Legal Theory Blog

Avi-Yonah on Taxation of Acquisitive Mergers

Reuven S. Avi-Yonah (University of Michigan Law School) has posted Should Large Corporate Mergers Be Subsidized? on SSRN. Here is the abstract:

This paper examines the history of tax-free corporate reorganizations and recommends that acquisitive reorganizations should be taxable.

Baude & Paulsen on Trump v. Anderson

William Baude (University of Chicago - Law School) & Michael Stokes Paulsen (University of St. Thomas School of Law) have posted Sweeping Section Three under the Rug: A Comment on Trump v. Anderson (138 Harvard Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

In Trump v. Anderson, the Supreme Court was confronted with the explosive question of whether former President Donald Trump was constitutionally disqualified from future office by Section Three of the Fourteenth Amendment. The Colorado Supreme Court had found that he was and consequently held him ineligible for the state’s primary ballot as a matter of state election law. Rarely have the stakes of a constitutional issue been so great. The institutional, political, and personal pressures on the justices presented by Trump v. Anderson were enormous, requiring the justices to rise to the demands of the occasion in a way perhaps unrivaled in the Court’s history.

They did not do so. Unlike some “great cases” of American history, where the press of time and circumstances had the effect of concentrating the judicial mind to produce important landmark constitutional decisions, the Court in Trump v. Anderson produced a flimsy decision in a high-stakes, high-profile, high-intensity case of great importance. Instead of confronting the issues squarely, the Court tried to sweep Section Three under the rug. The Court decided little, in the end, and what it did decide was still flagrantly wrong.

The Court held that states may not enforce Section Three’s disqualifications from office in the context of state election law concerning elections to federal office. That holding is legally indefensible. It fundamentally inverts the Constitution’s text, structure, and history concerning the power of states in presidential elections.

Yet equally significant is what the Court did not decide. It did not reject the Colorado Supreme Court’s conclusion that Trump is disqualified from future office, under the standards of Section Three. It did not hold that the events culminating in the January 6 attack on the capitol fell short of the constitutional standard for an “insurrection.” It did not reject the Colorado Supreme Court’s conclusion that Trump had “engaged in” that insurrection. It did not question the Colorado courts’ factual findings concerning Trump’s conduct and intent. And–perhaps contrary to initial appearances, and contrary to the critique of the justices concurring in the judgment only–the Court did not hold that Section Three is legally inoperative without enforcement legislation by Congress. Nothing in the case contradicts the conclusions we reached in our prior scholarship, The Sweep and Force of Section Three, on any of these points.

The upshot is that Donald Trump remains constitutionally disqualified from the presidency and may not lawfully serve in that office or any other unless Congress removes the disqualification by two-thirds majorities of both houses. Nothing in Trump v. Anderson changes that legal reality. If Donald Trump was constitutionally ineligible to the presidency on March 3, 2024, the day before the Court’s decision, he remained constitutionally ineligible on March 5, the day after its decision. And he remains ineligible today. A variety of potential avenues to enforce that disqualification remain. Sweeping Section Three under the rug thus may merely have postponed the day of ultimate constitutional reckoning.

Highly recommended.  Download it while it's hot!

Dorf on Volokh on Free Speech and Antidiscrimination

Michael C. Dorf (Cornell Law School) has posted Free Speech Versus Antidiscrimination in the Scholarship of Eugene Volokh (Revised Version Forthcoming in Constitutional Commentary) on SSRN. Here is the abstract:

Conflicts between free speech and antidiscrimination law make up a substantial subset of Eugene Volokh's wide-ranging scholarship. That work includes: criticism of those courts that have interpreted expression that would otherwise be protected under the First Amendment as triggering liability for the creation of a hostile workplace environment under Title VII; views about the proper scope of constitutionally required exceptions to public accommodations laws for expressive businesses; disagreement with the common assumption that boycotts themselves, as distinct from any accompanying expression, are constitutionally protected free speech; and a bold positionson recent clashes between free speech and Title VI on college and university campuses. Canvassing this portion of Volokh's oeuvre, one sees libertarian instincts but also a genuine appreciation for competing egalitarian concerns. Even when one finds Volokh's bottom line ultimately unpersuasive, one cannot gainsay his clarity of thought, originality, or fearlessness.

