Legal Theory Blog

Legal Theory Lexicon: Conduct Rules and Decision Rules

Introduction

Substantive rules of law (such as the rules of torts, contract, and property) are usually assumed to be addressed to two audiences. As conduct rules, the substantive law is addressed to everyone (citizens, officials, and noncitizens). Thus, property law tells us who has dominion over which resources. If this land is mine, then the law communicates the message that I can use my land and exclude others from its use. These very same legal rules also serve as decision rules, they tell courts how to resolve disputes. We usually assume that the content of the conduct rules are the decision rules are identical, but this need not be the case.

Acoustic Separation

Professor Meir Dan-Cohen of U.C. Berkeley proposed a very famous thought experiment. He asked us to imagine acoustic separation between ordinary citizens, who would only "hear" the conduct rules, and officials (such as judges), to whom the decision rules would be addressed. You might imagine that courtrooms are isolated by a giant "cone of silence".

Dan-Cohen's thought experiment leads naturally to the following question: should decision rules and conduct rules have the same content or should they differ?  And if they differ, how could the law prevent acoustic leakage, e.g. prevent ordinary citizens from learning about the content of the decision rules?

Example?

Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content.

The Technology of Acoustic Separation

But how can we excuse ignorance of the law without altering the conduct rule?  One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the prohibited intentional conduct is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law.

Normative Implications

Even if it is possible to create acoustic separation between conduct rules and decision rules, doing so may be problematic on normative grounds.  For utilitarians or welfarists, the only question is whether acoustic separation will produce good consequences, but for fairness-based (or deontological) approaches, the deception involved in acoustic separation seems problematic.  This intuition is reflected in a variety of legal doctrines (such as the "void for vagueness" doctrine in constitutional law) and in the notion of "publicity" that is usually included in formulations of the ideal of the rule of law.

Using the Distinction 

The distinction between conduct rules and decision rules may not arise frequently--because the conditions for acoustic separation may be rare and because the law usually aims at congruence between the two sorts of rules, but in almost every legal context the distinction could become relevant.  It is almost always worth asking, "Is there any discrepancy between the conduct rules and decision rules in this area of law?"  And if there is such a discrepancy, then further questions are in order: "Is this accidental or does it serve some function?" and "Is this instance of acoustic separation normatively justified?"

Related Lexicon Entries

• Legal Theory Lexicon 026: Rules, Standards, and Principles

References

• Meir Dan-Cohen Decision Rules and Conduct rules: On Acoustic Separation in Criminal Law, 97 Harvard Law Review 625 (1984) (PDF here, also available to subscribers on Jstor and anthologized in Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (Cambridge University Press 2002).
• Criminal Law Conversations (Paul H. Robinson, Stephen Garvey, & Kimberley Kessler Ferzan eds., Oxford University Press 2009).  This volume contains several essays that comment on Dan-Cohen's idea.
• Paul H. Robinson, Rules of Conduct and Principles of Adjudication, 57 U. Chi. L. Rev. 729 (1990).

(Last modified on March 26, 2023.)

Legal Theory Bookworm: "Democracy, Religion, and Commerce," edited by Flake & Oman

The Legal Theory Bookworm recommends Democracy, Religion, and Commerce, edited by Kathleen Flake & Nathan B. Oman.  Here is a description:

This collection considers the relationship between religion, state, and market. In so doing, it also illustrates that the market is a powerful site for the cultural work of secularizing religious conflict. Though expressed as a simile, with religious freedom functioning like market freedom, “free market religion” has achieved the status of general knowledge about the nature of religion as either good or bad. It legislates good religion as that which operates according to free market principles: it is private, with no formal relationship to government; and personal: a matter of belief and conscience. As naturalized elements of historically contingent and discursively maintained beliefs about religion, these criteria have ethical and regulatory force. Thus, in culture and law, the effect of the metaphor has become instrumental, not merely descriptive. This volume seeks to productively complicate and invite further analysis of this easy conflation of democracy, religion, and the market. It invites scholars from a variety of disciplines to consider more intentionally the extent to which markets are implicated and illuminate the place of religion in public life. The book will be a valuable resource for researchers and academics working in the areas of law and religion, ethics, and economics.

Download of the Week: "Intent to Create Legal Relations and the Nature of Contractual Consent" by Oman

The Download of the Week is Intent to Create Legal Relations and the Nature of Contractual Consent by Nathan B. Oman.  Here is the abstract:

The nature of contractual consent is less normatively important to contract law than many leading contract law theories assume. The common law in both England and America recognizes that intent to create legal relations is an important issue in contract formation. It is tempting to see in these doctrines a search for a particular kind of consent that can serve as a normative touchstone for justifying contractual enforcement. To put the point more precisely, we might think that for consensual agreement to justify contractual liability the consent of the parties must necessarily have certain legitimacy-creating characteristics. The intent to create legal relations seems like a promising potential candidate for such a legitimacy-creating characteristic. Several leading contract law theorists have taken this position. However, if one examines cases where the intent of the parties’ with regard to their legal relationship is doctrinally relevant, courts seem to ask whether enforcement is commercially reasonable in light of the parties’ expressed intentions rather than searching for a particular kind of consent. Contracts will be enforced in the face of what can best be described as heterogeneous intentions with regard to legal relations. Courts seem most comfortable enforcing contracts when doing so will grease the wheels of beneficial commerce. Perhaps unsurprisingly, they honor parties’ intent to create legal relations (or its absence) in these situations. They are far more hesitant, however, to defer to parties’ legal intentions when doing so involves questionable commercial dealing or bargaining in contexts such as the family where the norms and institutions of the market cannot be presumed to channel enlightened self-interest in normatively attractive ways. In short, a careful look at intent to create legal relations suggests that commerce rather than a single, normatively consistent vision of consent drives contract law.

Highly recommended.

South & Mahari on Cryptocurrencies and Judicial Enforcement

Tobin South (Massachusetts Institute of Technology (MIT) - MIT Media Laboratory) & Robert Mahari (Harvard Law School; Massachusetts Institute of Technology (MIT) - Human Dynamics Group) have posted Justice in a Vaccum? (Computational Legal Futures, Network Law Review. (2023)) on SSRN.  Here is the abstract:

Legal obligations are worthless without a judicial system to enforce them. The world of cryptocurrencies faces a similar issue today. Although cryptography can be used to create immutable records of legal obligations, it cannot always enforce them. Some transactions, especially those involving offline world assets, require an additional mechanism to enforce obligations and adjudicate disputes. In this piece, we will begin to explore what it would take to make these visions a reality: how can legal obligations be enforced independently of contemporary legal systems to provide justice in a vacuum?

