inform the legal practice of international organizations, arguing that said organizations are the product of five specific experiences: affection, insulation, edification, restriction, and conciliation. Through this critical lens, d’Aspremont highlights the limits of the current conceptualizations of international organizations which populate legal practice and legal literature. In doing so, the book crucially develops contemporary discourse on how international lawyers build their claims about the status, rights, duties, responsibilities, failures and falls of international organizations; and assesses how international organizations are thought about in relation to international law, international relations and studies of global governance.

Insightful and thought-provoking, this distinct approach will be a fundamental resource for researchers, scholars and theorists in law and politics, legal theory, international relations and public international law. Professionals and practitioners working in these sectors will also find this book an enlightening read.

And from the reviews:

‘Standing on top of Mount Olympus as well as in the valley below, over the last decade or so Jean d’Aspremont has been creating a genre all his own, best seen as ‘confessional phenomenology’ perhaps. He is not unique in looking at what (mostly academic) international lawyers do, but where others look at how international lawyers contribute to justice or injustice, oppression or emancipation, d’Aspremont turns his gaze inward, reflecting on what drives those international lawyers, including (and occasionally especially) himself. The result, here as elsewhere, is insightful and sometimes infuriating, eye-opening and occasionally trivial, with lots of ideas to explore and some to disagree with. In other words, The Experiences of International Organizations is vintage d’Aspremont.’ -- Jan Klabbers, University of Helsinki, Finland

‘The phenomenological approach to law fits in with the latest scholarly insights and trends. It is therefore timely to provide a subjective, experiential perspective on what is perceived by many as the sturdiest and most objective of all legal occurrences: the international organisation. This book carefully lays out such a phenomenological perspective, with the author’s signature combination of eloquence and analytical rigour. A must-read for anyone who wishes to keep ahead in international (institutional) law scholarship.’ -- Catherine Brölmann, University of Amsterdam, the Netherlands

Download of the Week: "Life After Erie" by Sachs

The Download of the Week is Life After Erie by Stephen E. Sachs.  Here is the abstract:

Erie Railroad Co. v. Tompkins is the most important case that no one who isn’t a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts. That proposition is often false. But the problem with Erie isn’t this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but “a particular way of looking at law.” Erie rejected a category of law—sometimes called general common law, or just “general law”—which was fundamental to our federal system, and the absence of which has left us unable to understand basic aspects of American jurisprudence.

This lecture, delivered on the occasion of the author’s appointment as Antonin Scalia Professor of Law, explores what life will look like after Erie—how the law will operate on the happy and glorious day when Erie has been overturned. This is not a prediction that Erie will be overturned. Though some legal seismologists have discerned rumblings in that direction, we have no guarantee that courts will get things right: the arc of jurisprudence does not always bend toward intellectual coherence. Rather than make predictions, it sets out a research agenda, attempting to think through some of the problems overruling Erie may pose—so that when the time comes to reconsider Erie, those who do so will have a clear path to follow.

The most important feature of life after Erie may not be any particular doctrines the courts enforce, but the attitude with which they enforce them. To reject Erie is to recognize, as Francis Bacon put it, and as Justice Scalia noted in Rogers v. Tennessee, that the judge’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” When this power to make law is conferred by a statute or a constitution, maybe a judge can lawfully wield it. But one hopes that, after Erie, we will recognize this authority as one that no officials, least of all judges, have any right to arrogate to themselves.

Gluck, Burch, & Zimmerman on Bankruptcy and Mass Litigation

Abbe R. Gluck (Yale University - Law School), Elizabeth Chamblee Burch (University of Georgia Law School), & Adam S. Zimmerman (USC Gould School of Law) have posted Against Bankruptcy: Public Litigation Values versus the Endless Quest for Global Peace in Mass Litigation (Yale Law Journal Forum, Vol. 131, Forthcoming 2024) on SSRN.  Here is the abstract:

Can bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?

These questions have finally reached the Supreme Court in Harrington v. Purdue Pharma L.P., the $6 billion bankruptcy that purports to achieve global resolution of all current and future opioids suits against the company and its former family owners, the Sacklers. The case provides a critical opportunity to reflect on what is lost when parties in mass torts find the “behemoth” litigation system unable to bring mass disputes to a close, when they charge multidistrict litigation as a “failure,” and when defendants contend that sprawling lawsuits across national courts have thrown them into unresolvable crisis that only bankruptcy can solve. The case is just one of many recent examples of extraordinarily unorthodox and creative civil procedure maneuvers—in both the bankruptcy and district courts—that push cases further away from the federal rules and the trial paradigm in the name of settlement.

Unlike ordinary state and federal trial courts, bankruptcy courts don’t generally lay blame for millions of deaths; they efficiently distribute resources. Petitioners in bankruptcy aren’t called “victims” or “plaintiffs”; they are “creditors” with limited voting rights over the distribution of an estate. Bankruptcy courts don’t develop state tort doctrines. They don’t engage in broad discovery designed to reveal accountability and spur policy reform. They rarely utilize juries or hear testimony from tort victims anxious to have their day in court; instead, testimony tends to focus on the debtor’s financial health.

Yet diverse defendants—many of whom, notably, are not even in financial distress—from Catholic Diocese and Boy Scout abuse cases, to Johnson & Johnson talc, 3M’s earplugs, Revlon hair straighteners, and many more, have now looked to the bankruptcy court to use its inherent authority to invent new forms of procedure to find a path to global peace. Bankruptcy courts are attractive in part because they possess some powers that, ironically, state and Article III federal courts do not—they are the only American courts that can overcome federalism’s jurisdictional boundaries; they are only courts with the power to commandeer both state and federal litigants into a single forum and halt all other civil litigation no matter what court it is in. They also have stretched their own equitable powers to allow innovative corporate maneuvers, as in Purdue, that cabin liability and preclude future litigation even for entities not in financial trouble. But bankruptcy court is not supposed to be a superpower of a court that trumps all others in public litigation; it is instead, an Article I court designed for efficient, private resolution of claims, centered on capturing private value for private actors–not the elaboration and development of law and public norms.

There is a long history of creative procedures in service of global settlement. As each fails to deliver what parties want, attorneys innovate anew. If the sole goal is money, perhaps bankruptcy is an answer. But money is often one of only several goals in litigation. From discovery and limited trials in opioids and tobacco, for example, evidence about the manufacturers’ behavior emerged that not only made companies accountable, but also helped spur legislative policy change. Such evidence likely never would have come to light in a bankruptcy proceeding. There’s a reason that when Purdue filed for bankruptcy, victims of the opioid crisis cried that the company was avoiding “punishment.” Victims of the Catholic Diocese have recently charged that the Diocese’s chapter 11 filing deprived them their chance to tell their story and hold wrongdoers to account.

Forty years ago, in Against Settlement, Owen Fiss famously that civil lawsuits should be understood in light of the public good they serve, rather than the mere private ends of private dispute resolution and money changing hands. Unorthodox bankruptcies are just the latest chapter in a decades-long saga of unorthodox civil procedure development in the name of global peace—one that has largely escaped appellate review until now.

Highly recommended.

