Legal Theory Blog

Oza on "Equity: Conscience Comes to Market" by Samet

Manish Oza (University of Toronto - Department of Philosophy) has posted Review of Irit Samet, Equity: Conscience Comes to Market ((2020) University of Toronto Law Journal 7(2): 216-222) on SSRN.  Here is the abstract:

A review of Irit Samet's Equity: Conscience Goes to Market (Oxford University Press, 2018).

Sinha on Virtue Jurisprudence & Resistance to Oppressive Laws

G. Alex Sinha (Quinnipiac University School of Law) has posted Virtuous Law-Breaking on SSRN.  Here is the abstract:

A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a revival over the past 65 years; but, long before that, it proved especially influential in Catholic moral thought, particularly through the work of Aquinas. Perhaps relatedly, scholars have seized on virtue jurisprudence to defend a range of politically conservative positions, such as originalist constitutional interpretation and the propriety of utilizing the law to regulate ostensibly “private” immoralities.

This Article reveals the radically underappreciated progressive promise of virtue jurisprudence. Virtue jurisprudence requires no religious commitments whatsoever, but a strong version entails acceptance of the moral significance of developing one’s character—both within and without the law. On a compelling understanding of the virtues, rejecting a state of perpetual disadvantage under the law is a meaningful marker of the virtue of self-respect, and a repudiation of the vice of servility that would otherwise be imposed by the legal system itself. Thus, contrary to the predominant tenor of research on the subject, virtue jurisprudence can ground significant resistance to and even defiance of the law. In making this argument, the Article also draws novel connections between virtue jurisprudence and literature on (inter alia) race, feminism, and sexual orientation to reveal the unnoticed potential of virtue jurisprudence to push forward work in those and related areas. At a time when massive and widespread protests across the United States reflect a groundswell of support for overturning certain long-standing, legally-ingrained, systemic disadvantages of people of color, many might be surprised to learn that virtue jurisprudence can serve as a potent theoretical ally.

Interesting and recommended.

Solum & Sunstein on Chevron as Construction

Lawrence B. Solum (University of Virginia School of Law) & Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) have posted Chevron as Construction (Cornell Law Review, Vol. 105, No. 1465, 2020) on SSRN.  Here is the abstract:

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.

This is the final version of "Chevron as Construction" with pagination.  As always, comments welcome.

Sprigman on Jurisdiction Stripping & Constitutional Change

Christopher Jon Sprigman (New York University School of Law; New York University (NYU) - Engelberg Center on Innovation Law & Policy) has posted Congress's Article III Power and the Process of Constitutional Change (New York University Law Review, Vol. 95, No. 6, 2020) on SSRN.  Here is the abstract:

Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that has how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which Supreme Court has never spoken definitively.

In this Article, I argue that Congress’s Article III power can be understood as a means by which Congress may change the Constitution without amending it. I argue, further, that we should welcome it as such. Working through the ordinary legislative process, Congress may remove the jurisdiction of federal courts to hear cases involving most questions of federal law, including cases that raise questions under the federal Constitution. To be clear, I am not arguing that the Constitution unambiguously establishes this congressional power. As on so many important issues, the Constitution is indeterminate: Article III provides a textual foundation for the power, and neither history nor precedent rule it out. In this matter, however, what Congress does is more important than anything the Constitution says. The Constitution’s indeterminacy opens a space for Congress to reclaim authority, in particular cases, over constitutional interpretation. If a determined Congress acts to fill that space, courts will have little power to resist. Correction, if it comes at all, will come from voters.

Understood this way, the implications of Congress’s Article III power are potentially transformative. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation. In either case, Congress may remove the jurisdiction of federal courts to hear constitutional challenges to its interventions. And Congress may do the same with respect to state courts.

To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.

Baughman & Wright on Prosecutors & Mass Incarceration

Shima Baradaran Baughman (University of Utah - S.J. Quinney College of Law) & Megan S. Wright (The Pennsylvania State University (University Park) – Penn State Law) have posted Prosecutors and Mass Incarceration (Southern California Law Review, Forthcoming) on SSRN.  Here is the abstract:

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings. Why?

This Article presents quantitative and qualitative data from the first randomized controlled experiment studying how prosecutors nationally decide whether to charge a defendant. We find rampant variation and multiple charges for a single crime along with the lowest rates of declination in a national study. Crosscutting this empirical analysis is an exploration of Supreme Court and prosecutor standards that help guide prosecutorial decisions. This novel approach makes important discoveries about prosecutorial charging that are critical to understanding mass incarceration.

Highly recommended.

Bernick on the Equal Protection Clause

Evan D. Bernick (Georgetown University Law Center) has posted Antisubjugation and the Equal Protection of the Laws on SSRN.  Here is the abstract:

This Article challenges 150 years of conventional wisdom regarding whether the Fourteenth Amendment protects people against “private” violence and secures “positive” rights to governmental aid. The conventional wisdom is that it does neither; this Article argues that it does both. More specifically, it contends that (1) the original meaning of the Equal Protection Clause imposes an affirmative duty on states to protect the life, liberty, and property of all people; (2) the original function of the Clause was to prevent subjugation of people’s lives, bodies, and possessions by state and nonstate actors; and (3) the Supreme Court has since its 1883 decision in the Civil Rights Cases misinterpreted the letter and undermined the spirit of the Equal Protection Clause by denying (1) and neglecting (2).

Scholars have long criticized the Court’s reasoning in The Civil Rights Cases and more recent state-action and positive-rights decisions like DeShaney v. Winnebago County Department of Social Services and United States v. Morrison. But the leading alternative theories of the Equal Protection Clause either deny that the Fourteenth Amendment contains any state-action/no-positive-rights limitations or hold that equal protection of the laws entails only a narrow duty to protect people against violence. Against the former, I ground my constitutional objection to the state-action doctrine in the original meaning of the Equal Protection Clause. Against the latter, I claim that the affirmative duty to protect guarantees not only protection against violence but protection against other forms of subjugation—that is, subjection of the bodies and possessions of some to the untrammeled will of others. An arrestee may be subjugated through a physically coercive police interrogation; an evictee may be subjugated through a civil proceeding that deprives them of their home; a criminal defendant may be subjugated by being detained owing to failure to make bail.