Highly recommended.

Kaal on Quantum Computing and Work

Wulf A. Kaal (University of St. Thomas - School of Law (Minnesota)) has posted Quantum Economy and the Future of Work on SSRN. Here is the abstract:

The advent of quantum technologies introduced a paradigm shift in economic theory and practice and the beginning of the quantum economy. This new framework, grounded in principles of quantum mechanics such as superposition and entanglement, offers a more comprehensive understanding of complex economic phenomena and aims to address the limitations of traditional economic theories. Quantum computing, in particular, stands at the forefront, offering unparalleled computational power capable of solving intricate economic models, optimizing resource allocation, and enhancing decision-making processes across various sectors. As these technologies advance, their implications for the future of work are profound, impacting job dynamics, skill requirements, and organizational structures. Quantum computing may automate routine tasks and optimize complex processes, potentially displacing certain job roles. However, it also creates new opportunities in emerging fields such as quantum programming, algorithm design, and quantum cryptography, requiring highly specialized knowledge and skills. This necessitates a significant shift in the skills and learning landscape, emphasizing higher-order cognitive skills, soft skills, interdisciplinary knowledge, and continuous learning. The integration of quantum technologies will transform organizational structures and processes, with decentralized autonomous organizations (DAOs) and smart contracts democratizing decision-making and introducing new models of compensation. The impact of quantum technologies will vary across regions and industries, influenced by infrastructure, education, and policy. Developing nations may face unique challenges and opportunities, necessitating tailored approaches to workforce adaptation and technological integration. The shift towards a quantum economy also raises significant ethical and societal considerations, including disparities in access to quantum resources and the potential for increased inequality. By fostering interdisciplinary collaboration, continuous learning, and inclusive dynamic and evolutionary decentralized governance models, the global workforce can effectively adapt to the transformative impact of quantum technologies, ensuring a future of equitable and sustained economic growth.

Roughan on the Official Point of View and Normative Social Practices

Nicole Roughan (University of Auckland - Faculty of Law) has posted The Official Point of View and the Official Claim to Authority (Oxford Journal of Legal Studies, volume 38, issue 2) on SSRN. Here is the abstract:

This article argues for the revision of two devices used in contemporary jurisprudence to explain the normativity of law. Both the idea that law claims authority and the notion that law either has or is represented by agents with an internal point of view rely upon descriptive or conceptual accounts of legal officials. In contrast, this article advocates a focus on what it is about officials that makes their conduct normatively significant, and argues that the role of official is created by normative social practices which generate and then carry standing as a special kind of agency. That idea of officials is then used to argue for an account of law's normativity in which the official role entails occupatio n of an 'official point of view', from which an 'official claim to authority' holds law out as authoritative fo r subjects whilst committing its officials to the pursuit of its legitimacy.

Highly recommended!

The Preconditions for Collaborative Constitutionalism: A Comment on "The Collaborative Constitution" by Kavanagh

There is a wonderful symposium on Aileen Kavanagh's new book, The Collaborative Constitution, at Balkinization.  My contribution is entitled The Preconditions for Collaborative Constitutionalism, you can read it by following the link.  Here are the first two paragraphs:

Aileen Kavanagh’s important book, The Collaborative Constitution, offers a deep, insightful, and optimistic analysis of constitutional theory that aims to displace the conventional narrative that pits judicial supremacy and the institution of judicial review against a form of legislative supremacy that would take constitutions away from the courts. Kavanagh’s alternative is a collaborative constitution—in which the constitutional order is structured via interactions between judicial, legislative, and executive institutions and actors. Kavanagh mostly explores these themes in the context of the United Kingdom with less extensive discussion of Canada and other commonwealth systems.  Although the theoretical chapters in the beginning of the book are framed generally, Kavanagh chose not to engage in in-depth exploration of the implications of her theoretical framework for other constitutional orders, including that of the United States. A wise choice, given the effort required to apply a rich constitutional theory to even a single constitutional system.