Blank & Osofsky on IRS Targeting of Taxpayers

Joshua D. Blank (University of California, Irvine School of Law) & Leigh Osofsky (University of North Carolina (UNC) at Chapel Hill) have posted Democratic Accountability and Tax Enforcement (Harvard Journal on Legislation, forthcoming, 2024) on SSRN.  Here is the abstract:

One of the most powerful charges that can be leveled against the IRS is that it is targeting taxpayers. Charges of political targeting have dogged the IRS for over a century, including in major controversies such as the so-called Tea Party auditing scandal in 2013. Commentators and scholars have long-critiqued the IRS for focusing audit resources on some of the lowest-income Americans. And, most recently, a group of researchers estimated that the IRS audits Black taxpayers at a 2.9 to 4.7 times greater rate, as compared to non-Black taxpayers. In response, legislators demanded action, there was widespread public consternation, and IRS officials stated that they were “deeply concerned by these findings.” These, and other, controversies suggest deep disdain for the targeting of taxpayers by the IRS, as well as general confusion about what it even means for the IRS to “target” taxpayers.

Despite the fact that “targeting” is a powerful accusation often leveled at the IRS, it turns out that it is very difficult to say what “targeting” means. This question is made more difficult by the fact that the IRS always must focus its resources on some taxpayers, but not others. Moreover, how best to focus tax enforcement resources is not a question that has a clear, technocratic answer. Rather, it depends on normative questions, such as how much we should prioritize taxpayers who face greater vulnerabilities. And the law provides little help in deciding when tax enforcement choices are out of bounds, as antidiscrimination law plays no real, practical role in curbing the IRS’s tax enforcement decisions.

This Article identifies how these factors lead to a democratic accountability problem at the heart of tax enforcement. Which taxpayers to pursue is a deeply value-laden question, and the IRS is left to answer it, with few legal guidelines, little ex ante oversight by the accountable branches of government, and little transparent dialogue with the public. This state of affairs inevitably leads to targeting controversies, which harm both the IRS and the public. Having identified this central problem, this Article begins to chart a path toward more democratically accountable tax enforcement. Dialogue with the public about difficult, normative tax enforcement decisions can, and should, be consistent with a successful enforcement regime.

Green on 303 Creative LLC v. Elenis and the Privileges or Immunities Clause

Christopher R. Green (University of Mississippi - School of Law) has posted Speech, Complicity, Scarcity, and Public Accommodation (2023 Cato Supreme Court Review 93) on SSRN.  Here is the abstract:

303 Creative LLC v. Elenis is the Supreme Court’s second, but almost certainly not its last, case on the extent of state power to require wedding-related professionals to participate in same-sex wedding ceremonies or their accoutrements. Five years ago, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission held, in one of Justice Anthony Kennedy’s last opinions for the Court, that Colorado had been improperly hostile to baker Jack Phillips’s religious views in requiring him to design a cake for a same-sex wedding. This time, after limiting the question presented to free speech, the Court held that requiring Lorie Smith to prepare websites for same-sex weddings if she prepared them for traditional weddings would unconstitutionally compel her to speak, akin to requiring a group to salute the flag or to add discordant elements to its parade or its membership.

Rather than grounding Lorie Smith's rights in a First Amendment that was designed as a restriction on a federal government with limited responsibilities, the Court should have instead used the Privileges or Immunities Clause of the Fourteenth Amendment, which guarantees equal civil rights, including equal professional and entrepreneurial rights, for citizens of all religious and political creeds. When the next wedding-professionals case arrives at the Supreme Court, the justices should use the original meaning of the Fourteenth Amendment to reinvigorate traditional limits on the sorts of businesses affected with a public interest, particularly the Court's 1923 holding in Charles Wolff Packing that "one does not devote one’s property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public." In markets with no local scarcity, in which those planning same-sex weddings have complete and unfettered access to goods and services, there is no constitutionally-adequate or historically-grounded justification for denying those like Jack Philips and Lorie Smith access to the market to sell their services to willing customers. The 303 Creative dissenters' arguments to the contrary do not withstand careful scrutiny.

Highly recommended.

Sachs on Life After Erie

Stephen E. Sachs (Harvard Law School) has posted Life After Erie on SSRN.  Here is the abstract:

Erie Railroad Co. v. Tompkins is the most important case that no one who isn’t a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts. That proposition is often false. But the problem with Erie isn’t this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but “a particular way of looking at law.” Erie rejected a category of law—sometimes called general common law, or just “general law”—which was fundamental to our federal system, and the absence of which has left us unable to understand basic aspects of American jurisprudence.

This lecture, delivered on the occasion of the author’s appointment as Antonin Scalia Professor of Law, explores what life will look like after Erie—how the law will operate on the happy and glorious day when Erie has been overturned. This is not a prediction that Erie will be overturned. Though some legal seismologists have discerned rumblings in that direction, we have no guarantee that courts will get things right: the arc of jurisprudence does not always bend toward intellectual coherence. Rather than make predictions, it sets out a research agenda, attempting to think through some of the problems overruling Erie may pose—so that when the time comes to reconsider Erie, those who do so will have a clear path to follow.

The most important feature of life after Erie may not be any particular doctrines the courts enforce, but the attitude with which they enforce them. To reject Erie is to recognize, as Francis Bacon put it, and as Justice Scalia noted in Rogers v. Tennessee, that the judge’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” When this power to make law is conferred by a statute or a constitution, maybe a judge can lawfully wield it. But one hopes that, after Erie, we will recognize this authority as one that no officials, least of all judges, have any right to arrogate to themselves.

Mulligan on Bruen and Diverse Originalism

Christina Mulligan (Brooklyn Law School) has posted Diverse Originalism, History & Tradition (Notre Dame Law Review, Forthcoming) on SSRN.  Her eis the abstract:

The Supreme Court’s NYSRPA v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen’s test actually fails to follow a public meaning originalist methodology. The Court focuses present-day constitutional interpreters on evidence of constitutional meaning that only reflects a portion of the public — the politically-empowered men who were in a position to pass legislation. Two unfortunate outcomes follow. First, by limiting potential evidence of public meaning so severely, the Court raises the risk that future decisions concerning regulations of arms will arrive at non-originalist results, both by the Supreme Court itself and by lower courts applying Bruen’s test. Second, by unnecessarily and incorrectly sending the message that the meaning of the Constitution to framing- and reconstruction-era white women and people of color doesn’t matter, the Bruen majority unnecessarily contributes to the narrative that originalism doesn’t care about these people, historically or today.

Highly recommended.

Macey-Dare on the Risk of Erroneous Conviction in Scottish Criminal Trials

Rupert Macey-Dare (St Cross College - University of Oxford; Middle Temple; Minerva Chambers) has posted Unsafe Convictions and High Miscarriage of Justice Risk in Scottish Criminal Law Trials? Not Guilty, Not Proven, Or Guilty as Charged? on SSRN.  Here is the abstract:

Scottish High Court criminal trials, have 2 unusual attributes. Firstly individual jurors and juries can vote Not Proven as an acquittal alternative to Guilty or Not Guilty. Secondly a majority Guilty verdict can be delivered by an 8-person majority from a jury as large as 15-strong.