We explore the feasibility of a truly decentralized form of dispute resolution that relies entirely on network effects to enforce judgments. In doing so, we surface a number of onerous requirements — like the need for identity and reputation mechanisms — and consider several challenges to decentralized dispute resolution. Though a fully decentralized dispute resolution system does not currently appear feasible, elements of this network-based justice system may be applied today, especially in contexts where the rule of law is weak.

Bajwa & Miller on Liberalism and Complicity-Based Conscience Claims in Muslim-American Amicus Briefs

Kamran Bajwa (University of Chicago Law School) & Samuel E. Miller (University of Iowa - College of Law; University of Chicago) have posted Liberalism Versus Liberalism: An Analysis of Muslim-American Amicus Curiae Arguments Concerning Complicity-Based Conscience Claims (Journal of Law and Religion, Vol. 38, No. 2, 2023 (Forthcoming)) on SSRN.  Here is the abstract:

Nejaime and Siegel (2015) identified complicity-based conscience (“CBC”) claims as a sub-category of religious liberty claims in which objections to generally applicable laws result in harms to third parties. Here, we observe that Muslim-Americans have filed or joined amicus curiae briefs in support of litigants on both sides of the recent CBC disputes of Masterpiece Cakeshop v. Colorado (2018), Bostock v. Clayton County (2020), and Fulton v. City of Philadelphia (2021).

We show that the opposing arguments advanced by Muslim-Americans in these amicus curiae briefs presuppose two different conceptions of liberalism: liberalism as the pursuit of broad religious, cultural, and value pluralism (modus vivendi), or liberalism as the pursuit of cohesion, assimilation, and fraternité among diverse constituencies (vivre ensemble). On the basis of a modus vivendi vision of liberalism, Muslim-Americans argue that Islam and other minority religions entail specific beliefs, doctrines, and moral injunctions regarding, inter alia, rules of personal conduct in society that deserve distinctive legal protections. Under a conception of liberalism as vivre ensemble, Muslim-Americans prioritize the uniform enforcement of civil rights laws over religious-based objections thereto and, in doing so, seek an “overlapping consensus” between their beliefs and prevailing conceptions of expansive civil liberties.

Interesting and recommended.

Linarelli on AI and Contract Formation

John Linarelli (Touro University Jacob D. Fuchsberg Law Center) has posted Artificial Intelligence and Contract Formation: Back to Contract as Bargain? (Stacy-Ann Elvy & Nancy Kim, Emerging Issues at the Intersection of Commercial Law and Technology (Cambridge University Press Forthcoming)) on SSRN.  Here is the abstract:

Some say AI is advancing quickly. ChatGPT, Bard, Bing’s AI, LaMDA, and other recent advances are remarkable, but they are talkers not doers. Advances toward some kind of robust agency for AI is, however, coming. Humans and their law must prepare for it. This chapter addresses this preparation from the standpoint of contract law and contract practices. An AI agent that can participate as a contracting agent, in a philosophical or psychological sense, with humans in the formation of a contract will have to have the following properties: (1) AI will need the cognitive functions to act with intention and that intention must cause the AI to take a particular action; (2) humans must be in a position to recognize and respect that intention; (3) AI must have the capacity to engage with humans (and other AI) in shared intentions, meaning the cognitive capacity to share a goal the parties can plan for and execute; (4) AI will have to have the capacity to recognize and respect the practical authority of law and legal obligation; (5) it will have to have the capacity to recognize and respect practical authority in a claim accountability sense, in accepting that a contract forms a binding commitment to others. In other words, AI will have to be able engage in shared inten-tionality but also understand and accept it cognitively as a binding commitment recognized by the law; and (6) AI will have to possess the ability to participate in these actions with humans or in some hybrid form with humans.

Recommended.  For discussion of these issues from some years back, see Legal Personhood for Artificial Intelligences.

Oman on the Nature of Contractual Consent

Nathan B. Oman (William & Mary Law School) has posted Intent to Create Legal Relations and the Nature of Contractual Consent (Research Handbook of the Philosophy of Contract Law (Mindy Chen & Prince Saprai eds. Forthcoming) on SSRN.  Here is the abstract:

The nature of contractual consent is less normatively important to contract law than many leading contract law theories assume. The common law in both England and America recognizes that intent to create legal relations is an important issue in contract formation. It is tempting to see in these doctrines a search for a particular kind of consent that can serve as a normative touchstone for justifying contractual enforcement. To put the point more precisely, we might think that for consensual agreement to justify contractual liability the consent of the parties must necessarily have certain legitimacy-creating characteristics. The intent to create legal relations seems like a promising potential candidate for such a legitimacy-creating characteristic. Several leading contract law theorists have taken this position. However, if one examines cases where the intent of the parties’ with regard to their legal relationship is doctrinally relevant, courts seem to ask whether enforcement is commercially reasonable in light of the parties’ expressed intentions rather than searching for a particular kind of consent. Contracts will be enforced in the face of what can best be described as heterogeneous intentions with regard to legal relations. Courts seem most comfortable enforcing contracts when doing so will grease the wheels of beneficial commerce. Perhaps unsurprisingly, they honor parties’ intent to create legal relations (or its absence) in these situations. They are far more hesitant, however, to defer to parties’ legal intentions when doing so involves questionable commercial dealing or bargaining in contexts such as the family where the norms and institutions of the market cannot be presumed to channel enlightened self-interest in normatively attractive ways. In short, a careful look at intent to create legal relations suggests that commerce rather than a single, normatively consistent vision of consent drives contract law.

Highly recommended.

Substantially Revised Version of "Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition" by Barnett & Solum

Lawrence B. Solum (University of Virginia School of Law) & Randy E. Barnett (Georgetown University Law Center) have posted a revised version of Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition on SSRN.  Here is the new abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

Comments welcome, as always.

Laycock, Berg, Esbeck, & Wilson on the Respect for Marriage Act

Douglas Laycock (University of Virginia School of Law), Thomas C. Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law), Carl H. Esbeck (University of Missouri School of Law), & Robin Fretwell Wilson (University of Illinois College of Law) have posted The Respect for Marriage Act: Living Together Despite Our Deepest Differences (University of Illinois Law Review, Forthcoming) on SSRN.  Here is the abstract:

The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage should the Supreme Court overrule Obergefell v. Hodges. And it will protect religious liberty for traditional beliefs about marriage. The Act has been attacked by hardliners on both sides. We analyze the Act section by section, showing how it works, why it is constitutional, and why it does not do the many things its critics have accused it of.

The Act requires every state to recognize same-sex marriages performed in other states. If Obergefell were overruled, Congress would have no authority to require each state to license same-sex marriages within its borders. By invoking the Full Faith and Credit Clause, Congress did all that it could for same-sex couples.

The Act protects religious liberty with congressional findings, rules of construction, modest new substantive protections, and a limitation on the Act’s reach: only persons acting under color of state law are required to recognize sister-state marriages. The Act specifically addresses the fear that conservative religious entities could lose their federal tax-exempt status.