Nonetheless, Kavanagh’s book will prompt many readers to ask, “How could Kavanagh’s framework be applied to the American context?” There are, of course, many obvious differences between the UK and the US. Some of those differences are legal. The US has an integrated text that constitutes its written Constitution, but the UK’s constitutional order is an amalgam of written documents and unwritten norms and conventions. In the US, federalism is understood as a fundamental restraint that Congress cannot override, but in the UK the devolution or centralization of power is (at least in theory) subject to ordinary legislation enacted by Parliament. In the US, divided government (different parties control the presidency and Congress) is common, but in the UK, Prime Ministers and their cabinets must have the support of Parliament and usually the PM is the leader of a party with a parliamentary majority. Other differences are jurisprudential. Constitutional theory in the US is dominated by the debate between originalism and living constitutionalism, but that debate is peripheral or irrelevant in the UK.

Lots more on Balkinization!

 

Legal Theory Lexicon: Open and Contested Questions of Law

Introduction

First-year law students may come into law school believing that they will learn "the law"--a body of settled rules that decide cases.  But early on, they are likely to discover that many legal questions are open to dispute and others have never been addressed by an appellate court.  Sometimes there is "settled law."  But some questions are open and others are contested.

This installment in the Legal Theory Lexicon takes a look at open and contested questions of law and contrasts these two categories with law that is settled or binding  As always, the the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Open Questions of Law

What is an "open question of law"?  Let's start with a relatively simple example from an opinion by Judge Sweet of the United States District Court for the Southern District of New York.  The case involves a question about the application of the Fifth Amendment right against compelled self-incrimination in the context of private papers in light of binding precedent that addressed the application of the Fifth Amendment to business records.  Here is how Judge Sweet used the phrase "open question of law":

The Second Circuit has followed the Fisher–Doe analysis in In Re Proceedings before August 6, 1984 Grand Jury . . . and affirmed the district court's order directing the witness to produce a tape recording, found to be a business record, that the defendant had made of conversations between himself and others pursuant to an act-of production immunity order. . . . The Court of Appeals, however, expressly stated that the question of whether the Fifth Amendment protects the contents of private non-business papers had been left open in Fisher and remained open in this Circuit. Accordingly, to the extent the documents subpoenaed are non-business records, movant's motion to quash presents an open question of law.

In re Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741 F. Supp. 1059, 1064–65 (S.D.N.Y. 1990) (citations omitted and emphasis added).  From the perspective of the District Court judge, the question whether private non-business papers was open, because there was no controlling precedent on the question.

Open questions of law arise in the context of vertical stare decisis, where the question is whether a lower court is bound by the holding of the opinion of a higher courts, but they also can arise in the context of horizontal stare decisis.  For example, a three-judge panel of the Second Circuit could be faced with the same open question as was Judge Sweet--and so could the United States Supreme Court.  Unlike a District Court judge who is bound by precedent from the relevant Circuit and from the Supreme Court, the Supreme Court itself is not bound by horizontal stare decisis.

Nonetheless, there is an important difference between legal questions the Supreme Court has previously decided and those which are open, even when the court is one of last resort and does not consider itself bound by its own prior decisions.  At the very least, courts of last resort consider their own prior decisions to be presumptively valid, and they may go further and give them considerable "weight."

The question as to what constitutes a holding is the the subject of another entry in the Lexicon.  A question of law is open if it is not governed by a prior holding that has either vertical or horizontal stare decisis effect.

Contested Questions of Law

Contested questions of law are conceptually distinct from open questions.  A question of law is contested if it is the subject of current disagreement and dispute.  Importantly, questions of law may be contested, even though there is a controlling precedent from the relevant court of last resort.  For example, the constitutionality of the death penalty under the Eighth Amendment was actively contested by the Justices of the United States Supreme Court, both before and after Furman v. Georgia, a 5-4 decision that invalidated all the death penalty statutes that were in place at the time of the decision.  Some Justices believed that the death penalty was always unconstitutional; others believed that Furman was wrongly decided.  The Justices continued to disagree and dissent despite the fact that there was a controlling decision that bound the lower federal courts. When Furman was eventually  overruled, the question continued to be contested for some time.