This paper uses a simple mathematical model below to consider 2 related questions. Firstly, is a Not Proven jury vote or verdict a valuable additional option per se? Secondly, how safe and how high is the unsafe conviction and miscarriage of justice risk that could flow from such cases in Scotland?

Viewed in isolation the Not Proven juror and jury vote option is shown to be potentially highly valuable, because it essentially doubles the amount and precision of feedback information from any juror or jury who do not vote Guilty, to all parties including the judge. So in an ideal world without undue inertia and attachment to tradition there would be a good argument for adding in the Not Proven verdict as an additional alternative for juries in standard criminal law jurisdictions that apply the Beyond Reasonable Doubt test, e.g. as in England & Wales, USA, Canada, Australia, New Zealand etc.

However paradoxically this Scottish Not Proven option can allow some Scottish law criminal Guilty convictions to be decided with very low average probability of Guilt barely above the civil Balance of Probability Threshold e.g. for a 15-person jury with 8 jurors voting Guilty and 7 jurors voting Not Guilty (as opposed to either Guilty or Not Proven). On reflection, this should not really be at all surprising, because a bare Scottish majority Guilty decision is effectively just a Balance of Probability of Guilty Votes test.

This leads to the dramatic conclusion that the current Scottish criminal court jury system verdict acceptance rules may be fundamentally flawed and not fit for purpose, because the current risks of unsafe convictions and miscarriage of justice are likely to be far too high.

The paper then estimates how high under an adjusted system a majority decision would be needed for reasonably high safety and low enough miscarriage of justice risk in such cases. The adjusted estimates are 14* Guilty to 1* Not Guilty, or 12-15* for Guilty and 3-0* for Not Proven, so a very significant adjustment clearly needed from where Scots criminal law conviction threshold is currently set today.

Finally proposed changes in the expected: “Victims, Witnesses and Justice Reform (Scotland) Bill” to increase the required juror majority to 2/3 for a valid Guilty verdict, to reduce jury size from 15 to 12, and to remove the Not Proven verdict option, are analysed and shown to have likely mixed impacts, partially improving verdict soundness and partially reducing residual miscarriage of justice risk from future Scottish jury Guilty verdicts, so arguably taking net steps in the right direction.

Ronsoni & Luttmer on "Elucidating Law" by Dickson

Bárbara Ronsoni (Universidade Federal do Rio Grande (FURG)) & João Henrique Luttmer (Faculty of Law of the University of Lisbon) have posted Book Review: Julie Dickson, Elucidating Law (Forthcoming in Vol 49(1) of the Journal of Legal Philosophy) on SSRN.  Here is the abstract:

Book Review of Julie Dickson's 'Elucidating Law'. Oxford: Oxford University Press, 2022.

Joyce on Climate Injunctions

Samuel Joyce has posted Climate Injunctions: The Power of Courts to Award Structural Relief Against Federal Agencies (Stanford Environmental Law Journal, Vol. 42, No. 2, 2023) on SSRN.  Here is the abstract:

In the landmark climate suit Juliana v. United States, a group of youth plaintiffs asserted that the federal government violated their constitutional rights by promoting climate change, and asked the court to develop and supervise a plan to reduce carbon dioxide emissions. While the plaintiffs’ assertion of a constitutional right to a stable climate drew headlines, their requested relief—a structural injunction—was equally distinct in recent litigation. The idea of a court overseeing agency policymaking might seem unusual, but the structural injunction has a long history in American law, most prominently in school desegregation cases. This paper assesses the continuing relevance of this instrument in addressing global climate change, drawing on case studies of successful and unsuccessful structural injunctions against the federal government to evaluate the prospects of a more limited climate injunction.

Part II of this paper explores the origins of the structural injunction in the era of desegregation, the scholarly debate over its function, and its relevance to the Juliana suit. Part III provides four case studies of structural injunctions against the federal government, and elucidates that, historically, successful injunctions have been limited to a single agency or program and have relied on the cooperation of the agency to succeed in effectively reshaping the targeted program. Part IV analyzes these case studies in light of the injunctive relief requested by plaintiffs in Juliana, which demanded action from several different agencies and required complex judicial intervention that the appeals court was unwilling to entertain.

This paper suggests that the relief requested by the plaintiffs in Juliana was overly broad. But it argues that, despite the failure of Juliana, courts still have significant latitude to restrict federal activity contributing to climate change. It proposes a narrowly tailored structural injunction targeted at the Bureau of Land Management’s fossil fuel leasing program as one example of how a more targeted injunction might succeed.

Satta on Partisanship and Religious Conviction

Mark Satta (Wayne State University) has posted Political Partisanship and Sincere Religious Conviction (Brigham Young University Law Review, Vol. 47, No. 4, 2022) on SSRN.  Here is the abstract:

In order for a religious conviction to receive protection under the First Amendment or the Religious Freedom Restoration Act (RFRA), it must be a sincere religious conviction. Some critics of the Supreme Court’s ruling in Burwell v. Hobby Lobby have suggested that the plaintiffs in that case and in related cases were motivated more by political ideology than by sincere religious conviction. The remedy, they argue, is for courts to be quicker to scrutinize claims of religious sincerity. In this Article, I consider another possibility—namely, that current sociopolitical partisanship in the United States has eroded a clear distinction between political ideology and religious conviction for plaintiffs in cases like Hobby Lobby. If this theory is correct, it is far less obvious what the proper remedy is. I consider and reject the view that newly formed religious convictions with political origins should be treated as less than sincere on those grounds. However, I do argue that whether a religious conviction seems to have been newly generated by political circumstances should be taken into account when deciding religious free exercise cases. I suggest that this could best be accounted for if the courts adopted a balanced interests approach instead of the winner-takes-all “checklist” approaches that have developed under Employment Division v. Smith and RFRA.

Auer on Modern Property Discourse

Marietta Auer (Max Planck Institute for Legal History and Legal Theory) has posted Modern Property (forthcoming in: Paul B. Miller and John Oberdiek (eds.), Oxford Studies in Private Law Theory, vol. 3 (OUP)) on SSRN.  Here is the abstract:

In the present analysis, I argue that modern property discourses mirror the aporetic
normative structure of the modern legal consciousness. I distinguish between the ‘first
modernity’ and the ‘second modernity’, and argue that both are a necessary part of modern property theory. The first modernity describes the affirmative strand of Enlightenment modernity, emphasising the justifiability of individual rights on the basis of personal freedom. In property theory, this strand of thinking spurred the formation of modern property concepts by forging the Roman-Blackstonian notion of dominium into a normatively justified individual right. Yet, this first modernity of property theory was from the outset countered by an opposite tendency of critical deconstruction, which I refer to as the second modernity. I argue that the constant tension between the first and second modernities in the normative foundations of property resonates in recent critical debates on property as a right to a thing versus a mere ‘bundle of sticks’ or property as a function of public policy and ‘the social’ rather than as a private right.