The Act is a model for pluralistic approaches that protect both sides in the culture wars. State legislatures have passed many gay-rights bills with protections for religious liberty. Neither side has been able to pass gay-rights bills without such protections, or absolute religious liberty bills with no allowance for gay and lesbian rights. The Respect for Marriage Act is an encouraging return to the practice of protecting liberty for all Americans—both the LGBTQ community and the conservative religious community.

Highly recommended.

Ferstman & Sharpe on Iranian Arbitrary Detention of Foreign Nationals

Carla Ferstman (University of Essex - School of Law) & Marina Sharpe (Royal Military College Saint-Jean) have posted Iran’s Arbitrary Detention of Foreign and Dual Nationals as Hostage-Taking and Crimes Against Humanity ((2022) 20 Journal of International Criminal Justice 403) on SSRN.  Here is the abstract:

This article examines, within the frame of international criminal law, Iran’s arbi- trary detention of foreign and dual nationals for leverage over the detainee’s (other) country of nationality. It provides an overview of Iran’s pattern of conduct since 2010, involving at least 66 victims, and analyses this in terms of hostage-taking and crimes against humanity. First, we argue that Iran’s pattern of conduct con- stitutes hostage-taking within the meaning of the International Convention Against the Taking of Hostages. This gives rise to Iran’s international responsibility for the breaches concerned and has important implications for victims’ and their loved ones’ perceptions of their experiences. Second, we assess the context elements of the def- inition of crimes against humanity as well as the gravity threshold and the com- patibility of the pattern of conduct with the requisite elements of the relevant underlying offences: imprisonment or other severe deprivation of physical liberty, torture, and persecution. We conclude that the actions of certain Iranian officials reasonably satisfy the requirements for crimes against humanity. This is legally important for the application of crimes against humanity jurisprudence to this new context. It also opens avenues of accountability, given the aut dedere aut judicare provisions for crimes against humanity enacted by many states and the growth of sanctions legislation in several states. It should be difficult for responsible officials to travel outside Iran for fear of arrest and sanction.

Mallett on Judicial Review of Administrative Action Based on AI

Cade Mallett (New York University (NYU), School of Law) has posted Judicial Review of Administrative Action Based on AI on SSRN.  Here is the abstract:

When reviewing agency action for arbitrariness, courts must initially determine how “hard” a look to take at the substance of agency action. The increasing use of AI as a basis for agency action threatens to complicate this threshold analysis significantly, as agencies and courts both are commonly lacking in significant expertise creating and reviewing AI. While it is common for lower courts to rotely determine they are entitled to “hard look” review of agency action, the Court’s precedent in this area is decidedly more deferential, requiring a case-by-case assessment of the extent to which an agency leverages its substantive expertise in taking the action. Leveraging both the Court’s expertise-based analysis and a review of the policy considerations underlying the decision to grant deference, this paper contributes a framework for courts to use in choosing the level of deference to grant agency action based on AI.

An interesting student paper.

Kunkel on a Marxian Account of AI and the Proletarianization of the Legal Profession

Rebecca Kunkel (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Artificial Intelligence, Automation, and Proletarianization of the Legal Profession (Creighton Law Review, Vol. 56, 2022) on SSRN.  Here is the abstract:

Recent advances in computer programming, broadly categorized as "artificial intelligence," ("Al") have renewed debates over machines as viable replacements for human lawyers. Some prominent lawyers and legal scholars now adhere to a vision of the future heavily seasoned with Silicon Valley-style techno-utopianism: the legal profession may endure but only in a form in which it would be almost unrecognizable today, while legal innovators will need to immerse themselves in the possibilities opened up by artificial intelligence in order to survive. For others, the view of artificial intelligence and its potential application to law is more limited, as they argue for the impossibility of automating many essential aspects of legal service. These views share key assumptions about the nature of Al technology: that technological development follows its own course and that the widespread adoption of technologies is primarily determined by objective measures of efficacy. This essay offers an alternate Marxian account of legal Al which places it in the larger history of automation and proletarianization.

Robertson on Tort Liability for Semi-Autonomous Vehicle Crashes

Cassandra Burke Robertson (Case Western Reserve University School of Law) has posted Litigating Partial Autonomy (109 Iowa Law Review, Forthcoming 2023) on SSRN.  Here is the abstract:

Who is responsible when a semi-autonomous vehicle crashes? Automobile manufacturers claim that because Advanced Driver Assistance Systems (ADAS) require constant human oversight even when autonomous features are active, the driver is always fully responsible when supervised autonomy fails. This Article argues that the automakers’ position is likely wrong both descriptively and normatively. On the descriptive side, current products liability law offers a pathway toward shared legal responsibility. Automakers, after all, have engaged in numerous marketing efforts to gain public trust in automation features. When drivers’ trust turns out to be misplaced, drivers are not always able to react in a timely fashion to re-take control of the car. In such cases, the automaker is likely to face primary liability, perhaps with a reduction for the driver’s comparative fault. On the normative side, this Article argues that the nature of modern semi-autonomous systems requires the human and machine to engage in a collaborative driving endeavor. The human driver should not bear full liability for the harm arising from this shared responsibility. As lawsuits involving partial autonomy increase, the legal system will face growing challenges in incentivizing safe product development, allocating liability in line with fair principles, and leaving room for a nascent technology to improve in ways that, over time, will add substantial safety protections. The Article develops a framework for considering how those policy goals can play a role in litigation involving autonomous features. It offers three key recommendations, including (1) that courts consider collaborative driving as a system when allocating liability; (2) that the legal system recognize and encourage regular software updates for vehicles, and (3) that customers pursue fraud and warranty claims when manufacturers overstate their autonomous capabilities. Claims for economic damages can encourage manufacturers to internalize the cost of product defects before, rather than after, their customers suffer serious physical injury.

Highly recommended.

Cohen on the Discipline of Rudy Giuliani and 2020 Presidential Election Fraud

George M. Cohen (University of Virginia School of Law) has posted The Discipline of Rudy Giuliani and the Real Fraud of the 2020 Election on SSRN.  Here is the abstract:

In Matter of Giuliani, the New York Appellate Division held that Rudy Giuliani’s knowingly false statements of fact during the period after the 2020 presidential election violated the Rules of Professional Conduct and warranted interim suspension of his license. This paper argues that the court reached the right result but did not use the best rule and the best rationale. Instead of focusing on Giuliani’s conduct as a series of false statements in support of a “narrative,” the better approach would have been to call it what it was: fraud. Although the fraud was not “transactional,” fraud, Giuliani’s false statements to state legislatures to convince them to not certify or undo the certification of presidential electors for Joe Biden was a kind of “procedural” fraud akin to fraud on a court. All of Giuliani’s false statements can be viewed as supporting that scheme. Focusing on the disciplinary rule prohibiting lawyers from engaging in conduct involving fraud would have avoided doctrinal and constitutional difficulties and better captured the real nature of the harm caused by Giuliani’s conduct. The voting fraud that Giuliani claimed others engaged in to steal the 2020 presidential election for President Biden did not happen. The fraud on state legislatures that Giuliani himself engaged in to steal the election for President Trump did happen. It is time that we recognize the real fraud of the 2020 election.