If the law is contested, it is contested by some group.  For practical purposes, it matters very much who is contesting.  For example, if some question comes before the Supreme Court and is resolved by a nine to zero decision, the fact that a group of law professors or political pundits disagree may not have much practical significance.  But if the Supreme Court decides an issue by a five to four decision and the dissenting Justices continue to press their argument in subsequent cases, that fact has practical consequences.  Lawyers may continue to argument the point in their briefs to the Supreme Court, and the Justices may continue to argue and deliberate about the contested question.  Justices may change their minds or newly appointed Justices may tip the balance on the issue.

The contestedness of a question may vary over time.  Academic critics of the death penalty continue to press their points, but there is no active campaign by a group of Justices on the Supreme Court to overrule the decisions holding that the the death penalty is not per se unconstitutional.  By way of contrast, Roe v. Wade was actively contested by the Justices despite the fact that the Supreme Court has declined to overrule it on many occasions over a period of decades. Dobbs eventually overruled Roe, but the validity of Dobbs continues to be actively contested 

The Relationship Between Open and Contested Questions of Law

Some questions of law are neither open nor actively contested.  Such questions are settled in the fullest sense of "settled law."  Other questions are both open and contested: there is no controlling precedent and the relevant judges disagree about what the legal norm ought to be.  And yet other questions of law are open (there is no controlling precedent), but uncontested--all of the relevant judges agree about what the rule ought to be.  And finally, there are questions of law that are contested despite the fact that they are not open.

Settled Law

The distinction between open and contested questions of sheds light on another important concept--the notion of "settled law."  Because a question of law can be contested even if it is not open, "settled law" is not identical with the set of legal issues upon which there are controlling precedents.  Moreover, settled law can become "unsettled" if lawyers and judges begin to question the correctness of holdings that are binding (in the vertical stare decisis context).  The process of unsettling law is sometimes related to large movements in legal theory.  For example, if the Supreme Court's approach to statutory interpretation and construction shifts from a mixture of purposivism and intentionalism to textualism, then many questions of statutory interpretation that are not "open" may become "contested."

In addition, there may be settled law, even on questions that are technically open.  Consider an issue of law that has not been addressed by the Supreme Court or the Courts of Appeal.  Suppose that many District Courts have addressed the question and that they all come out the same way.  Remember, District Court decisions have no stare decisis--even within the district in which the decision was rendered.  Now add the fact that the question is uncontested; no one is arguing that all the District Courts have gotten it wrong.  The law on this question is settled--even though it involves an open question of law.

How Do Courts Decide Questions of Law that Are Both Open and Contested?

When the law is both open and contested, two things are true: (1) there is no controlling precedent and (2) there is a first-order disagreement about what the legal norm ought to be.  How are such questions resolved by courts?   Judges might vote their policy preferences--and surely they sometimes do.  But many judges believe that it is improper for a judge to resolve and open and contested question based on their personal preferences.  Such judges may resort to second-order legal theories to resolve first-order questions.  For example, if the open and contested question involves a statute, the judge might look to a theory of statutory interpretation and construction such as textualism, purposivism, or intentionalism.    In Similarly, if there is an open and contested question of constitutional law, the judge might look to the original public meaning of the constitutional text, on the one hand, or look to some form of living constitutionalism, on the other.

Of course, judges disagree about which second-order legal theories are best.  Some judges are statutory textualists, but others believe that they are bound by legislative intent; yet others attempt to discover the objective purpose of the statute.  Moreover, there are judges who are pragmatists or pluralists about statutory interpretation.  In other words, the question as to which second-order theory of statutory interpretation and construction is best is itself a contested question of legal theory.  And the same is true for second-order theories of the common law and of constitutional interpretation and constructions.