Smith on Communities of Competitors

Fred O. Smith, Jr. (Emory University School of Law) has posted Communities of Competitors: Toward Leveraging the Region's Contradictions (24 Theoretical Inquiries L. 151 (2023)) on SSRN.  Here is the abstract:

Fragmented regions face a range of collective action problems on issues ranging from transportation to affordable housing. Specifically, within regions, free-rider and race-to-the-bottom problems both abound. This Article offers theoretical lenses to clarify the sources of, and barriers to solving, these problems. First, it introduces the concept of concentricity to better understand the region. The municipality and the region represent coexisting, concentric communities and nodes of competition. The geographically based identity that one espouses may toggle between the local and the regional across different contexts. Second, this Article describes a community-competitor feedback loop. Drawing on social science literature, the Article shows how encouraging deep identification with a community can inspire competition with other communities. And encouraging competition between communities can deepen community identity. The Article then applies these theories to practical considerations. Given the persistent nature of hyperlocal identity, intraregional competition, and the resultant feedback loop, mandatory regional solutions may often be politically unattainable, even when they are the optimal solution. Accordingly, this Article presents two voluntary, cooperative regionalist solutions that embrace and potentially exploit regions’ concentric identities, instead of doing the more costly work of dislodging local identity.

Solow-Niederman on FTC Privacy Regulation

Alicia Solow-Niederman (The George Washington University Law School) has posted The Overton Window and Privacy Enforcement (34 Harvard Journal of Law & Technology, Issue 3 (forthcoming 2024)) on SSRN.  Here is the abstract:

On paper, the Federal Trade Commission’s consumer protection authority seems straightforward: the agency is empowered to investigate and prevent unfair or deceptive acts or practices. This flexible and capacious authority, coupled with the agency’s jurisdiction over the entire economy, has allowed the FTC to respond to privacy challenges both online and offline. The contemporary question is whether the FTC can draw on this same authority to curtail the data-driven harms of commercial surveillance or emerging technologies like artificial intelligence.

This Essay contends that the legal answer is yes and argues that the key determinants of whether an agency like the Federal Trade Commission will be able to confront emerging digital technologies are social, institutional, and political. Specifically, it proposes that the FTC’s privacy enforcement occurs within an “Overton Window of Enforcement Possibility.” Picture the FTC Act’s legal standards as setting forth a range of lawful enforcement behavior for the agency—a range within which further choices must be made. Within this lawful space, just as a politician’s “Overton Window of Political Possibility” will not include every possible policy option, the agency’s Window will not include every possible enforcement option. Rather, the Window for privacy enforcement—the space within which the agency might operate—will be sharply informed by four critical forces: social norms; institutional norms within the agency; the courts; and Congress.

This approach highlights how the agency’s enforcement actions do not occur in a rigidly fixed domain; rather, they unfold within a dynamic space that can change over time, subject to both forces inside the agency and external to it. What’s more, understanding enforcement as a process in this way surfaces an often-overlooked point for federal legislation that seeks to endow new or existing agencies with additional regulatory authority: without a sufficiently large Window within which the agency can operate, all the theoretical grants of power in the world will have little impact on the ground. That’s a sobering lesson. But it’s empowering, too. For one, it suggests strategies for administrative officials who seek to exercise their enforcement authority, such as attempting to ground more progressive or novel actions in topics with thick social consensus. For another, it pushes policymakers seeking to empower agencies to consider institutional design; to account for the practical realities that an agency must confront, over time; and to think creatively about where there might be play in the joints.

Lanier on Juvenile Diversion and Plea Bargains

Jackson Lanier (North Carolina Central University (NCCU) - School of Law) has posted Plea Problems and Diversion Dilemmas: Protecting Juvenile Rights Through Pragmatic Means on SSRN.  Here is the abstract:

This paper examines issues surrounding plea bargains and diversion programs in the juvenile justice system, focusing on the need to safeguard juveniles' constitutional rights. Drawing on case studies like A.S. v. State and In Re S.W.N., it highlights how failures to ensure juveniles' decisions are voluntary, knowing, and intelligent can jeopardize rights to counsel and against self-incrimination. The paper argues that participation in diversion programs, which often mandate admissions of guilt, should be treated similarly to plea bargains. It cautions against automatically providing counsel, instead advocating for a pragmatic, sliding scale approach adapted to juveniles' capacities and offenses. Key factors include considering juveniles' backgrounds, risk levels, and potential deprivations of liberty. This balances protecting rights with court efficiency and resources. The paper contributes to discussions on reforming juvenile justice to uphold justice and constitutional protections through practical means.

Rector on "Property, Power and Politics" by Robé

Tully Rector has posted Book Review: Capital, Autonomy, and the Limits of Corporate Critique (Journal of Law and Political Economy, 3(3)) on SSRN.  Here is the abstract:

Jean-Philippe Robé’s Property, Power and Politics: Why We Need to Rethink the World Power System presents, primarily in its second half, a forensic study of the advantages firms are afforded by their corporate structure, and their use of those advantages to externalize costs, evade political obligations, shield themselves from accountability, and denature the legal orders in which they operate. It is a very valuable contribution. My focus here concerns a constellation of elements central to this system of advantages. These are: the specific kind of property owned and controlled by firms; that property’s power-conferring features; and the normative criteria by which its present distribution and use should be assessed. I want to put pressure on Robé’s treatment of the first and second topics, using a more robust conception of capital, and critique on that basis his assumptions regarding the third. My overall point is that—while the book exposes the pathologies of the multinational system, and cogently explains how they operate—corporate power is condemned in that analysis by normative reasons that, when systematically examined, bear with equal force upon the powers of private capital more broadly. This vitiates the book’s final remedies. Its “rethinking” effort is incomplete.

Schmidt on "The Shadow Docket" by Vladeck

Thomas P. Schmidt (Columbia University - Law School) has posted Orders Without Law (Michigan Law Review, Forthcoming) on SSRN.  Here is the abstract:

This is a book review of The Shadow Docket: How the Supreme Court Uses Stealth Rulings To Amass Power and Undermine the Republic, by Professor Stephen Vladeck. It has two goals. The book, by design, largely steers clear of concrete reform proposals; its object is to trace the ways that the Court’s practices around emergency applications shifted over the Trump years, and to urge that these developments warrant critical attention. My first goal is to propose some reforms. These proposals orbit around a central contention: that any critique of the shadow docket and any proposed solution must depend, explicitly or implicitly, on a theory of the Court - its role in the constitutional order and how it can best serve that role. As a descriptive matter, the Court’s present role was articulated by Taft and realized by the Judges’ Bill: it sits primarily to declare broadly important legal norms. The emergency docket should be understood as an adjunct to that primary function, not as an alternative route to fulfill it.

My second goal is to suggest that, in some respects, Vladeck’s critique of the shadow docket does not go far enough. One of the challenges in assessing the “shadow docket” is that it is not a single thing, but an amalgam of varied practices not susceptible to a uniform prescription. Vladeck’s focus is the emergency docket, and his claim, at bottom, is that the merits docket—with its signed opinions, reasoned orders, oral argument, and so on—is the paradigm of regularity to which the Court’s emergency docket should aspire. At times, though, Vladeck gestures toward a more radical thesis: since the Judges’ Bill, it is the shadow docket—in particular, certiorari—that has really defined the Court’s institutional identity, not the merits docket. Everything the Court does on the merits docket happens only because of a prior shadow docket decision. And when it makes those shadow decisions, the Court has virtually unbounded discretion. The merits docket, in other words, is a small, manicured island on a vast sea of discretion. I close by suggesting that public law theory often fails to confront this stubborn institutional fact. If that is right, the debate about the shadow docket will and should long outlive the present controversy over standards for emergency relief.