Highly recommended.

Lobel on "Against Progress" by Silbey

Orly Lobel (University of San Diego School of Law) has posted Progress Is Less Intellectual Property (102 B.U. L. REV. ONLINE 82 (2022)) on SSRN.  Here is the abstract:

Jessica Silbey's Against Progress: Intellectual Property and Fundamental Values in the Internet Age is a triumph. Building on her groundbreaking research and her important first book, The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property, Against Progress is a book that goes straight to the heart of twenty-first-century innovation policy. With her signature sociolegal and linguistic depths, Silbey uncovers how the path of intellectual property law has been predictably patterned to favor power and wealth accumulation. Silbey demonstrates how the mandate of promoting "progress of science and the useful arts"-the constitutional purpose of intellectual property-has received a narrow reading that emphasizes more ownership, more protections, and more resource concentration. The irony, as Silbey so powerfully presents it, is that the more technology and society bring ease to copying, the more intellectual property law has pushed back and expanded its scope.

Recommended.  Link to the book in the abstract.

Citron on Online Harassment

Danielle Keats Citron (University of Virginia School of Law) has posted Combating Online Harassment (Democracy Journal, Issue no. 68 (2023)) on SSRN.  Here is the abstract:

Cyber harassment jeopardizes lives, livelihoods, and democratic discourse. To the extent that the cyber-abuse playbook has changed in the 15 years that I have been studying the topic, it has taken a turn for the worse. Technological advances have made it cheaper and easier to wreak havoc. We need a whole of society approach to combat online abuse. Laws and norms are necessary to protect democratic discourse and equal opportunity from online assaults. In this regard, we have seen important yet modest progress. I have been working with the White House’s Task Force to Address Online Harassment and Abuse, which is co-chaired by the Gender Policy Council and the National Security Council. The task force is working on drafting recommendations for state governments, technology platforms, schools, and other public and private entities on how to combat cyber stalking and other online abuses. We need everyone to join the effort to combat cyber harassment and other online abuse.

Highly recommended.

Saunders on Constitution Making as a Lawful Form of International Action

Anna Saunders (UCL Laws) has posted Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance (American Journal of International Law 2023) on SSRN.  Here is the abstract:

Over the last three decades, international lawyers and institutions have come to understand constitution-making as an accepted technique of international law and a means of delivering peace and security. In defending this technique from its critics, scholars have drawn on a particular tradition of constitution-making developed in the post-war period and in respect of the Allied occupations of Germany and Japan. That tradition understands constitutionalism as a lawful form of international action, allowing for temporary forms of international rule, and juridically distinct from material concerns. I explore the building of this tradition through the work of three legal scholars: Ernst Fraenkel, Quincy Wright, and Carl Friedrich. I argue that reimagining constitutionalism for the coming decades requires rethinking this separation between the juridical and the material, as well as asking what constitutionalism demands of the laws governing the global economy.

Redding on Queer and Religious Alliances in India

Jeffrey A. Redding (University of Melbourne - Law School) has posted Queer and Religious Alliances in India and Beyond (Law School Policy Review (The Queer Column) (2023)) on SSRN.  Here is the abstract:

A number of recent political and legal controversies in India have highlighted conflicts between religious and queer interests. However, this contribution explores not quotidian conflict but queer–religious cooperation. In a recent volume co-edited by Nausica Palazzo and myself, Queer and Religious Alliances in Family Law Politics and Beyond (New York: Anthem Press, 2022), the prospects of queer–religious alliance (or friendship even) was explored by authors writing from diverse jurisdictions. While broad, the geographical focus of this volume obviously left the political and social possibilities of hugely important parts of the world underexplored for the time being. Yet self-consciously queer movements and agendas continue to increase in number and scope globally, and the hope was that other scholars and commentators would view this 2022 volume as an invitation to seriously consider the prospect of queer–religious alliances and friendships in Asia, Africa, and South America (amongst other places). In India, there are a number of queer–religious alliances oriented around substantive legal issues that can be contemplated. Here I focus on one such issue, namely the ‘freedom to identify.' This value is hugely important for gender and religious minorities in India yet is currently undervalued by the formal Indian legal system.

Huberfeld on Health Law and Federalism

Nicole Huberfeld (Boston University - School of Public Health; Boston University School of Law) has posted High Stakes, Bad Odds: Health Laws and the Revived Federalism Revolution on SSRN.  Here is the abstract:

The Supreme Court’s most recent term produced a number of blockbuster decisions, nearly hiding a federalism agenda that surfaced in health law, reproductive rights, administrative law, and other domains, weaving through cases where federalism was not obviously at issue, and appearing in “shadow docket” as well as regular decisions. Health laws have been front and center at the Court many times before now, and health care has been a vehicle for constitutional change in the past, but the New Roberts Court is raising the stakes for older health laws, most of which rely on states to achieve national goals. This article shows that the Court has increased formal interpretive methods that limit governmental power, like clear statement rules and the major questions doctrine, which are likely to have deregulatory impact across public laws. I claim a pattern is developing in which the New Roberts Court is centering a formal, separate-spheres vision of federalism that favors states’ rights, regardless of states’ capacity to wield that power or evidence that they do not.

Law is a determinant of health, controlling access to individual medical care and public health. For most social programs, Congress relies on federalism, which divides power and responsibility for implementing policies across federal, state, and local governments. However, laws enacted before the Court’s “Federalism Revolution” in the 1990s, like the Medicaid Act, have no federal alternative (or “fallback”) if states refuse to participate. State capacity to exercise power allocated by federalism has been assumed by judges and theorists alike. Yet, the pandemic crystalized that the governance capacity assumption is out of step with actual practice, and that states can effectively veto federal laws that have no fallback. Additionally, the inherent variability federalism invites impacts health inequitably, especially for racial and ethnic minorities and other vulnerable populations like rural communities.

This article spotlights the Court’s recent decisions using health law as a vehicle for constitutional change and probes theoretical assumptions about federalism’s values, illustrating the risks of these new patterns through two key examples, Medicaid expansion and the public health emergency for COVID-19. The article then identifies legal and ethical principles courts, administrative agencies, states, and policymakers could employ given that the Court is not likely to change course soon. Congress has authority to create new federal laws, or to amend laws, either of which would ironically increase federal power in states that will not partner. I also argue the traditional federalism values could and should be evaluated concretely using existing principles in law and bioethics as well as data from other disciplines. Many federal health laws are in danger of instability and dilution, but it may be possible to avert bad outcomes.