This fact is important for lawyers.  Lawyers almost always try to argue that their client is entitled to win on the basis of existing caselaw, but when there is an open and contested question of law, appeals to the cases and preexisting black-letter law will not suffice.  Good advocates recognize this fact, but it is not uncommon to read a brief that claims that an obviously open question of law was resolved in a prior case.

Moreover, the existence of open and contested questions of law might also be important to law students, who might be inclined to approach law school exams via the familiar IRAC formulate.  The problem arises at the "R" (rule) step, because if the exam includes an open and contested question of law, there is no "R"--no preexisting legal norm that resolves the question. 

Conclusion

Lawyers, law students, judges, and legal scholars all need the ability to recognize open and contested questions of law.  Of course, lawyers sometimes given advice about or litigate questions that are neither open nor contested and judges decide such questions.  For legal scholars, it is a bit different.  Traditional doctrinal scholarship--especially treatise writing--includes case crunching that synthesizes the black letter law.  But most modern legal scholarship that addresses first-order questions of law addresses questions that are open, contested, or both.

Related Lexicon Entries

• Legal Theory Lexicon 005: Holdings
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction

Bibliography

• G. Alexander Nunn* & Alan M. Trammell, Settled Law, 107 VA. L. REV. (forthcoming 2021).
  

(This entry was last modified on September 14, 2024.)

Legal Theory Bookworm: "Marx" by Leiter & Edwards

The Legal Theory Bookworm recommends Marx by Brian Leiter & Jaime Edwards.  Here is a description:

The writings of Karl Marx (1818–1883) have left an indelible mark not only on the understanding of economics and political thought but on the lives of millions of people who lived in regimes that claimed (wrongly) his influence. Trained as a philosopher and steeped in the thought of Hegel, Marx turned away from Hegelian philosophy after 1845 towards a philosophy that incorporated economics and history. It is this Marx that endures and to which this outstanding introduction is devoted.

Jaime Edwards and Brian Leiter begin with an overview of Marx's life and intellectual development, including his early years as a journalist in Germany before his exile in London. They then introduce and assess the fundamental elements of Marx’s thought:

Marx’s theory of history and historical change (historical materialism)
class conflict, the state, and the Communist revolution
Marx’s theory of economics, especially the labour theory of value, and his prediction of the collapse of capitalism
the nature and role of ideology in Marx’s thought
Marx’s theory of human nature and the good life, including his arguments concerning alienation
Marx’s legacy and influence, including Western Marxism, the Frankfurt School, and “feminist Marxism”.
Including annotated further reading suggestions at the end of each chapter and a glossary of technical terms, this is an indispensable introduction to Marx's philosophical thought. It will also be extremely useful to those in related disciplines such as politics, sociology, history, and political economy.

And from the reviews:

"A tour de force. Not only the best available introduction to Marx’s thought and to post-Marx Marxist theories, but also of interest to specialists. The organization is excellent, and the writing is always clear and jargon-free. It covers all the main topics that a book on Marx should address. It is remarkably fair and balanced, sympathetic to Marx’s ideas, but also appropriately critical of them." - Allen Buchanan, Duke University, USA

"A philosophical introduction to Marx which manages to be genuinely accessible without avoiding controversy or consigning its subject to history. Edwards and Leiter bring Marx into a productive conversation with current work in the social sciences in order to develop and defend distinctive accounts of his views on history, ideology, and capitalism. A very welcome addition to the literature." - David Leopold, University of Oxford, UK

Download of the Week: "Contract as Exchange" by Bagchi

Aditi Bagchi (Fordham University School of Law) has posted Contract as Exchange (113 California Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

Most people agree that the institution of contract serves autonomy—or it should. But how? Philosophical theories of contract link contract and autonomy by way of an appealing intermediate principle such as the authority of the individual will, promissory morality or conventions of agreement. However, each of these theories is focused on the mental and verbal acts surrounding contract and is thus at odds with both contract as a social practice and contract law. The theories fail to account for basic features of modern contracting such as anonymity, mass scale and market determination of contract terms; facts to which both the common law and statutory regulation have long adjusted. The so-called objective theory recommends an outward turn, but it has been reduced to an epistemic constraint that reflects the limits of communication and evidence; it did not achieve the expansion of perspective that it promised.