Bonadio & Khan on Reggae and Copyright

Enrico Bonadio (City University London - The City Law School) & Bryan Khan (The University of the West Indies; The University of the West Indies; The University of the West Indies) have posted Remix, Reuse and Reggae: Creativity and Copyright in Jamaican Music (in Enrico Bonadio - Chen Zhu (eds.), Music Borrowing and Copyright Law, Hart Publishing 2023) on SSRN.  Here is the abstract:

What makes the story of the rise of reggae music so fascinating are the circumstances in which the genre evolved. It seems to have been birthed by a cosmic alignment of the right social and cultural factors, rather than an anticipatable evolution of existing cultural institutions. Unlike neighbouring islands, which had hosted vibrant creole musical cultures since the nineteenth century, a formal music scene was not a major component of the Jamaican cultural landscape until the mid-twentieth century.

And the contributions to global culture made by the Caribbean Island of Jamaica are remarkable given the country’s size. The country has birthed many musical genres which have made a mark on popular culture, including mento, ska, rocksteady, reggae, and dancehall, and these genres have in turn influenced a wide range of musical subcultures from American hip-hop to British drum and bass, and beyond.

Against this broad history, this chapter explores the factors that facilitated the creative processes of Jamaican music scene, and its remarkable rise as global cultural force. Specifically, it provides a discussion on the history of Jamaican music, with a focus on the social and creative norms of remix and reuse. In doing so, the chapter features numerous examples of Jamaican songs.

Ryu on Moral Duties, Constitutive Reasons, and Law

Angelo Ryu (University of Oxford - Saint John's College) has posted How Reasons Make Law (Oxford Journal of Legal Studies (accepted, 2023) on SSRN.  Here is the abstract:

According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.

Highly recommended.

López Zamora on Rights of Nature in Latin America

Luis López Zamora (Max Planck Institute Luxembourg for Procedural Law; Christian-Albrechts-Universität zu Kiel) has posted The Recognition of the Rights of Nature in Latin America – The Lost Linkage with the Rights of Future Generations (in (Hélène Ruiz Fabri, Valérie Rosoux and Alessandra Donati eds.), Representing the Absent, Nomos Verlag, Baden Baden. 2023. pp. 463-496) on SSRN.  Here is the abstract:

This Chapter involves a study on the Rights of Nature (RoN). RoN comprehends the establishment of a set of specific rights, as well as the recognition of a new legal subject (nature) at the national and at the international levels. For example, on the international level, various international forums slowly envision nature as a potential right holder. Even though this has yet to transpire in formulating and adopting an international treaty establishing that, the language of the RoN now commonly appears in different international soft law documents. Latin American jurisdictions have served as inspiration for those documents, since the recognition of RoN in the region has been considered as paradigmatic. However, the regional recognition of nature's rights has not been free of ambiguities, especially when it is considered together with the recognition of another new legal entity: the Future Generations. The interactions between those new right holders in Latin America have been scarcely studied; this contribution seeks to fill that gap.

Breydo on Infrastructure and Racism

Lev E. Breydo (Villanova University - Charles Widger School of Law; University of Pennsylvania Carey Law School - Student/Alumni/Adjunct) has posted Inequitable Infrastructure. An Empirical Assessment of Federalism, Climate Change & Environmental Racism (North Carolina Law Review, Forthcoming) on SSRN.  Here is the abstract:

This Article explains a critical, yet unexplored issue: how are communities like Jackson – the 80% Black capital of Mississippi – often left without water or electricity, while their mostly-white neighbors are not?

The Article maps uncharted territory by interrogating the underlying causes of this disparity, making essential contributions to the literatures on environmental racism and federalism – particularly by illustrating the disparate impact of federalist infrastructure policy. The analysis details how seemingly unrelated forces – including federal, state and local policies, as well as municipal finance – interplay with climate change to perpetuate systemic resource inequities.

Three factors are most pertinent to untangling the issues. First, almost uniquely among developed economies, the U.S. federalist model allocates infrastructure responsibility to the states, which sub-delegate it to local governments. Under the guise of autonomy, this leaves the least-resourced governmental units responsible for expenses far beyond their means. Second, because of this funding mismatch, local governments must borrow heavily through complex municipal instruments that provide investors wildly underappreciated power over critical assets.

Finally, the first two factors interplay dangerously with the continuing effects of U.S. segregationist policy, which has concentrated historically marginalized groups in areas with low-quality, debt-laden infrastructure, often most acutely exposed to climate change. As a result, communities from Mississippi to Puerto Rico and Michigan increasingly lack basic resources that most Americans take for granted.

Recognizing the need for a new approach, the Biden administration has enacted an ambitious – though underappreciated – legislative package that reflects an evolution of the federalist infrastructure construct: Biden’s “Infrastructure New Deal.” However, while well-intentioned, the Infrastructure New Deal may disappoint. The Article’s empirical and legislative analysis identifies a number of critical shortcomings, including inadequate funding and inapposite structure, and suggests mitigating strategies based on comparative assessment of other countries’ successful approaches.

Leblond on Federalism and Digital Trade in Canada

Patrick Leblond (University of Ottawa; Center for Interuniversity Research and Analysis on Organization (CIRANO)) has posted Federalism and Digital Trade (Research Handbook on Digital Trade, edited by David Collins and Michael Geist, Edward Elgar, 2023) on SSRN.  Here is the abstract:

Policy actions at the subnational level can affect digital trade. For instance, privacy or data protection laws adopted by Canadian provinces or states in the United States could limit digital trade in some cases. Another possibility is the imposition of data localization requirements in public procurement undertaken by subnational governments. Hence, federalism and multilevel governance matters for digital trade. Yet, this is an area of research that has been neglected so far by scholars of digital trade. This chapter is a first attempt to understand how federalism affects international digital trade. It does so by examining the relationship between federalism and digital trade in Canada and the United States, focusing on policies adopted by subnational governments that affect digital trade. It then analyses how digital trade provisions in the United States-Mexico-Canada Agreement (USMCA) – as it applies to both Canada and the US – impose constraints on subnational governments’ ability to adopt policy measures that could impede cross-border digital trade.

Citron on Privacy

Danielle Keats Citron (University of Virginia School of Law) has posted A More Perfect Privacy (Boston University Law Review, Forthcoming) on SSRN.  Here is the abstract:

Fifty years ago, federal and state lawmakers called for the regulation of a criminal justice “databank” connecting federal, state, and local agencies. There was bipartisan concern that the system imperiled constitutional commitments and people’s crucial life opportunities, including jobs, education, housing, and licenses. Bipartisan congressional concerns of the 1970s should be cause for re-invigoration, not resignation. Recounting the insights of members of the 93rd and 94th Congresses should embolden us. Their concerns clarify the headwinds that reformers face. Then, as now, powerful interests want us to think that privacy and public safety are incompatible. They want us to view diminished expectations of privacy as acceptable, even valuable. Revisiting this history should remind the public that totalizing surveillance is neither acceptable nor desirable. Privacy can and should be ours.

Highly recommended.