Christensen on Article III and Indian Tribes

Grant Christensen (Stetson University - College of Law) has posted Article III and Indian Tribes (Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:

Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenant, and unilaterally declared a plenary judicial power to review the exercise of an Indian tribe’s inherent sovereign authority. This exception is unmoored from all other Supreme Court precedent outside Indian law, and unjustifiably assumes the judicial power in direct contrast to the Court’s ordinarily thoughtful jurisprudence on Article III and deference to the separation of powers.

This article concludes that the Supreme Court was wrong in 1985 when it assumed a plenary judicial power over Indian affairs. The consequences are profound, and suggest a reconceptualization of the entire field of Indian law. Canon creating cases like Oliphant, Montana, and Cabazon should never have been decided because the exercise of a tribe’s inherent authority does not create a federal question conferring subject matter jurisdiction on the federal courts. The inherent power of Indian tribes to criminally prosecute or civilly regulate non-Indians in Indian country should not subject them to the judicially imposed limits set by the Supreme Court, because the Court lacks subject matter jurisdiction to decide those cases. Until a treaty or statute creates an affirmative basis for federal court review, an Indian tribe’s inherent powers are subject to the checks and balances imposed by tribal government and no others.

Very interesting, highly recommended.

Miller & Blocher on Bruen and Outlier Status

Darrell A. H. Miller (Duke University School of Law) & Joseph Blocher (Duke University School of Law) have posted Manufacturing Outliers (Supreme Court Review, Forthcoming) on SSRN.  Here is the abstract:

In New York State Rifle and Pistol Association, Inc. v. Bruen, the Court struck down New York’s discretionary concealed carry permitting law, describing it as a contemporary and historical outlier. Bruen uses the term “outlier” as a description of fact and a justification for action. But what does the Court mean by this term? After all, there was nothing atypical about New York’s licensing law even thirty years ago, when most states either had may-issue permitting or prohibited concealed carry altogether. This article analyzes Bruen and critiques its use of outlier reasoning as failing to adhere to two principles that should guide any argument from outliers—transparency and rigor. Bruen is not transparent about the assumptions that go into constructing the baselines against which purported outliers will be measured. Neither is Bruen rigorous about the manner in which it characterizes, groups, and verifies the historical facts that it does assemble. By dismissing as outliers so much of the historical evidence offered to support New York’s law, and then regarding the remainder as a self-evident, pre-existing, and neutral baseline, the Court confuses an exercise in discretion for a process of discovery.

Highly recommended!

Kosseff on Citron on Section 230 and Congressional Intent

Jeff Kosseff (United States Naval Academy, Cyber Science Department) has posted What Was the Purpose of Section 230? That’s a Tough Question, a Response to Danielle Citron's How to Fix Section 230 (Boston University Law Review, Forthcoming) on SSRN.  Here is the abstract:

What was Congress’s intent in passing Section 230? It sounds like a straightforward question, but it is anything but. Congress passed Section 230 as a small part of the Telecommunications Act of 1996, the first overhaul of U.S. telecommunications laws in six decades. Section 230 received little attention in Congress or the media, so the legislative history is limited. Compounding the challenge is that Section 230’s text evolved in subtle but consequential ways between its introduction and passage, making it difficult to divine a single intent of "Congress."

Sultany on Revolution

Nimer Sultany (University of London, School of Oriental & African Studies - School of Law) has posted 'Revolution' (in The Cambridge Handbook of Constitutional Theory (Richard Bellamy and Jeff King – eds., Cambridge University Press) Forthcoming) on SSRN.  Here is the abstract:

This chapter argues that an adequate assessment of revolutions (and the role of law in revolutions) is often stymied by historical exclusions and theoretical myopia. Historical exclusions centralise certain experiences and present sanitized and one-sided narratives of the revolutionary experiences they centralise, especially with respect to violence, slavery, and colonialism. On the basis of such ideological uses of history, theoretical accounts paper over these social and political realities in order to legitimate particular revolutionary constitutions and to elevate them to the status of a paradigm or ideal type. This paradigm serves as the yardstick by which other experiences are assessed. The main feature of this paradigm is that it postulates a distinction between political and social revolutions. It presents the American Revolution of 1776 as an exemplar for the political revolution that concerns itself with the establishment of government under law. In contrast, the French Revolution of 1789 is presented as an exemplar for the social revolution that also seeks to tackle social injustice.

The deficiency of this paradigm construction is not merely methodological, but also substantive and normative. It reduces the plurality of the revolutionary phenomena despite the conceptual contestability of the revolution, whether in respect to its applicability to particular realities or the emphasis on continuity with, or rupture from, the extant order. It ignores the revolution’s dialectical nature by separating its assessment from the counter-revolution and thus exaggerates the role of violence in revolutions it disfavours, whereas it obscures the role of violence, slavery, and colonialism in the revolutions it favours. Finally, it presents a certain type of revolutionary constitutions (that are “political” not “social”) as ones that legitimate the polity despite the contestability of the revolutions that generated them, and notwithstanding the incoherence and instability of these constitutions. Moreover, this paradigm elevates counter-majoritarian revolutionary constitutions to be a product of an exceptional act of founding that need not be repeated (or radically revised) despite the constitutional order’s deficiencies, instability, and injustices.

Highly recommended.

Arcioni on Constitutional Identity and the People in Australia

Elisa Arcioni (The University of Sydney Law School) has posted Competing Visions of ‘The People’ in Australia: First Nations and the State (Comparative Constitutional Studies, forthcoming) on SSRN.  Here is the abstract:

In 2020 the Australian High Court decided the case of Love v Commonwealth; Thoms v Commonwealth, a claim of constitutional belonging by two Aboriginal men. The Court was fractured in its reasoning and conclusion, a majority deciding that ‘Aboriginal Australians’ cannot be aliens. The case sits within a longer and ongoing story regarding the interaction between First Nations peoples and the Australian settler colonial state. The reasoning of the Love/Thoms case reveals two contrasting visions of the constitutional identity of ‘the people’ – one being a plural and diverse conception potentially capable of accommodating a distinct identity of First Nations peoples, the other being a unified conception dominated by formal equality and democratic participation.

A study of the Love/Thoms case in its context also speaks to broader questions of constitutional identity. First, that constitutional identity is constructed through the interaction of multiple actors. It is through an ongoing dialogic between constitutional actors that constitutional identity evolves over time. Second, that there is a relationship between the identity of ‘the people’ and of their Constitution. A study of the construction of the constitutional identity of ‘the people’ in this case reveals principal characteristics of the Australian state’s constitutionalism: going to institutional and substantive questions regarding the respective roles of the people and the Courts, equality and sovereignty.