Putting constitutional theory in conversation with ongoing social movements, I suggest that the “Civil Gideon” movement and the Movement for Black Lives might find constitutional resources in the letter and the spirit of the Equal Protection Clause. Finally, I propose that Congress is best-situated among federal institutional decisionmakers to thwart subjugation and that the Court’s lack of confidence in its own institutional competence ought no longer serve as an excuse for disabling Congress from enforcing the Equal Protection Clause.

Highly recommended.  Download it while it's hot!

Manta & Robertson on the Case for Inalienable Citizenship & Due Process

Irina D. Manta (Hofstra University - Maurice A. Deane School of Law) & Cassandra Burke Robertson (Case Western Reserve University School of Law) have posted Inalienable Citizenship (North Carolina Law Review, Forthcoming) on SSRN.  Here is the abstract:

Over the last decade, citizenship in the United States has become increasingly precarious. Denaturalization cases increased under President Obama and skyrocketed under President Trump. No number of years spent in the United States protects individuals against sudden accusations that they procured citizenship fraudulently or were never eligible for citizenship to begin with. Moreover, the government has challenged the citizenship status even of some individuals—largely from ethnic and religious minority communities—that the government had previously recognized as citizens for decades.

If the U.S. justice system is committed to the values of reliance and finality, how can it permit citizenship to be challenged without any time limit? American courts currently do not recognize a statute of limitations for civil denaturalization or apply the traditional doctrines of equitable estoppel or laches to this context. This state of affairs is partly based on judicial misunderstanding of the property-like features of citizenship and of the punitive nature of removing it. We argue that this must change. Denaturalization and citizenship denial undermine the foundation of our democratic system by tolerating second-class citizenship and promoting chilling effects against free speech and political participation. The time has come for the legislative and judicial branches to recognize that delayed citizenship challenges violate constitutional due-process protections. Security of citizenship is an essential bedrock of our constitutional order.

Recommended.

de Montjoye, Ramadora, Valletti, & Walther on Contact Tracing Applications

Yves-Alexandre de Montjoye (Imperial College London - Department of Computing), Tarun Ramadorai (Imperial College London; Centre for Economic Policy Research (CEPR); European Corporate Governance Institute (ECGI)), Tommaso M. Valletti (Imperial College Business School; Centre for Economic Policy Research (CEPR)), & Ansgar Walther (Imperial College London) have posted Privacy, Adoption, and Truthful Reporting: A Simple Theory of Contact Tracing Applications on SSRN.  Here is the abstract:

This short paper analyses the trade-offs associated with the deployment of contact tracing applications to support policy responses in the pandemic. In many jurisdictions, the government cannot force individuals to adopt such applications. We therefore analyze a simple model that highlights the importance of individuals' incentives to voluntarily adopt a reporting application and reveal their infection status to the government who can then undertake contact monitoring. We discuss the consequences of various policy options, such as security, communication and anonymisation policies, in terms of the size and representativeness of the sample of infection data that contract tracing applications generate.

Hoss & Tanana on Tribal Sovereignty & COVID-19

Aila Hoss (University of Tulsa College of Law) & Heather Tanana (S.J. Quinney College of Law; Center for American Indian Health) have posted Upholding Tribal Sovereignty and Promoting Tribal Public Health Capacity During the COVID-19 Pandemic (Burris, S., de Guia, S., Gable, L., Levin, D.E., Parmet, W.E., Terry, N.P. (Eds.) (2020). Assessing Legal Responses to COVID-19. Boston: Public Health Law Watch) on SSRN.  Here is the abstract:

Tribes are sovereign nations with authorities and responsibilities over their land and people. This inherent sovereign authority includes the right to promote and protect the health and welfare of their communities. The COVID-19 pandemic has brought national attention to the health inequities experienced by American Indian and Alaska Native communities. The sovereign legal authority for Tribes to respond to this pandemic has received less attention. This Chapter describes some, but not all, of the urgent legal issues impacting Tribal response to the COVID-19 pandemic. It describes and identifies gaps in federal Indian health policies and highlights how Tribes have exercised their sovereignty to respond and promote resilience in the wake of COVID-19. It also provides examples of intergovernmental challenges. It highlights how ignorance of or animosity to federal Indian law has led non-Tribal governments to infringe on Tribal sovereign rights during the COVID-19 pandemic. It ends by providing a list of recommendations on how law can be better used to support Tribal responses as the pandemic unfolds.

This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.

Hoffman on the Case Against Choice of Insurance Plans under the ACA

Allison K. Hoffman (University of Pennsylvania Law School) has posted The ACA’s Choice Problem (Journal of Health Politics, Policy and Law, Vol. 45, P. 501, 2020) on SSRN.  Here is the abstract:

The Affordable Care Act (ACA) is in many ways a success. Millions more Americans now have access to health care, and the ACA catalyzed advances in health care delivery reform. Simultaneously, it has reinforced and bolstered a problem at the heart of American health policy and regulation: a love affair with choice. The ACA’s insurance reforms doubled down on the particularly American obsession with choice. This article describes three ways in which that doubling down is problematic for the future of US health policy. First, pragmatically, health policy theory predicts that choice among health plans will produce tangible benefits that it does not actually produce. Most people do not like choosing among health plan options, and many people—even if well-educated and knowledgeable—do not make good choices. Second, creating the regulatory structures to support these choices built and reinforced a massive market bureaucracy. Finally, and most important, philosophically and sociologically the ACA reinforces the idea that the goal of health regulation should be to preserve choice, even when that choice is empty. This vicious cycle seems likely to persist, based on the Democratic debates leading up to the 2020 presidential election.

Norton & Pildes on Outside Money & Governing

Mike Norton (Stanford Law School; University of Oxford - Nuffield College) & Richard H. Pildes (New York University School of Law) have posted How Outside Money Makes Governing More Difficult (Election Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Little empirical attention has been paid to the possible relationship between the sources of money in campaigns and whether political parties within the legislature are more unified or fragmented. Using recent data along with original interviews of leading party figures and former members of Congress, this article assesses how the rise of contributions from organizations outside the political parties affects the unity or disunity of the party caucus in the legislature.