Psygkas on Administratie Democracy and Federalism

Athanasios Psygkas (Western University - Faculty of Law; Yale University - Law School) has posted Administrative Democracy and Federalism (Public Administration and Expertise in Democratic Governments: Comparative Public Law in the Twenty-First Century (Routledge, Forthcoming)) on SSRN.  Here is the abstract:

This chapter connects two themes in Susan Rose-Ackerman’s seminal contributions to comparative public law and political economy: public participation in administrative policy-making (“administrative democracy”) and federalism. It puts forward an ideal type of federal-state interaction that can lead to the development of effective administrative democracy. This scheme consists of feedback loops, whereby the center may adopt a particular accountability mechanism, potentially in the form of a minimum standard, that it can impose on the periphery or indirectly influence the periphery to adopt. The component entities of the federal system “download” this minimum standard and are free to move beyond it and to experiment with procedural modes that operationalize it and may enhance democratic accountability in the periphery. The emphasis in this scheme is on procedural innovation instead of substantive policy innovation. Some of these good practices might be subsequently “uploaded” onto the center and be generalized or spread across state borders. The chapter explores how this hypothesis plays out in three examples of federal or decentralized systems – the United States, the European Union, and Canada – which illustrate different aspects of these feedback loops and the interactions between federalism and administrative democracy.

Mühlhoff & Ruschemeier on Democratizing AI

Rainer Mühlhoff (University of Osnabrück) & Hannah Ruschemeier (University of Hagen - Department of Law) have posted Democratising AI via Purpose Limitation for Models (AI for People Conference Proceedings - forthcoming) on SSRN.  Here is the abstract:

This paper proposes the concept of purpose limitation for models as an approach to democratising AI via effective regulation. We aim to define the purposes of machine learning models built for predictive analytics and generative AI in democratic processes. Unregulated (secondary) use of specific models creates immense individual and societal risks, including discrimination against individuals or groups, infringement of fundamental rights, or distortion of democracy through misinformation. We argue that possession of trained models, which in many cases consist of anonymous data (even if the training data contains personal data), is at the core of an increasing asymmetry of informational power between data companies and society. Combining ethical and legal aspects in our interdisciplinary approach, we identify the trained model as the object of regulatory intervention instead of the training data. This altered focus adds to existing data protection laws and the proposed Artificial Intelligence Act, which are inefficient in preventing the misuse of trained models due to their focus on the procedural aspects of personal data or training data. By enabling the concept of risk prevention law and the principle of proportionality, we argue that the potential use of trained models in ways that are damaging to society by powerful actors warrants preventive regulatory interventions. Thus, we seek to balance the asymmetry of power by enabling democratic control of where and how predictive and generative AI capabilities may be used by identifying beneficial purposes.

Celislami, Kastoryano, & Mastrobuoni on Strategic Opacity and Police Killings

Elda Celislami (University of Reading), Stephen Kastoryano (University of Reading), & Giovanni Mastrobuoni (University of Turin - Collegio Carlo Alberto; Centre for Economic Policy Research (CEPR); IZA) have posted Strategic Bureaucratic Opacity: Evidence from Death Investigation Laws and Police Killings on SSRN.  Here is the abstract:

Police accountability is essential to uphold the social contract. Monitoring the monitors is, however, not without difficulty. This paper reveals how police departments exploit specific laws surrounding death investigations to facilitate the underreporting of police killings. Our results show that US counties in which law enforcement can certify the cause of death, including counties which appoint the sheriff as the lead death investigator, display 46% more underreported police killings than their comparable adjacent counties. Drawing on a novel adapted-LATE potential outcomes framework, we demonstrate that underreported police killings are most often reclassified as 'circumstances undetermined' homicides. We also show that law enforcement agencies in counties with permissive death certification laws withhold more homicide reports from the public. The main underreporting results are primarily driven by underreporting of White and Hispanic deaths in our analysis sample, with the effect on Hispanic people particularly pronounced along the US-Mexico border. We do not find that excess underreported killings are associated with more violence directed towards police. We do, however, note a nationwide positive correlation between the permissiveness of gun-laws and underreported police killings. In addition, we find more underreporting in counties which have both high per-capita Google searches for Black Lives Matter and which allow law enforcement to certify the cause of death. Our results do not indicate that other differences in death investigation systems - coroner vs. medical examiner, appointed vs. elected, or physician vs. non-physician - affect the underreporting of police killings.

Choi & Ferrara on Large Language Models & Fact Checking

Eun Cheol Choi (University of Southern California, Annenberg School for Communication, Students) & Emilio Ferrara (University of Southern California - Information Sciences Institute) has posted Automated Claim Matching with Large Language Models: Empowering Fact-Checkers in the Fight Against Misinformation on SSRN.  Here is the abstract:

In today's digital era, the rapid spread of misinformation poses threats to public well-being and societal trust. As online misinformation proliferates, manual verification by fact checkers becomes increasingly challenging. We introduce FACT-GPT (Fact-checking Augmentation with Claim matching Task-oriented Generative Pre-trained Transformer), a framework designed to automate the claim matching phase of fact-checking using Large Language Models (LLMs). This framework identifies new social media content that either supports or contradicts claims previously debunked by fact-checkers. Our approach employs GPT-4 to generate a labeled dataset consisting of simulated social media posts. This data set serves as a training ground for fine-tuning more specialized LLMs. We evaluated FACT-GPT on an extensive dataset of social media content related to public health. The results indicate that our fine-tuned LLMs rival the performance of larger pre-trained LLMs in claim matching tasks, aligning closely with human annotations. This study achieves three key milestones: it provides an automated framework for enhanced fact-checking; demonstrates the potential of LLMs to complement human expertise; offers public resources, including datasets and models, to further research and applications in the fact-checking domain.

Dench, Pineda-Torres, & Myers on Dobbs and Fertility

Daniel Dench (Georgia Institute of Technology), Mayra Pineda-Torres (Georgia Institute of Technology), & Caitlin Knowles Myers (Middlebury College; IZA Institute of Labor Economics) have posted The Effects of the Dobbs Decision on Fertility on SSRN.  Here is the abstract:

The U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization sparked the most profound transformation of the landscape of abortion access in 50 years. We provide the first estimates of the effects of this decision on fertility using a pre-registered synthetic difference-in-differences design applied to newly released provisional natality data for the first half of 2023. The results indicate that states with abortion bans experienced an average increase in births of 2.3 percent relative to states where abortion was not restricted.

Wright on Private Party Investigations and Corporate Wrongdoing

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Slightly More Than Two Cheers For Sneaky Private Investigations Into Questionable Business Operations on SSRN.  Here is the abstract:

Journalists and interest groups often investigate, more or less clandestinely, the business practices of a particular corporate enterprise. Their aim in doing so is to document and graphically publicize illegal or controversial such practices. How the criminal and civil law should respond to such undercover investigations is the focus of the inquiry below.

Ultimately, three full-throated cheers for such private-party investigations is excessive. The investigations in question may, in some cases, run up against, merely for example, limits set by valuable personal privacy rights. A mere two cheers response, however, is insufficient. The free speech-related and other public interest value of such investigations is collectively too great for only two cheers. Two and a half cheers may then seem an apt accommodation of the conflicting interests at stake. Herein, though, a slight muting of the two and a half cheers is endorsed. This final adjustment is strategically intended to encourage investigators to minimize any unnecessary harms caused by their valuable investigation and reporting in the public interest.