Recommended.

Duan on Patentable Subject Matter and Alice Corp. Pty. Ltd. v. CLS Bank International

Charles Duan (Cornell University - Cornell Tech NYC; American University - Program on Information Justice and Intellectual Property; R Street Institute) has posted Examining Patent Eligibility (St. John's Law Review, Forthcoming) on SSRN.  Here is the abstract:

The doctrine of patentable subject matter eligibility under 35 U.S.C. § 101 has been the locus of major controversy, especially after the Supreme Court’s rearticulation of that doctrine in its 2014 decision Alice Corp. Pty. Ltd. v. CLS Bank International. Critics contend that the decision wrought dramatic changes that unduly constrained patent eligibility in the computer technology field, to the detriment of innovation, national competitiveness, and other interests. These claims have driven numerous calls for legislative reform and judicial action.

Yet Alice was not nearly the legal revolution it has been made out to be. The real change occurred in 2011, with a little-noticed Federal Circuit decision that revived an archaic and controversial doctrine on software patent eligibility. Empirical analysis of thousands of patent application and examination records suggests that this decision gave way to a flood of software and business method patents in the next three years. In context, then, Alice’s predominant effect was to undo this appellate decision. Even in fields seemingly the most impacted by Alice, this Article finds that the decision largely acted only to restore patent examination outcomes to their pre-2011 status.

If this account is even just part of the eligibility doctrine story, it reframes the ongoing debate about § 101. Most importantly, it throws into question prior empirical studies of Alice’s effects on patenting activity, insofar as those studies have used the apparently anomalous 2012–2014 period as a baseline for comparison. It undercuts predominant narratives about Alice that have driven calls for reform. And it recommends caution in legislative changes to the patent eligibility doctrine, in view of the potential for even minor rules to have outsized systemic effects.

Sassman on Law and the Power to Extract Fossil Fuels

Wyatt Sassman (University of Denver, Sturm College of Law) has posted The Legal Foundations of Extractive Power (71 UCLA Law Review __ (2024)) on SSRN.  Here is the abstract:

Over the last decade, the United States became the world’s top producer and leading exporter of oil & gas—a change with dramatic geopolitical and climate implications. At the root of this ascendency is a legal framework around oil & gas extraction in the United States that empowers extractive industry to dismantle community opposition, undermine local governance, and entrench extraction in communities over time. Exercising this power creates conditions of domination and dependency in communities where oil & gas extraction occurs. These conditions, in turn, build social and political support for continued extraction.

This Article charts out the legal foundations of this process to highlight law’s role in building the social and political conditions for continued fossil fuel extraction in the era of climate crisis. Drawing on the experiences of Colorado communities, this Article offers two contributions. First, I articulate how legal frameworks align to grant industry power over communities targeted for extraction and chart this power’s effects. Legal frameworks that facilitate oil & gas extraction allow industry to reorder systems of social and political authority in communities where extraction occurs. This process, and law’s role in legitimizing it, create conditions of industry domination and community dependence on extraction. These conditions, in turn, build political support for continued extraction—a dynamic that links climate policy with the legal structures of extraction in ways that legal scholarship and policy advocacy has largely overlooked. Second, I apply this understanding to explain why prominent oil & gas law reforms adopted in Colorado have failed. I use this example to reorient ongoing debates in oil & gas law towards reforms that target the legal supports of extractive industry’s social and political power.

Recommended.

Thomas on Material Adverse Effect Negotiations in Mergers and Acquisition Agreements

Naveen Thomas (New York University School of Law) has posted Mythical Adverse Effect (Emory Law Journal, Vol. 73, Forthcoming) on SSRN.  Here is the abstract:

The material adverse effect (“MAE”) definition in mergers and acquisitions agreements is one of the most intensely negotiated, litigated, and studied contract provisions ever. Practitioners and scholars alike encourage attorneys to bargain extensively over these definitions, which are among the most contentious terms in the world’s largest transactions.

Challenging this longstanding conventional wisdom, this Article shows that endemic efforts to customize MAE definitions’ language are in fact inefficient and counterproductive. Each of the purported benefits commonly attributed to extensive MAE negotiation — most notably, risk allocation and incentives to settle disputes through renegotiation — is illusory under Delaware law, which governs most major M&A agreements. Careful analysis of that state’s jurisprudence, including recent cases emerging from the COVID-19 pandemic, reveals that standardized definitions could provide all the same benefits without any of the substantial but overlooked costs of protracted negotiations.

Rather than fine-tune and fight over MAE definitions, lawyers could achieve their underlying goals more effectively by devoting their limited negotiating capital to other contract provisions. By refocusing the conversation from failure to success, this alternative approach should eventually facilitate contractual innovations that promote deal completion without the wasteful brinkmanship that pervades today’s transactions. In fact, analogous analysis extends beyond M&A to all types of business contracts. Finally, this Article’s findings regarding MAE definitions cast doubt on a basic tenet of orthodox contract theory, revealing that “front-end” transaction costs and “back-end” enforcement costs have a more intricate relationship than scholars have long supposed.

Very interesting.  Highly recommended.

Brudney & Leib on the Semantics of "Any"

James J. Brudney (Fordham University School of Law) & Ethan J. Leib (Fordham University School of Law) have posted 'Any' (Brigham Young University Law Review, Vol. 49, No. 2, 2023) on SSRN.  Here is the abstract:

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested meaning of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any,” and any effort to offer a unified approach – knowing precisely when its meaning is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained meaning of “some,” related to properties provided by contextual cues) – is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, and conducts in-depth pairwise comparisons of “any” cases to show the word’s flexible meaning in its multiple statutory guises. After evaluating evidence of the variability of “any,” we recommend a new approach, a form of an “any” canon. We encourage adjudicators to appreciate the complexity of “any” more systematically and to consult a full range of sources – as even full-throated textualists have authorized from time to time – offering the relevant larger context judges will need to ascertain the meaning of “any” in any given statutory scheme.

And from the article:

Moreover, while these textualists haven’t yet sought to use “ordinary meaning” textualism’s newer gadgets – such as experimental jurisprudence or corpus linguistics – we doubt those technologies are going to solve the problem of reining in the discretion judges operate with when they decide what “any” means. That is because the meaning of “any” in a particular statutory setting requires developing a rich story about legislative context. Put most directly, “any” adjusts the meaning of other words; it has a function rather than a definition. As a term, it is basically incomprehensible without further reference to the intentionality of its circumstances if not its drafters.

Highly recommended.

If I might offer a suggestion, the key question here is what context counts!  Not just "any" context!  Identification of the relevant context requires an account of the complex multistage process of legislative communication that draws on the philosophy of language and theoretical linguistics.  A sketch of such an account can be bound in Disaggregating Chevron.  One important idea is that the relevant context requires "common knowledge"--e.g., the context must be shared by the drafters, legislators, and the primary intended audience(s) of the statute.