With highly polarized political parties, party fragmentation makes all the more difficult the building of effective governing coalitions. Exploiting state variation in political action committee (PAC) contribution limits on party voting heterogeneity—the extent to which the caucus votes together—we find that higher levels of permitted PAC contributions decrease the unity of parties in the legislature. The results hold for both the majority and the minority party; for state legislatures that are both professional and part-time; and for whether the majority leader fully controls the legislative agenda or not. Through interviews with former party leaders, campaign committee and congressional staff, as well as rank and file members, we link this effect to federal reforms that have weakened the parties relative to outside interest groups and thus limited the leverage party leaders have to forge more unified party caucuses. As the debate over partisanship and government dysfunction in U.S. politics continues, this article adds an important component to understanding how changes in campaign finance laws have contributed to fragmenting the political parties, and hence, to making effective governing coalitions more difficult to forge.

Recommended.

Primus on the Case for Unlimited Legislative Power & Article I

Richard Primus (University of Michigan Law School) has posted Herein of 'Herein Granted': Why Article I's Vesting Clause Does Not Support the Doctrine of Enumerated Powers (Constitutional Commentary, Forthcoming) on SSRN.  Here is the abstract:

Reasoning from the nonparallel wording of the Constitution’s three Vesting Clauses, scholars across the ideological spectrum read Article I, Section 1 to establish the principle that Congress may exercise only powers affirmatively enumerated in the text of the Constitution. This “enumerationist reading” of the Clause is deeply flawed and should be discarded. It fits the Clause’s text poorly. It is in tension with important facts about constitutional structure. Perhaps for those reasons, it is not a reading of the Clause that Americans recognized in the Constitution’s first years: in the First Congress, nobody read the Clause that way, despite ample incentives to do so. If the nonparallel phrasing of the three Vesting Clauses is to be given substantive significance, a better way to do it is to read Article I, Section 1 as a limit on where legislative powers are vested, not as a limit on what powers Congress may exercise. But that reading is not free of difficulties, either. The best way to understand the non-parallel phrasing is probably to regard it as an accident of the drafting process, one that carries no substantive significance in constitutional law. Close reading is an important interpretive method, but not every word choice in a document is substantive, even when that document is the Constitution.

Highly recommended.  This version of Primus's argument is, in my opinion, much improved by engagement with John Mikhail's work on the necessary and proper clauses, The Necessary and Proper Clauses, 102 Georgetown Law Journal No. 4 (2014).

White & Reynolds on Due Process & Criminal Justice Fees

Penny White (University of Tennessee College of Law) & Glenn Harlan Reynolds (University of Tennessee College of Law) have posted Due Process in a Fee-Driven State on SSRN.  Here is the abstract:

Inspired by the Justice Department's report on criminal law enforcement and the use of courts as a revenue-generation machine in Ferguson, Missouri, we address the widespread problem of policing for profit in light of two classic Supreme Court cases on due process, and two very recent Court of Appeals cases that focus specifically on the due process implications of a justice system dependent for funding on those people it "serves." we argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights. In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system – and, indeed, the entire law enforcement apparatus – depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and resulting in a fundamentally unfair system. We then offer a number of solutions, and find Supreme Court support for our approach in a surprising place.

Recommended.

Stump on Critical Legal Research & Ecological Crisis, COVID-19, & Racial State Violence

Nicholas Stump (West Virginia University - College of Law) has posted Critical Legal Research and Contemporary Crises: Climate Change, COVID-19, and the Mass Black Lives Matter Uprising (Unbound: Harvard Journal of the Legal Left (Forthcoming)) on SSRN.  Here is the abstract:

This Article explores intertwined contemporary crises via the Critical Legal Research framework (“CLR”), as initially developed by the critical legal scholars Richard Delgado and Jean Stefancic. CLR as conceived of in this Article entails a truly radical approach to the legal research and analysis regime. While the traditional research regime—i.e., as taught in law schools and utilized in practice—functions to homogenize research outcomes towards hegemonic ends, a critically “reconstructed” approach to legal and broader socio-legal research permits more transformative futures. Specifically, CLR as deployed within such modes as radical cause lawyering can help engender genuine systemic “re-formations” of the ecological political economy beyond mere law “reform.”

Next, this Article applies the CLR framework to three intertwined crises: climate change and the broader ecological crisis (i.e., termed the “Capitalocene” by critical commentators); the COVID-19 global pandemic and accompanying social and economic catastrophe, and; the racial state violence and intersecting oppressions along lines of class, gender, LGBTQ+ status, immigrant status, etc. that catalyzed the mass 2020 Black Lives Matter uprising. This illustrative CLR application demonstrates that such crises ultimately emanate from the unjust and ecologically unsustainable white patriarchal capitalist paradigm—and that, correspondingly, CLR-influenced radical cause lawyering modes could help drive transformative futures beyond this paradigm in its entirety.

Seng on AI Detection of IP Violations

Daniel Kiat Boon Seng (National University of Singapore (NUS) - Faculty of Law) has posted Can the Ai Genie Repulse the Forty Counterfeit Thieves of Alibaba? Legal Issues on the Use of Ai to Detect and Prosecute IPR Infringement (Artificial Intelligence & Intellectual Property, 2019) on SSRN.  Here is the abstract:

Drawing from available quantitative and qualitative data, this chapter briefly identifies and describes the automated as well as the more sophisticated AI-driven systems deployed to detect and enforce IPR infringement by trademark and copyright holders in the online environment. It studies the legal basis for the use of such automated systems in copyright and trademark laws, and examines how such automated systems have upended, refocused and altered many of the issues of IPR infringement and their enforcement. This chapter will also look at the problems of non-compliant Digital Millennium Copyright Act take-down notices, opportunistic copyright trolls, and non-interventionist Internet intermediaries, review the relevant judicial and legislative treatments including those in the Directive on Copyright in the Digital Single Market, and propose possible solutions to these problems.