Grewal on the Whether the Mandatory Repatriation Tax is a 16th Amendment "Tax"

Andy Grewal (University of Iowa - College of Law) has posted The Mandatory Repatriation Tax Is Not a Tax on SSRN.  Here is the abstract:

In Moore v. United States, the Supreme Court has agreed to address whether the Sixteenth Amendment allows Congress to tax unrealized sums. The case arises over Section 965(a). Under that section, taxpayers with substantial equity interests in a foreign corporation must immediately include in income their shares of the corporation’s accumulated earnings. The parties and commentators frequently say that Section 965(a) establishes a “Mandatory Repatriation Tax.”

This amicus brief makes a subtle but critical point: Section 965(a) does not establish a tax. It requires only an income inclusion. The Sixteenth Amendment should apply flexibly when Congress adds an income item to the tax base, even if that item allegedly violates the realization requirement.

Mańko on Resisting Illiberal Legality

Rafał Mańko (Central European University, Democracy Institute) has posted Exceptio Popularis: Resisting Illiberal Legality (forthcoming in "Law, Populism and the Political in Central and Eastern Europe", edited by Rafał Mańko et al., Birkbeck Law Press (Routledge), 2024) on SSRN.  Here is the abstract:

On 22 October 2020 the Polish Consitutional Court (PCC), dominated by the conservative appointees of the ruling Law and Justice party, issued a landmark decision outlawing embryopathological abortion. For a judgment of the PCC to enter into force, it must be published in the Journal of Laws, and it is up to the Prime Minister to decide on the date. This power, initially conceived of as a purely technical act, has grown, under the rule of Law and Justice, into a de facto form of super-review of the executive over the PCC, a power used already in 2016. What is more, the decision to suspend the publication of the controversial judgment was even officially justified by the mass protests taking place in the cities and towns across Poland. Thus, the Prime Minister openly confessed that he decided to use his power of delaying the publication in order to give in to popular unrest. In order to explain what happened, the chapter – drawing on Benjamin, Schmitt and Agamben – puts forward the novel concept of exceptio popularis or the minor state of exception, defined as a situation in which the constituted power, under pressure from the people amounting to a tumultus (such as exerted through strikes or other forms of protest) suspends the operation of a certain legal norm which is the object of the people’s unrest. The “minor” state of exception is one in which the dialectics of power and subjection are somewhat reversed: it is the people which demands the suspension or abolition of the rule, and the constituted power gives in (for some time) to that popular demand.

Legal Theory Lexicon: Distributive Justice

Introduction

Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at "risk spreading"? Should the Equal Protection Clause of the United States Constitution be read as guarantee of the equal distribution of rights or resources? In order to answer these and similar questions, we need to have some account of distributive justice? What makes the distribution of liberties, income, and wealth fair? Should the law aim at equality? And if it should, what sort of equality?

This entry in the Legal Theory Lexicon will provide a brief introduction to distributive justice. As always, the Lexicon is aimed at law students (especially first-year law students) with an interest in legal theory.

Context

A prior entry in the Lexicon provided a brief overview of the idea of Justice. (Legal Theory Lexicon 018: Justice) In that entry, we divided the general topic of justice into four parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. Corrective justice is concerned with the righting of wrongs: so, in criminal law, we might be concerned with punishing crimes, and in tort law, we could focus on the rectification of wrongfully inflicted harms. Political justice is concerned with issues such as voting rights, democracy, legitimacy, and authority. Procedural justice addresses questions about the fairness of civil and criminal proceedings. Our topic today is distributive justice. As a rough and ready starting point, let's say that distributive justice addresses questions about the distribution or allocation of liberties, wealth, and income. As we shall see, one of the major debates about distributive justice will call this rough and ready starting point into question, because "liberties, wealth, and income" may be the wrong target for theories of distributive justice. But let's put that concern aside for now.

Rawls's Theory of Distributive Justice: Justice as Fairness

Discussions of distributive justice usually start with the work of John Rawls--the most influential political philosopher of the 20th century. It really isn't possible to do justice to Rawls's theory in a paragraph or two, but I'm going to try.

Let's start with the historical roots of Rawls's theory. Rawls saw his theory as an extension of the social contract tradition--associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Traditional social contract theory posits a state of nature--in which there is no government--and then asks what would be the content of a social contract--an agreement to enter civil society. If we assume that the state of nature and the social contract are hypothetical (not actual), we can then ask the question: is an agreement reached in the state of nature fair? The answer to this question might be, "No, a social contract reached in the state of nature would not be fair, because it would favor those who are advantaged by the conditions of the state of nature, e.g. the strong, the smart, and the powerful." Rawls attempted to correct that problem with classical social contract theory by positing what he called the "original position." In the original position, the parties are to agree on principles of justice to govern the basic structure of society. Unlike the state of nature, however, the original position includes a "veil of ignorance," which prevents the parties from knowing the specific characteristics of those whom they represent.

Rawls argues that the parties to the original position would choose two principles of distributive justice:

1. The Equal Liberty Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

2. The Difference Principle: Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society.

The first principle has priority over the second in cases of conflict.

In this very short introduction, we won't try to recreate the reasoning that would lead the parties to the original position to adopt the two principles. The basic idea of Rawls's argument is that the parties behind the veil of ignorance would have to take into account the possibility that they represent the least fortunate members of society. To protect the interest of those who are worst off, they would first make sure that everyone's basic rights--liberty of conscience, freedom of speech, due process--were protected: that is the role of the equal liberty principle. Then, the parties in the original position would attempt to make sure that wealth and income (and other basic goods) were were distributed so as to make the worst-off members of society as well off as they could be made: that is the role of the difference principle.

Rival Approaches to Distributive Justice

What are the alternatives to justice as fairness? Let's take a quick look at four rivals to Justice as Fairness: (1) utilitarianism, (2) egalitarianism (or "strict equality"), (3) desert, and (4) libertarianism.

Utilitarianism--Classical utilitarianism suggests that we should maximize the sum total of utility--Jeremy Bentham's slogan was "the greatest good for the greatest number." For classical utilitarians, the distribution of goods and resources doesn't matter in and of itself. What matters is how much good can be produced, not how it is distributed. This does not mean, however, that utilitarians do not care about the distribution of wealth and income. For example, a utilitarian might argue that wealth and income have "diminishing marginal utility." That is, the first $1000 of income is very important--it allows you to buy essentials like food and shelter. But the difference between $100,000 and $101,000 may be very minor--it allows you to buy a nicer car. Therefore, the utilitarian might argue that egalitarian distributions of resources will tend to increase total welfare--unless there is some countervailing reason such as increased incentives to produce useful goods and services that might result from unequal distributions of wealth and income.

Utilitarians are frequently criticized on the ground that they lack a principled objection to gross inequalities. Suppose, for example, that the total welfare of society could be improved by enslaving a small group. If this were the case, then utilitarians would be committed to the consequence that such slavery is "just" or "good," but this seems counter intuitive. Utilitarians can reply to this point in many ways, but one argument is that, in fact, slavery does not increase total utility, but actually is quite harmful. Critics are likely to say that this may usually be the case, but that utilitarianism falters on the exceptional cases where gross inequalities lead to net welfare gains. Of course, the argument can be extended by both sides, but you get the general idea.