Barthos on Non-Halal Food Information

Megawati Barthos (Borobudur University) has posted Responsibilities of Marketplace Providers in Providing Non-Halal Information as Consumer Protection (Law and Humanities Quarterly Reviews, Vol.2 No.1 (2023)) on SSRN.  Here is the abstract:

The Muslim community is prohibited from eating unclean food. Therefore, Indonesia as the majority of the population is Muslim, business actors are required to provide information about the raw materials of their products honestly and clearly so that it can be seen whether the product is halal or haram. Based on this, the formulation of the problem is what is the responsibility of the marketplace provider in providing non-halal information as a form of consumer protection. This research is studied in a normative juridical manner by using a statutory regulation approach and an analytical approach. The results of this study can find out that there is no regulation that requires business actors in the marketplace to include halal or non- halal information. Therefore, the government seeks legal protection for Muslim consumers so they are not fooled into buying food made from non-halal ingredients and/or food that has a mixture of non-halal ingredients by requiring business actors to provide correct, clear and accountable information, as well as include halal information and / or non-halal on the product.

Zhou on Governance of Microbiome Innovation

Yao Zhou (Morgridge Institute for Research) has posted Dynamic Governance of Microbiome Innovation on SSRN.  Here is the abstract:

Recent studies have shown that the microbiome has vast potential in the improvement of human health, agricultural productivity, and environmental sustainability. However, some microbiome therapeutics, such as fecal microbiota transplantation, raise real safety risks, as they sometimes contain uncharacterized viruses, bacteria, or protozoans that could be pathogenic, particularly for an already sick recipient. Commentators have presented innovations in the microbiome as intermediate healthcare technologies and argued that “a poorly calibrated regulatory structure” with side effects (such as ossifying the technologies at early stage of development) would be harmful to both public health and societal welfare. Nonetheless, existing regulatory frameworks do not accommodate these problems.

This article develops a dynamic model for governing microbiome innovation. It explains whether and how governance affects the quality of evidence generated in microbiome research, addresses regulatory challenges (such as lacking high-quality evidence for evaluating microbial products), and then proposes a form of dynamic governance through an integrated structure composed of major innovation players and other stakeholders (including but not limited to state authorities). The proposed governance model would deploy various mechanisms (such as public-private partnerships) to address new regulatory challenges in human therapeutics and other applications, thereby to help promote innovation and balance diverse interests.

Shah on Congress, the Courts, and Presidentialism

Bijal Shah (Boston College Law School) has posted The Spoils of Presidentialism for Congress and the Court (Yale Journal on Regulation, Notice & Comment (November 2022): https://www.yalejreg.com/nc/symposium-shane-democracy-chief-executive-13/) on SSRN.  Here is the abstract:

This brief piece suggests that, rather than witnesses to presidentialism that are gridlocked (Congress) or bound by certain forms of constitutional interpretation (the Court), the co-equal branches are participants in presidential aggrandizement perhaps because they benefit from it.

Liebman on Animal Plaintiffs

Matthew Liebman (University of San Francisco School of Law) has posted Animal Plaintiffs (Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:

From endangered Hawaiian songbirds to dolphins deafened by Navy sonar to a neglected horse named Justice, nonhuman animals are increasingly appearing as plaintiffs in lawsuits alleging their subjection to extinction, abuse, and other injustices. These cases are far more than mere novelties or publicity stunts; they raise important jurisprudential questions about what it means to be a plaintiff seeking relief. As we learn more about the richness and diversity of nonhuman life, our legal system will have to rethink its exclusions to meet the demands of interspecies justice.

Drawing on a diverse body of philosophical, jurisprudential, and scientific scholarship, this Article is the first to offer a comprehensive theory of plaintiffhood and apply it to nonhuman animals. It defends the plaintiffhood of animals by articulating the conceptual foundations of the figure of the plaintiff as an entity who complains about injustice, mourns death, and laments the mistreatment of herself and of others. Developments in the study of animal behavior and cognitive ethology have demonstrated these features in animals – including inequity aversion in monkeys, grief in elephants, and resistance to exploitation amongst many other species. As sentient and plaintive beings, animals are conceptually situated to serve as plaintiffs.

In addition to describing the conceptual contours of plaintiffhood, this Article identifies plaintiffhood’s jurisprudential requirements, then analyzes whether animals can meet these expectations. Plaintiffs must be legal persons, they must possess legal rights, they must have legal capacity (or a representative to defend their interests), and they must have standing to pursue their claims. Through an engagement with legal theory and case law, this Article argues that animals are legal persons with legal rights that can be enforced by representatives in cases where animals have suffered the kinds of injuries that confer standing. As such, it concludes that animals are entitled to be plaintiffs in lawsuits. To deny them the ability to enforce their rights in court is unjustly anthropocentric.

Interesting.  I found it very puzzling that the substance of Christopher Stone's Should Trees Have Standing? was discussed only once, very briefly, in a footnote.

Eidelson on the Etiquette of Equality

Benjamin Eidelson (Harvard Law School) has posted The Etiquette of Equality (51 Philosophy & Public Affairs (2023)) on SSRN.  Here is the abstract:

Many of the moral and political disputes that loom large today involve claims (1) in the register of respect and offense that are (2) linked to membership in a subordinated social group and (3) occasioned by symbolic or expressive items or acts. This essay seeks to clarify the nature, stakes, and characteristic challenges of these recurring, but often disorienting, conflicts. Drawing on a body of philosophical work elaborating the moral function of etiquette, I first argue that the claims at issue implicate a communicative apparatus of the same basic kind—a system that I term the “etiquette of equality.” That regime, I suggest, can serve a kindred function of facilitating the expression of morally appropriate attitudes. I also argue, however, that the etiquette of equality exhibits three problematic features that counsel ambivalence about its mounting significance: (1) the costly overdetermination of relevant signals; (2) a recursive tendency toward inflation in respect’s demands; and (3) a related set of incentives for testing, and then affirming, a group’s status through the assertion and symbolic remediation of dignitary harm. The upshot is a better understanding of the trade-offs and predicaments we face in a vital area of public life.

Highly recommended.