Georgakopoulos on the Post-WWII Red Scare Opinions of the Supreme Court

Nicholas L. Georgakopoulos (Indiana University - Robert H. McKinney School of Law) has posted The Supreme Court's Un-Americanism Pendulum (FIU Law Review, Forthcoming) on SSRN.  Here is the abstract:\

Examining the Bill of Rights through the post-WWII Red Scare opinions of the Supreme Court reveals an array of strategies of judging and interplay between the judiciary, the legislature, and the electorate. The transitions are more gradual than appointments of justices would suggest and hint toward judicial sensitivity to political undercurrents. Legislative action that mostly failed to pass had full impact on the Court’s majority. The choices of the liberal justices may have undermined their long-term interests.

Wolcher on Law & Ethics

Louis E. Wolcher (University of Washington School of Law) has posted Towards an Ethics Writ Large (Ethics: New Trajectories in Law, Forthcoming) on SSRN.  Here is the abstract:

This is the introductory chapter from a forthcoming book examining ethics at the intersection of law and justice. If law and justice are concerned with collectively establishing the general terms on which the plurality called “we” share the earth as social beings, then ethics concerns the individual Self’s particular moral relationship with the Other. Law, the acknowledged offspring of politics, represents the kind of might that most people accept as legitimate, at least most of the time. Justice, on the other hand, is supposed to vigilantly stand guard over law: to protect us against its biases and excesses, or, at the very least, to rise up and reproach the law whenever it permits or encourages injustice. But what if the belief that a particular legally-authorized state of affairs is “just” – a common enough feeling, especially amongst the privileged – or even “unjust” and in need of correction, were itself in need of a vigilant guardian? This chapter introduces the idea that ethics can and should stand guard over whatever image of justice and/or just law one happens to believe in. The book as a whole attempts to steer a perilous course between two looming moral hazards: ethics interpreted as the rational production of ethically correct behavior (as in Kant) and ethics interpreted as the spontaneous eruption of pre-rational compassion for the suffering of the Other, come what may (as in Levinas).

Baughman & Wright on Prosecutors and Mass Incarceration

Shima Baradaran Baughman (University of Utah - S.J. Quinney College of Law) & Megan S. Wright (The Pennsylvania State University (University Park) – Penn State Law) have posted Prosecutors and Mass Incarceration (Southern California Law Review, Forthcoming) on SSRN.  Here is the abstract:

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings. Why?

Important and highly recommended.

Bookman on the International Adjudication Business

Pamela Bookman (Fordham University School of Law) has posted The Adjudication Business (Yale Journal of International Law, Vol. 45, No. 227, 2020) on SSRN.  Here is the abstract:

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts challenges received accounts of the competitive relationships between and among courts and arbitral tribunals for this business. London and New York have long been considered the forums of choice in international commercial contracts-whether parties opt for litigation or arbitration. More recently, however, English- language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond.

The emerging scholarship addressing these new courts tends to view them as engaged in a global competition with each other and with arbitration to create the most efficient dispute resolution mechanism. That account oversimplifies. The creation of each of these courts is driven by multiple factors on the ground.

This Article makes four contributions to the study of international commercial courts and their relationship to arbitration. First, it offers a categorization of international commercial courts based on the forces apparently driving their creation. Second, it critiques the "race to the top" narrative both within the law- and-economics framework and outside of it, drawing attention to the range of domestic and international forces driving the courts' rise. The courts' success therefore will not necessarily be based on the excellence of the adjudication they provide, but rather on other metrics, such as the number of cases or amount of investment they attract, that reflect what drove States to create the international commercial court in the first place. Third, these courts challenge the traditional U..S. view that arbitration and litigation are opposites. In fact, international commercial courts borrow many features from arbitration, like expert adjudicators, confidentiality, and customizable procedures. These courts thus pose the questions: what characteristics of arbitration and litigation are fundamental, and what do parties prefer? Fourth, the Article celebrates procedural innovation but warns international commercial courts against becoming beholden to either sovereign or private interests.

Interesting and recommended.

Abrams on the Legislative Histories of the Early Mail Fraud Statutes

Norman Abrams (UCLA Law School) has posted Uncovered: The Legislative Histories of the Early Mail Fraud Statutes on SSRN.  Here is the abstract:

The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime—that is, not made a crime because it serves to protect direct federal interests against harm, but rather as an auxiliary to state crime enforcement. Mail fraud is also a crime that scholars, judges and lawyers have viewed as not having any significant legislative history linked to its original enactment in 1872, nor to its two early revisions in 1889 and 1909.

This paper uncovers and elaborates on legislative history details related to each of those three legislative enactments and, along the way, presents a more nuanced view of the status of mail fraud as the original federal auxiliary jurisdiction crime.

Hunt on Student Loans, School Wrongdoing, and Undue Hardship in Bankruptcy

John P. Hunt (University of California, Davis - School of Law) has posted Bankruptcy as Consumer Protection: The Case of Student Loans on SSRN.  Here is the abstract:

Over 300,000 student loan borrowers have applied to the Department of Education for administrative relief from federal student loans on the ground that they were deceived or otherwise victimized by their schools. The Department adopted relatively borrower-friendly rules for this process in 2016. But under the new administration, the Department changed course and adopted new rules that make it “nearly impossible” for student borrowers to prevail. After a presidential veto of a resolution that would have stopped the new rules, they went into effect on July 1, 2020.

With victimized students effectively deprived of administrative relief, bankruptcy provides at least a partial solution. Many such borrowers will be candidates for bankruptcy: The median loan default rate at for-profit colleges sued or investigated for wrongdoing against students is estimated at 31 percent.

To get bankruptcy relief, a debtor must show that repayment would cause “undue hardship.” Courts currently do not consider school wrongdoing in assessing undue hardship; this article argues that they should. When repayment will entail some hardship and the borrower’s decision to incur the student loan was induced by the school’s deceptive representations or unfair, abusive, or unconscionable practices, bankruptcy courts should provide relief. They should discharge at least the amount of the loan corresponding to the difference between the cost of the schooling and any value the loan holder can prove the education actually had.

Considering school misconduct is consistent with the policies underlying non-discharge-ability of student loan debt because victimized students are not abusing the system when they seek relief and because collection from them is unlikely to be cost-effective. Moreover, discharge advances the goals of the student loan program.