In this Article, I propose a different approach. “Contract as exchange” emphasizes what people are trying to do when they contract. Contracting parties do not will, promise or agree for the sake of will, promise or agreement; their objectives in contract are material. Contract as exchange links autonomy to contract by way of the latter’s capacity to get people what they want from complete strangers using the mechanism of exchange. The institution of contract serves the principle of autonomy but, on this view, its contribution is contingent, not inevitable. Contract succeeds as an institution when all members of the political community can access the market to exchange their entitlements for ones that they prefer, thereby securing the cooperation of others for their own projects while contributing to the projects of others. Contract fails to promote autonomy when people face barriers to access or when their encounters with the market go so badly that their life plans are derailed.

Highly recommended. Download it while it's hot!

Noe on Loper Bright and Cost-Benefit Analysis

Paul Noe has posted Loper Bright and the Ascendancy of the Cost-Benefit State on SSRN. Here is the abstract:

The Supreme Court's overturning Chevron deference in Loper Bright Enterprises v. Raimondo launched an earnest debate about its implications. Understandably, the focus was the expected impact of its standard for judicial review of agency statutory interpretations on agency win rates, with some legal scholars predicting that "respectful consideration" (applying Skidmore) would not change the outcome in most cases. One issue that has not received the attention it deserves, however, is that Loper Bright also significantly advanced what leading legal scholars, particularly President Obama's former regulatory czar, call the "cost-benefit state"-the principle that "government regulation is increasingly assessed by asking whether the benefits of regulation justify the costs of regulation."

Grewal on Review of Tax Regulations

Andy Grewal (University of Iowa - College of Law) has posted Tax Regulations After Loper Bright on SSRN. Here is the abstract:

After decades of uncertainty, the Supreme Court, in Mayo v. United States, finally resolved a conflict over the proper deference standard for tax regulations. The Chevron doctrine, not the National Muffler doctrine, would govern whether a tax regulation properly interpreted a statute.

This period of calm would last for only a little over a decade. Through Loper Bright, the Court has now killed any form of judicial deference to agency regulations. Loper Bright upsets not only Chevron, but nearly a century’s worth of tax-specific precedents that extended deference to Treasury regulations.

This Article, prepared for the Michigan State Law Review’s Tax & Policy Symposium, explores the new administrative review framework for tax regulations. It divides the analysis between general authority and specific authority regulations. They will now face markedly different review standards. Though the sky will not fall, the new review frameworks pose difficult interpretive challenges that will take decades to resolve.

Huneeus on the Inter-American Court and Climate Justice

Alexandra Valeria Huneeus (University of Wisconsin Law School) has posted Can the Inter-American Court Tip Us toward Climate Justice? (Latin American International Law in the Twenty-First Century (Alejandro Chehtman, Alexandra Huneeus and Sergio Puig, eds, Oxford University Press, Forthcoming)) on SSRN. Here is abstract:

This chapter, from the book "Latin American International Law in the Twenty-First Century" begins by explaining the legal opportunity structure of the Inter-American Court in comparison to the three other international courts being called to issue judgments on the climate emergency. The second section highlights the features of the jurisprudence of the Inter-American Court that will be relevant to the climate docket. The third advances a prescription for the Court as it approaches its climate docket over the coming years. The chapter concludes with reflections on the unique historical role of Latin American human rights law in addressing structural injustice and economic and social rights, and how this can shape its future in the new climactic regime.

Hathaway, Khan, & Revkin on Dual-Use Objects and International Humanitarian Law

Oona A. Hathaway (Yale University - Law School), Azmat Khan (Columbia University), & Mara Redlich Revkin (Duke University School of Law) have posted The Dangerous Rise of "Dual-Use" Objects in War on SSRN.  Here is the abstract:

Each day, the news brings new stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that they are being used by militants. Sometimes called “dual-use” objects because they have both military and civilian uses—these objects are said to have lost their protection from attack under international humanitarian law because of their military use. Though the term has become common, international law does not recognize “dual-use” objects as a formal legal category. Indeed, a critical innovation of the post-war Geneva Conventions that lie at the core of modern international humanitarian law was to establish a bright line between “military objectives,” which were deemed legitimate targets of military force, and civilians and “civilian objects,” which were to be strictly protected. That bright line distinction meant new and important protections for civilians in war.