Curtis on Plurality Precedent

Channing J. Curtis (University of Mississippi, School of Law) has posted Clarifying Plurality Precedent: Historical Applications and Theories of Holdings on SSRN.  Here is the abstract:

Plurality decisions complicate the law of judicial precedent, leaving practitioners, courts, and academics alike at a loss for sound methodology to determine a binding rule of law. Scholars have thus commented that the Marks rule should be abandoned, while others seek to clarify its application. But in all this discussion and debate over plurality precedent and the Marks rule, a few points are overlooked. First, scholars readily dismiss affirmances by an evenly divided court in any analysis of plurality precedent. However, the reasons why affirmances by an evenly divided court are universally thought to be of no precedential authority, may lend a hand in deciding whether the Marks rule is wrong. Second, scholars often briefly mention the historical treatment of plurality decisions prior to Marks, but there has been virtually no analysis of the opinions dealing with the question of plurality opinions prior to the Supreme Court’s decision in Marks. State, federal and scholarly treatment of plurality decisions may lend a hand in assessing whether the Marks rule is grounded in sound legal theory. Finally, scholars often fail to ground any discussion of the Marks rule in the much deeper theoretical framework of holdings. This Article fills these gaps in the literature on plurality precedent.

Recommended.

Zaman on Freedom of Religion for Non-Muslims in Pakistan

Tasmiah Zaman (The Honourable Society of Lincoln’s Inn, United Kingdom) has posted Freedom of Religion for Non-Muslims in Islam: A Pakistani Affair (Law and Humanities Quarterly Reviews, Vol.5 No.2 (2022)) on SSRN.  Here is the abstract:

Pakistan has long claimed itself to be Shariah compliant, as particularly enshrined in the preamble of its Constitution to be an Islamist State. However, the religious minority, which makes up about 2-4% of the total population, especially the Hindus, have always been the target of persecution, denied religious freedom and even forced to convert to Islam. It is an irony that a state making such a constitutional claim of abiding by the Quran and Sunnah has turned a deaf ear to the freedom of religion and the rights that Islam guarantees to the non-Muslims of a Muslim state. The Quran and the teachings of the Prophet are not only clear on this subject but also vigilant in upholding the rights of non-Muslims. Although religious minorities in Pakistan comprise of not only Hindus but Christians, Sikhs, Ahmadiyyas and other ethnic minorities, this paper intends to focus solely on the plight of the Hindus in Pakistan, in light of the freedom of religion guaranteed by Islam. The study shall focus on the persecution of the Hindu minorities by way of forced conversions, refusal of the right of practicing their own religion and the recent halt of the construction of a temple in Islamabad. The research further engages in the historical perspective of freedom of religion in Pakistan and its relationship with the Islamic ideology it possesses, as opposed to the true teachings of the Quran and Sunnah which is evidential of the harmonious relationship among people of all religions, cultures and ideology.

Legal Theory Lexicon: Virtue Ethics

Introduction

The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.

What is virtue ethics?  Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjectival form of arete.

In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.

It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:

• Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
• Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
• Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.

Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) and the central idea of moral theory and deontology focuses on actions and moral rules, virtue ethics focuses on character and human excellence.

Modern Moral Philosophy

 Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.

The Virtues

What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.

The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.

The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science, and theory. The intellectual virtues are initially developed by teaching and mature through experience.

A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.

Virtue Ethics and Human Good

What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons.

And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"

Particularism and Phronesis

Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.

Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.

Virtue Politics and Virtue Jurisprudence

 What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.

What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.

In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.

One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:

What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.

Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.

Conclusion

 While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.

If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 031: Virtue Jurisprudence
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography

• Anscombe, G.E.M., Modern Moral Philosophy, 33 Philosophy 1-19 (1958), reprinted in G.E. M. Anscome, Ethics, Religion and Politics: Collected Philosophical Papers (1991).
• Crisp, Roger (ed.), How Should One Live?: Essays on the Virtues (Oxford: Clarendon Press 1996).
• Crisp, Roger and Michael Slote (eds.), Virtue Ethics (Oxford Readings in Philosophy) (Oxford: Oxford University Press 1997).
• Foot, Philippa, Virtues and Vices (Oxford: Blackwell 1978).
• Paula Gottleib, The Virtue of Aristotle's Ethics (Cambridge University Press 2009).
• Hursthouse, Rosalind, On Virtue Ethics (Oxford: Oxford University Press 1999). The single best one-volume statement of virtue ethics.
• Solum, Lawrence B., Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003).
• Solum, Lawrence B., Natural Justice, 51 American Journal of Jurisprudence 65-105 (2006).
• Statman, D. (ed.), Virtue Ethics: A Critical Reader (Edinburgh: Edinburgh University Press 1997).

Links to Online Resources

• Virtue Ethics in the Stanford Encyclopedia of Philosophy by Rosalind Hursthouse. I highly recommend this as a starting point for further reading on virtue ethics.
• Internet Encyclopedia of Philosophy Entry on Virtue Theory
• Wikipedia Entry on Virtue Ethics
• Wikipedia Entry on Virtue Jurisprudence

(This entry was last revised on March 19, 2023.)

Legal Theory Bookworm: "Constitutional Public Reason" by Sadurski

The Legal Theory Bookworm recommends Constitutional Public Reason by Wojciech Sadurski.  Here is a description:

Public reason, which urges that only laws based on principles reasonably agreeable to all those bound by them are legitimate, has rarely been applied to constitutional law, and never in a comparative way. This book aspires to fill that gap, by studying the use of public reason in different constitutional systems. In doing so, it studies public reason both as a normative idea - as a principle postulated for democratic constitutionalism, and as a descriptive account - as helping to understand many important doctrines in constitutional adjudication of some leading constitutional courts around the world, and also in the supranational sphere.

Constitutional Public Reason questions the performance of leading 'exemplars of public reasons', including the top courts of the United States, India, Canada, Australia, Germany, and South Africa, as well as the European Court of Human Rights. It also attempts to show how this performance can be improved in fields such as freedom of expression, non-establishment of religion, and anti-discrimination law. Ultimately, it finds that the best resonance between the ideal of public reason and constitutional interpretation is found in doctrines that locate the illegitimacy of laws in the wrongful motives (or purposes) pursued by legislators. Scrutinising motives is often as important as scrutinising consequences.

Download of the Week: "Constitutional Rights, Remedies, and Transsubstantivity" by Crocker

The Download of the Week is Constitutional Rights, Remedies, and Transsubstantivity by Katherine Mims Crocker.  Here is the abstract:

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California indeed enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and inconsistency, in judicial decisionmaking—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for discrete constitutional wrongs. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial nontranssubstantivity can be transparent, translucent, or opaque based on the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently non-transsubstantive, for instance, because they apply differently to discrete referents on their faces. And indeterminate remedial standards (like the political-question doctrine for justiciability and the plan-of-the-Convention doctrine for state sovereign immunity) are opaquely nontranssubstantive because discerning their inconsistent character requires inductive analysis of actual applications.

After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional-remedies law—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent nontranssubstantivity more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque nontranssubstantivity into diverse doctrinal areas before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering transsubstantivity as an important—but not absolute—aspect of constitutional-remedies law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political and thereby reinforcing its legitimacy at this time of skepticism.

Highly recommended!  Download it while it's hot!