It might be objected that the federal government is not itself a wrongdoer in school-misconduct cases, so it should not bear losses arising from bankruptcy discharge of federal student loans. But the FTC’s Holder Rule has provided since 1976 that consumer lenders are responsible for sellers’ misconduct in analogous situations. The assumptions underlying the Holder Rule are met in student-loan cases. As between the two innocent parties, government and student, the government is both better able to absorb school-misconduct losses. The government is also better situated to prevent such losses due to its extensive supervisory powers over schools.

Guidi & Maisley on Financial Responsibility for COVID-19

Sebastian Guidi (Yale Law School) & Nahuel Maisley (University of Buenos Aires (UBA) - Faculty of Law; New York University School of Law; Republic of Argentina - Consejo Nacional de Investigaciones Científicas y Técnicas (CONICET)) have posted A Trillion Dollar Question: Who Should Pay for COVID-19? (New York University Law Review, Forthcoming) on SSRN.  Here is the abstract:

Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, President Trump and others have suggested suing China for damages. This “lawsuit-approach” draws on a deep-seated conception of international law: states have a sovereign “right to be left alone;” the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations.

In this Article, we explore this lawsuit-approach; not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic, while also pointing at deep theoretical implications that this novel crisis has for international law more broadly.

Specifically, we make three novel claims. The first is that the arguments of the lawsuit-approach (based on the International Health Regulations and on the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit-approach faces difficulties stemming from the lack of deep normative agreement, in international law, on how to deal with unprecedented challenges such as COVID-19.

Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit-approach is led back to the global conversation about the allocation of losses it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as “harm” or “causation”) making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids, and therefore requires complex reconstructions of what states owe to one another.

Our third claim further extends the foregoing reasoning. The lawsuit-approach relies on international law as a means to achieve “corrective justice,” while denying its implications for “distributive justice.” We argue that this is conceptually impossible: The general understandings we need to allocate responsibility for the pandemic are inherently distributive: To decide, an adjudicator would need to rely on a pretorian rule detailing how much effort and resources countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independently of its content. The misfortunes derived from the pandemic are not conceptually different from the misfortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit-approach might be unpleasantly surprised of where that road may lead them.

Osler on Losing the War on Drugs

Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted What We Got Wrong in the War on Drugs (University of St. Thomas Law Journal, Forthcoming 2021) on SSRN.  Here is the abstract:

The War on Drugs is effectively over. Drugs won. This essay addresses some of the mistakes we made in that futile effort. Allowing racism to motivate action and impede reform was a primary error. So was failing to understand that narcotics crime is simply different than other types of criminalized behavior in several fundamental ways. In whole, we largely addressed the narcotics trade as a moral failing rather than a market—and never got around to recognizing the size and shape of that market or to using market forces to control it. Ronald Reagan compared the War on Drugs to the Battle of Verdun, and he was right: fortunes were spent, many lives were lost, and nothing really changed.

Perez on Е-Rulemaking & Artificially Intelligent Democratic Agents

Oren Perez (Bar-Ilan University - Faculty of Law) has posted Collaborative Е-Rulemaking, Democratic Bots, and the Future of Digital Democracy (Digit. Gov.: Res. Pract. 1, 1, Article 8 (January 2020) on SSRN.  Here is the abstract:

This article focuses on “deliberative e-rulemaking”: digital consultation processes that seek to facilitate public deliberation over policy or regulatory proposals [1, 2]. The main challenge of е-rulemaking platforms is to support an “intelligent” deliberative process that enables decision makers to identify a wide range of options, weigh the relevant considerations, and develop epistemically responsible solutions. This article discusses and critiques two approaches to this challenge: The Cornell RegulationRoom project and model of computationally assisted regulatory participation by Livermore et al. It then proceeds to explore two alternative approaches to e-rulemaking: One is based on the implementation of collaborative, wiki-styled tools. This article discusses the findings of an experiment, which was conducted at Bar-Ilan University and explored various aspects of a wiki-based collaborative е-rulemaking system. The second approach follows a more futuristic Approach, focusing on the potential development of autonomous, artificial democratic agents. This article critically discusses this alternative, also in view of the recent debate regarding the idea of “augmented democracy.”

Highly recommended.

Ayres, Romano, & Sotis on COVID-19 Tracing Apps & Behavioral Economics

Ian Ayres (Yale University - Yale Law School; Yale University - Yale School of Management), Alessandro Romano (Bocconi University - Department of Law; Yale Law School), & Chiara Sotis (London School of Economics & Political Science (LSE)) have posted How to Make COVID-19 Contact Tracing Apps Work: Insights From Behavioral Economics on SSRN.  Here is the abstract:

Due to network effects, Contact Tracing Apps (CTAs) are only effective if many people download them. However, the response to CTAs has been tepid. For example, in France less than 2 million people (roughly 3% of the population) downloaded the CTA. Against this background, we carry out an online experiment to show that CTAs can still play a key role in containing the spread of COVID-19, provided that they are re-conceptualized to account for insights from behavioral science. We start by showing that carefully devised in-app notifications are effective in inducing prudent behavior like wearing a mask or staying home. In particular, people that are notified that they are taking too much risk and could become a superspreader engage in more prudent behavior. Building on this result, we suggest that CTAs should be re-framed as Behavioral Feedback Apps (BFAs). The main function of BFAs would be providing users with information on how to minimize the risk of contracting COVID-19, like how crowded a store is likely to be. Moreover, the BFA could have a rating system that allows users to flag stores that do not respect safety norms like wearing masks. These functions can inform the behavior of app users, thus playing a key role in containing the spread of the virus even if a small percentage of people download the BFA. While effective contact tracing is impossible when only 3% of the population downloads the app, less risk taking by small portions of the population can produce large benefits. BFAs can be programmed so that users can also activate a tracing function akin to the one currently carried out by CTAs. Making contact tracing an ancillary, opt-in function might facilitate a wider acceptance of BFAs.

Recommended.

Hughes on Democratic Participation in Judicial Lawmaking

Robert Hughes (Legal Studies and Business Ethics Department, The Wharton School) has posted Judicial Democracy on SSRN.  Here is the abstract:

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law.

Majority rule by legislatures is not the only defining feature of democracy; rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic.