Utilitarians are likely to object to Rawls's second principle--the difference principle--on the ground that it requires that we pay a huge penalty in total welfare to produce a small benefit for those who are least advantaged. For example, suppose that the average income could be increased by $10,000 per year if the income of the worst-off group were decreased by $10 per year. Utilitarians argue that it is wrong to deprive a large group of a very substantial amount of income in order to preserve a small amount of income for a small group. Once again, the arguments will go back and forth, but you can see how the issue is framed.

Egalitarianism--Another rival of justice as fairness is "strict egalitarianism." The difference principle permits inequalities of wealth and income if those inequalities benefit the worst-off group in society. For example, it it could be shown that private ownership of capital was required to produced economic growth that benefits even the poorest members of society, the difference principle might allow Bill Gates to accumulate billions of dollars while the poorest members of society subsisted on a tiny fraction of that. Strict egalitarians maintain that distributive justice requires that each person recieve the same share--even if the consequence is that everyone (including the worst-off) gets less than they could if inequalities were permitted.

It is very important to understand that egalitarianism comes in many forms--because egalitarians have different answers to the "Equality of what?" question--which we will cover below.

Desert--Yet another view of distributive justice would link distributive shares with desert or deservingness. In a very broad sense, one might say that all theories of distributive justice are desert-based. Egalitarian theories simply say that everyone deserves the same share. Fair enough! But I want to focus on a special kind of desert-based theory--one that focuses on merit or effort or some other quality as the basis for desert. For example, one might believe that wealth and income ought to be distributed in proportion to social contribution. If I work hard and create valuable goods or services, then I deserve a greater share of wealth and income, as compared with someone who makes a lessor contribution.

This kind of desert-based theory is quite different from justice as fairness, utilitarianism, or egalitarianism. This difference could be expressed in one of two ways. We might say that these other theories have a different conception of desert: for example, egalitarians may believe that each person is equally deserve of resources. Or we might say that the other theories deny the relevance of deserve; for example, egalitarians may believe that contribution-based desert is morally irrelevant.

Libertarianism--Libertarianism represents another approach to distributive justice. On the one hand, libertarians are likely to endorse some version of what Rawls called the equal liberty principle. That is, libertarians are likely to believe that each individual should have an equal right to basic liberties (or autonomy). On the other hand, most libertarians reject that the idea that there should be any principles that govern the distribution of resources. For libertarians, the distribution of wealth and income flows from the free choices made by individuals. That might result in relatively equal distribution of wealth and income, or it might result in massive inequalities. For the libertarian what matters is whether the transactions or transfers are themselves just. If I freely choose to sell you Whiteacre, and I gamble away the proceeds while you grow rich, then the resulting inequality is just because it result from voluntary transactions.

In a sense, then, libertarians reject the idea of "distributive justice" as applied to the distribution of wealth and income. At the same time, however, libertarians tend to be strict egalitarians when it comes to the distribution of basic liberty rights, because most libertarians believe that the basic liberties (freedom of conscience, self-ownership) cannot themselves be alienated.  So libertarianism can be described as a form of egalitarianism--where the it is liberty that must be equally distributed.

Social Justice

Another set of rivals to Rawls's theory can be grouped together under the heading "Social Justice."  One of the main criticisms of Rawls's A Theory of Justice was its neglect of topics like race, sex, gender identity, sexual orientation, and disability.  A social justice approach to distributive justice can be defined as a theory that explicitly incorporates the concept of historically disadvantaged groups into the idea of distributive justice.  By itself, such incorporation does not fully define an approach.  Social justice theories must specify some answer to the equality of what question in order to provide concrete guidance.  That question is our next topic.

The Equality-of-What Debate

One of the most interesting debates in contemporary political philosphy has been a debate among egalitarians about the proper subject of equality. Suppose you are an egalitarian. You believe that each person should recieve an equal share of whatever is truly valuable. The question is: what is it that should be divided equally?

One possibility is "wealth and income." That is, we might believe that each person should be entitled to the same annual income. That answer becomes problematic, however, because different persons have different needs. Suppose that strict equality of income would produce a share of $20,000 per person per year. You are young and in good health, and can do quite well on that sum. I am elderly and in poor health; $20,000 per year will not even pay for the medical care necessary to sustain my life.

Here is another possibility. We might aim for equality of "welfare." Of course, we would need to define welfare, and that's a tough job. Let's assume that welfare is a subjective state, produced by the satisfaction of preferences. Equality of welfare might require substantial disparities in the distribution of resources. Those who are ill or developmentally disable might require a larger share of resources to produce an equal share of welfare. Even that might be problematic. For example, those with really severe needs might require enormous resources--the possibility of very expensive high technology medicine has highlighted this possibility.

There is, however, another problem with equality of welfare. Suppose that you have simple tastes, and I have expensive tastes. You are happy with a modest house, simple food, and vacationing in the countryside. For me to achieve the same welfare level, I need a personal Gourmet chef, the finest wines and caviar, a mansion, and vacations at the Ritz in Paris. It seems quite odd to say that distributive justice requires that I get more resources than you, simply because my tastes are more expensive than yours.

I think you can already see how interesting and exciting the equality-of-what debate can be. Let me just mention some additional moves, and then stop. Another step would be to introduce the idea of equal opportunity. Thus, we might decide that it is not "equality of welfare" but "equality of opportunity for welfare" that should be the criterion for distributive justice. Another important theory, associated with the economist Amartya Sen focuses on the "capacities for valuable functionings" as the subject of equality.

Conclusion

This is another Lexicon entry that is both too long and too short. Too long because it is a bit much to swallow in one quick read, but too short because the topic of distributive justice requires many multiples of the words devoted to it here--for even a short treatment. Nonetheless, I hope I have provided enough of an introduction to get you thinking!

I've included a short bibliography and some links to other resources on the Internet!  

Related Lexicon Entries

• Legal Theory Lexicon 018: Justice
• Legal Theory Lexicon 048: Libertarian Theories of Law
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

Bibliography

• Ackerman, Bruce, Social Justice in the Liberal State (1980)
• G.A. Cohen, Rescuing Justice and Equality (2008)
• John Locke, Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought) (1988)
• Robert Nozick, Anarchy, State, & Utopia (1974)
• John Rawls, Justice as Fairness: A Restatement (2001)
• John Rawls, A Theory of Justice (1971)
• Jean-Jacques Rousseau, 'The Social Contract' and Other Later Political Writings (Cambridge Texts in the History of Political Thought) (1997)

Resources on the Internet

• Fred D'Agostino, Contemporary Approaches to the Social Contract, Stanford Encyclopedia of Philosophy
• Ann Cudd, Contractarianism, Stanford Encyclopedia of Philosophy
• Julian Lamont, Distributive Justice, Stanford Encyclopedia of Philosophy
• Fred D'Agostino, Original Position, Stanford Encyclopedia of Philosophy
• Amartya Sen, Equality of What (PDF)

 

(This entry was last revised on November 26, 2023.)