Legal Theory Lexicon: Theories of Statutory Interpretation and Construction

Introduction

Although the first year of law school is weighted towards the study of common law subjects (contracts, common law crimes, property, and torts) with perhaps some civil procedure and constitutional law, most modern law involves statutes and regulations.  This entry in the Legal Theory Lexicon provides a basic introduction to theories of statutory interpretation and construction with an emphasis on the three most basic approaches to statutory interpretation (textualism, intentionalism, and purposivism).  As always, the Lexicon is aimed at law students with an interest in legal theory.

Interpretation and Construction

For the purpose of this Lexicon entry, the terms "interpretation" and "construction" are given technical definitions, as follows:

Interpretation refers to the activity of discovering the linguistic meaning of the statutory text.

Construction refers to the activity of determining the legal effect to be given to a statutory provision.

Many legal theorists use these terms interchangeably to refer to the conjunction of these two ideas.  For the purposes of this Legal Theory Lexicon entry, a complete theory of statutory interpretation and construction would both provide an account of the linguistic meaning of the statutory text (interpretation) and the legal effect to be given that meaning (construction).  This distinction is discussed more detail in the Lexicon entry on the interpretation-construction distinction.

Most of the theoretical disagreements about statutory interpretation and construction actually concern "construction"--although there are some controversies about "interpretation" as well.  Textualists believe that statutory construction should be constrained by statutory interpretation: legal effect should follow linguistic meaning.  But intentionalists and purposivists have a different view; they believe that the linguistic meaning of statutory texts ought to be subordinated to other considerations (subjective legislative intent or objective statutory purpose).

Let us take a look at the three most basic approaches to statutory interpretation and construction: textualism, intentionalism, and purposivism.

Textualism

The first approach is "textualism" or "plain meaning textualism."  The core idea of this approach is simple: the legal effect of a statute should be consistent with the statute's linguistic meaning in context.  So when a judge interprets a statute, the judge ought to determine what the language of the statute means.  That meaning (or communicative content) can then be translated into an authoritative construction of the statute and applied to particular issues and cases.

There is more than one possible candidate for the "linguistic meaning" of a statute.  The least plausible candidate is the "literal meaning" of the words.  The problem with literal meaning is that it fails to take context into account, but without consideration of context, most statutes are likely to be irreducibly ambiguous.  For example, context is necessary in order to determine whether a statute that regulates "banks" is targeted at river banks or financial institutions.  Plain meaning textualism takes context into account by focusing on the meaning of the statutory text that can be grasped by considerations of the whole statute and the general purpose the statute is designed to serve.  The words of the statute control, but when those words are ambiguous or incomplete, they are to be understood contextually.

Intentionalism

A second approach to statutory interpretation focuses on the intentions of the lawmakers.  In the case of a federal statute, that relevant body is Congress and hence intentionalists aim for a construction of the statute that accords with congressional intent.

Intentions are mental states, but the the legislators who draft and then enact statutes can have many different mental states that a relevant to statutory interpretation and construction.  One kind of intention can be called the "communicative intention" of the legislature.  Communicative intentions specify the content that the legislature intended readers of the statute to grasp.  If the drafters of the statute used words in their usual and ordinary senses, we would expect that the communicative intentions of the legislators would be very similar to the plain meaning of the statutory text.

But there is another kind of legislative intent that might be relevant to statutory interpretation and construction.  Legislators may intend for a statute to produce certain effects; for example, they may intend that the statute serve certain purposes, achieve certain goals, or be applied in certain ways.  These subjective intentions may be reflected in the legislative history of a statute and could then be used to guide the process of statutory construction--determining the legal effect that courts will give the statutory text.

Whereas plain meaning textualism focuses on the meaning of the text itself, this second kind of intentionalism prioritizes legislative history--in cases in which the legislative history provides clear evidence of what effects, purposes, goals, or applications were intended by the legislature.  As I am using the word "intentionalism," it refers to the view of statutory interpretation that prioritizes the will of the legislature as expressed in the legislative history of the statute.

Purposivism

One way of using the phrase "statutory purpose" could refer to the subjective intentions of the legislature, but the phrase can be used in another way to refer to the "objective purpose of a statute"--the purpose that a reasonable, public-spirited, or ideal legislature would have had if it had passed the statute.  Anyone who is familiar with the ways in which actual legislatures operate in the "real world" will realize that the actual purposes of legislators concerned with raising money and pleasing constituents may be quite different from the idealized purposes of reasonable legislators.  Real-world legislators may pass legislation with the aim of favoring a politically powerful special interest group, whereas an ideal legislature will always have a purpose that advances the public good.

As I am using the term "purposivism" it refers to the approach to statutory interpretation that maintains that the legal effect of a statute should be determined by the objective purpose of the statute.  That is, statutes should interpreted to have their reasonable meaning--even if that meaning diverges from the plain meaning of the text or the subjective intentions of the actual lawmakers.

The relationship between "intentionalism" and "purposivism" is tricky.  Some theorists run these two approaches together, and others use the terminology in different ways.  For the purposes of this Lexicon entry, intentionalism is a subjective approach that emphasizes legislative history as guide to the will of the legislature whereas purposivism is an objective approach that focuses on an inquiry into the purposes that an ideal legislature would have had if it had enacted the statute to achieve the public good.

Other Approaches to Statutory Interpretation and Construction

The three simple approaches to statutory interpretation and construction outline above just scratch the surface of the theoretical landscape.  One of the most important contemporary theorists of statutory interpretation is Professor William Eskridge, who is an advocate of the approach that he calls "dynamic statutory interpretation."  The dynamic approach, as defined by Eskridge, requires judges to interpret statutes "in light of their present societal, political, and legal context."  Judge Richard Posner has developed an approach to statutory interpretation that reflects his general approach to jurisprudence, which he calls "pragmatism."  And there are many other contemporary approaches to the theory of statutory interpretation and construction.

Descriptive and Normative Theories

As in other areas of the law, it is important to distinguish between descriptive and normative theories of statutory interpretation and construction.  The descriptive question is what do courts actually do when they engage in statutory interpretation and construction.  The best answer to this question may be somewhat messy.  Different judges apply different approaches in statutory cases, and even the same judge may use different methods on different occasions.  The normative question asks what judges should do when they interpret statutes.  The arguments for textualism are likely to emphasize the idea of the rule of law and the concerns for legitimacy and separation of powers that counsel a modest judicial role.  The arguments for textualism are likely to be based on the superior democratic legitimacy of legislatures and the idea that the role of judges should be that of a faithful agent of the legislature.  The arguments for purposivism and for dynamic and pragmatic approaches are likely to focus on outcomes and the idea that judges can improve statutes if they are given authority to consider arguments of policy and principle when they determine what legal effect should be given to statutory text.

Conclusion

Statutory interpretation and construction is certainly one of the most important topics in contemporary legal theory.  This Lexicon entry provides a very basic introduction to the three basic approaches (textualism, intentionalism, and purposivism).

Related Lexicon Entries

• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 022: Intention
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 056: Pragmatism
• Legal Theory Lexicon 063: Interpretation and Construction
• Legal Theory Lexicon 071: The New Originalism
• Legal Theory Lexicon 079: Communicative Content and Legal Content

Bibliography

• William Eskridge, Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987).
• Victoria Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70-152 (2012).
• Richard A. Posner, What Has Pragmatism to Offer Law?, 63 So. Cal. L. Rev. 1653 (1990).

(Last updated on September 13, 2020.)

Legal Theory Bookworm: "Too Much Information" by Sunstein

The Legal Theory Bookworm recommends Too Much Information: Understanding What You Don't Want to Know by Cass R. Sunstein.  Here is a description:

How information can make us happy or miserable, and why we sometimes avoid it and sometimes seek it out.
How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? Can we do anything useful with next week's weather forecast for Paris if we are not in Paris? In Too Much Information, Cass Sunstein examines the effects of information on our lives. Policymakers emphasize “the right to know,” but Sunstein takes a different perspective, arguing that the focus should be on human well-being and what information contributes to it. Government should require companies, employers, hospitals, and others to disclose information not because of a general “right to know” but when the information in question would significantly improve people's lives.

Sunstein argues that the information on warnings and mandatory labels is often confusing or irrelevant, yielding no benefit. He finds that people avoid information if they think it will make them sad (and seek information they think will make them happy). Our information avoidance and information seeking is notably heterogeneous—some of us do want to know the popcorn calorie count, others do not. Of course, says Sunstein, we are better off with stop signs, warnings on prescriptions drugs, and reminders about payment due dates. But sometimes less is more. What we need is more clarity about what information is actually doing or achieving.

Download of the Week: "Is Administrative Summary Judgment Unlawful?" by Platt

Alexander I. Platt (University of Kansas School of Law) has posted Is Administrative Summary Judgment Unlawful? (Harvard Journal of Law and Public Policy, Vol. 44, No. 1 (Forthcoming Jan. 2021)) on SSRN.  Here is the abstract:

When the Securities and Exchange Commission (SEC) files an administrative enforcement action, the respondent is ordinarily entitled to present their case orally at an in-person hearing before one of the agency’s Administrative Law Judges. But, in hundreds of administrative proceedings over the past 25 years, the agency has skipped over this in-person hearing, instead resolving actions on motions for “summary disposition.”

This is illegal. Most SEC administrative proceedings are governed by the Administrative Procedure Act’s (APA) provisions governing “formal” adjudications. One of those provisions – long overlooked or misinterpreted by scholars and courts – can only be reasonably interpreted as granting respondents an absolute right to an oral hearing in cases where the agency is seeking to impose “sanctions” like those the SEC imposes in administrative proceedings. The 1946 Congress that enacted the APA declined to follow the trans-substantive summary judgment rule that had been recently adopted as part of the Federal Rules of Civil Procedure, and instead followed the alternative model of the many U.S. States that permitted summary judgment only in specifically enumerated categories of cases. The legislative history and contemporaneous interpretations confirm that the APA prohibits summary process for formal adjudications leading to “sanctions.”

Administrative summary judgment is also questionable on policy grounds. Proponents argue that administrative summary judgment promotes administrative efficiency, but have overlooked how the procedure may distort agency enforcement priorities, undermine Congressional control of administrative agencies, be subject to systematic abuse by agencies, and unfairly deprive some individuals of important procedural rights.

This paper provides an empirical study of SEC summary disposition from its promulgation in 1995 through 2019, examines the text and history of the APA to demonstrate the illegality of this procedure, and challenges the conventional policy justifications for the procedure.

Highly recommended.

Abdulla on the Bedford/Carter Exceptions to Vertical Stare Decisis in Canada

Adil Abdulla (University of Toronto, Faculty of Law, Students; Lenczner Slaght Royce Smith Griffin LLP) has posted The Circumstances of Change: Understanding the Bedford/Carter Exceptions to Vertical Stare Decisis (University of Toronto Faculty of Law Review, Vol. 78, No. 1, 2020) on SSRN.  Here is the abstract:

In 2013, the Supreme Court of Canada held that, in some cases, trial courts do not have to follow precedents from higher courts (the “Bedford/Carter exceptions”). However, lacking clear rules for when these exceptions apply, trial courts have been understandably reluctant to use this power. This article proposes that the Bedford/Carter exceptions should apply in three circumstances: where the legal test has changed, where assumptions necessary to the holding no longer apply, and where the precedent conflicts with non-binding law. It comes to this conclusion through two analytical paths. First, it identifies the theoretical justifications for vertical stare decisis and shows that they are weaker in these circumstances. Second, it shows that courts have in fact applied the exceptions in those circumstances.

Duncan on Requiring Unanimity for Judicial Invalidation of Legislation

Dwight G. Duncan (University of Massachusetts Dartmouth - University of Massachusetts School of Law) has posted A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws (33 BYU J. Pub. L. 1 (2019)) on SSRN.  Here is the abstract:

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott to Lochner to Roe v. Wade to Citizens United, and even the recent Second Amendment decisions of Heller and McDonald, these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so is the subject of this article. I leave for another occasion the legal and practical questions of how to implement such a unanimity requirement.

Ghotbi Moral Responsibility for the 2008 Financial Crisis

Kathryn E. Ghotbi (New York University School of Law) has posted 2008's Harmless Torturers and Group Agents: The Moral Mathematics and Responsibilities of Financial Crises on SSRN.  Here is the abstract:

After the 2008 Financial Crisis, there were widespread calls by politicians, policy-makers, and the general public to hold individuals accountable for the devastating harms that resulted. This yearning still remains alive and well in American culture despite the lack of criminal prosecutions or civil enforcement against individuals involved in 2008. By employing contemporary analytic philosophy, this paper argues, contrary to this commonly held belief, that it would be a moral mistake to hold individuals responsible for the Financial Crisis. Financial crises caused by amalgamation of systemic risk may be implemented by individuals, but they are undoubtedly programmed by corporations. Because of this, corporations and financial institutions are fit to be held morally responsible for 2008. As a result, they owe a moral duty to protect the right of all investors to reasonably rely on financial risks by monitoring through internal compliance programs how the actions taken by their individual employees contribute to systemic risks.

Fontana on the Role of Constitutional Law Professors

David Fontana (George Washington University Law School) has posted What Do Constitutional Law Professors Do? (Wisconsin Law Review, Vol. 2020, Page 317) on SSRN.  Here is the abstract:

This Essay — written for a symposium hosted by the Wisconsin Law Review on Andrew Coan’s splendid new book — examines the social space that non- clinical, tenure-track American constitutional law professors occupy, and whether that social space is a desirable one.

Constitutional law professors are relatively unique among faculty in the current American research university for the degree to which they speak to those inside and outside of the university. Constitutional law professors are socialized by and participate in the research community of the university but also the elite legal profession. They aspire to speak truth to power, but they are also part of the power that they seek to evaluate. It is good for a society to have scholarly insights brought to bear on important decisions by powerful people, and law professors are increasingly the ones doing that. It is also good to have a scholarly discipline generated by combining its own original insights with the insights of other disciplines. As the humanities and social sciences produce more technical scholarship, more removed from the comprehension and concerns of daily life, this engaged and interdisciplinary role for constitutional law professors becomes more important because it is more uncommon. However, being such a part of the system that one aspires to evaluate also encourages law professors to be more deferential and defensive of existing power structures.

Herz on Malattributed Comments in Agency Rulemaking

Michael Herz (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Malattributed Comments in Agency Rulemaking (Cardozo Law Review, Vol. 42, 2020) on SSRN.  Here is the abstract:

A specter is haunting notice-and-comment rulemaking – the specter of “fraudulent comments.” The stand-out example was the FCC’s net neutrality rulemaking in 2017. A record 22 million comments were submitted, but millions of those were submitted by computers (bots) using fictitious names or the names of real people, living and dead, who had no connection to the comment. The reaction was ferocious; many argued that the rulemaking should have been abandoned because it was irretrievably contaminated by fraud, identity theft, and other criminal activity.

This article calls for calm. The reaction was over-wrought and rests on a fundamental misconception of the nature of notice-and-comment rulemaking. There is nothing good about comments submitted under someone else’s name; we should not celebrate them; there is no silver lining; agencies should take steps to prevent or weed out such submissions to the extent they can do so without discouraging legitimate comments. But neither are they actually all that harmful, either to the agency or to the individuals whose names have been used. Moreover, despite the frequent and casual assertions of illegality, except in rare circumstances they just are not illegal. Among other things they are not, they are not “fraudulent.” That is a legal conclusion that does not fit. Hence the neologism “malattributed.”

The Article begins by describing the phenomenon and arguing that the horrified reaction of many observers results from a category mistake. Horror would be appropriate if rulemaking were a vote, but it is not. The article then systematically reviews the various harms caused by malattributed comments, which are real but modest. It then considers a range of possible statutes that may prohibit this activity. Were a federal prosecutor actually interested in pursuing malattributors, the most promising hook would be the false statements statute, 18 U.S.C . § 1001. But even that is an uphill battle. Nor does the Administrative Procedure Act require agencies to cleanse the docket of such submissions or abandon a rulemaking because it is “tainted” by them. A brief conclusion suggests modest measures agencies can and should take to discourage malattributed comments.

Recommended.

Hayden & Bodie on Codetermination and Corporate Governance

Grant M. Hayden (Southern Methodist University - Dedman School of Law) & Matthew T. Bodie (Saint Louis University School of Law) have posted Codetermination in Theory and Practice (Florida Law Review, Vol. 73, No. 2, 2021) on SSRN.  Here is the abstract:

A system of shared corporate governance between shareholders and workers, codetermination has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and an example of corporate deviance. However, over the last twenty years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders. This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather than experiencing the failures predicted by our law-and-economics framework of shareholder primacy, codetermination has fared better than alternative systems, particularly with respect to the ravages of the Global Financial Crisis. At a time when corporate leaders, politicians, and academics are rethinking the shareholder primacy model, the Article presents an updated perspective on codetermination and invites U.S. scholars to reexamine their prior assumptions.

French on Forum Shopping & COVID-19 Business Interruption Insurance

Christopher C. French (The Pennsylvania State University (University Park) – Penn State Law) has posted Forum Shopping COVID-19 Business Interruption Insurance Claims (2020 U. Ill. L. Rev. Online __ (2020)) on SSRN.  Here is the abstract:

Insurance disputes are typically governed by state law, and state insurance laws vary considerably, with some states being favorable to policyholders and others being unfavorable. With forum shopping, a plaintiff often has many choices regarding where it can bring a lawsuit, including multiple states in which to bring the case and whether to bring the case in federal or state court. Of the over 900 COVID-19 business interruption insurance lawsuits filed thus far, more than 600 of them have been filed in federal court, with more than 100 filed as class actions. Many of them were also filed in states with insurance laws that are not favorable to policyholders.

Conventional wisdom provides that a plaintiff’s chances of winning are generally much higher in state court than in federal court and that historically federal class actions against insurers have been successful only approximately twenty-five percent of the time. So, why were so many of the COVID-19 business interruption insurance cases filed in federal court in unfavorable states and as class actions when the historical chances of winning are so low in such forums, particularly as class actions?

This Essay provides some possible answers to that question. In doing so, it explores forum shopping considerations in general, the conventional wisdom regarding litigating in federal versus state court, and the empirical data regarding the odds of winning in state versus federal court.