We show in this Article that the gradual rise of the idea of “dual-use” objects over the last several decades has blurred this line, placing civilians at great risk. The United States has played a critical role in the rise of “dual use” targeting. Indeed, most accounts of the origins of the concept of “dual use” targeting start with the 1991 Gulf War, in which the U.S.-led coalition’s response to Iraq’s occupation of Kuwait included airstrikes on Iraq’s electrical infrastructure and bridges. The Article reviews the history of dual-use targeting and presents an original dataset and primary source evidence from the sites of U.S. airstrikes in Iraq and Syria to illustrate the wide range of “dual-use” objects that the U.S. military has targeted, whether deliberately or not. It draws on ground reporting and research to show the true costs of this dual use targeting for civilians living in areas of conflict. The United States is far from alone in targeting dual-use objects, but the Article focuses its analysis on the United States because it plays an outsized role in shaping the law of armed conflict as a result of its capacity to project force around the world, its efforts to provide legal justifications for its use of force, and its role in setting the standards by which other states are measured. Finally, this Article offers recommendations for reforms to better protect civilians during war and prevent further erosion of the foundational principles of modern international humanitarian law.

Simon on Gatekeeping Drugs

David A. Simon (Northeastern University School of Law) has posted Gatekeeping Drugs on SSRN. Here is the abstract:

How much evidence should pharmaceutical manufacturers be required to provide before they can market new drug? With drug costs ballooning to over $500 million and marketing approval decisions increasingly contested, scholars have reached two conflicting views. Public-health scholars tend to think high evidentiary standards overseen by a strong governmental gatekeeper are important to medical progress and protecting consumers while pro-market scholars view them as impediments to innovation and a threat to public health. This Article shows these seemingly diametrically opposed views can be married using an existing system that reimburses certain unapproved uses of approved drugs-so-called off-label uses-based on evidence that they work. In these cases, reimbursement acts like an initial gatekeeper with respect to certain unapproved uses by "approving" them through payment. This system of off-label approval, therefore, resembles one that pro-market scholars desire: drug approval regulates drug entry to the market and reimbursement regulates (unapproved) drug use once on the market. Extending this system across all drug regulation reveals that changing drug approval standards has benefits and costs that both pro-market and public-health scholars have not fully considered. It demonstrates that the potential benefits of changing drug approval are difficult to predict given the costs imposed by significantly disrupting the existing drug ecosystem. This suggests reform to drug approval should be methodical, carefully controlled, and measured.

Hornuf, Momtaz, Nam, & Yuan on Cybercrime on the Ethereum Blockchain

Lars Hornuf (Technische Universität Dresden; CESifo (Center for Economic Studies and Ifo Institute)), Paul P. Momtaz (Technische Universität München (TUM) - TUM School of Management; University College London Center for Blockchain Technologies; CESifo (Center for Economic Studies and Ifo Institute)), Rachel J. Nam (Goethe University Frankfurt), & Ye Yuan (TUM School of Management,Technical University of Munich) have posted Cybercrime on the Ethereum Blockchain on SSRN. Here is the abstract:

We examine how cybercrime impacts victims' risk-taking and returns. Our difference-indifferences analysis of a sample of victims and matched non-victims is in line with prospect theory and suggests that victims increase their long-term total risk-taking after losing part of their wealth. Victims also earn lower risk-adjusted returns in the post-cybercrime period. Victims' long-term total risk-taking increases because they increase diversifiable risk in the long term. The increased diversifiable risk correlates with victims' withdrawal from altcoins after cybercrime. At the same time, the reduction in risk-adjusted returns correlates with increased trading activity and churn, due plausibly to managing cybercrime exposure. In the cross-section of Ethereum addresses, we show that the most affluent victims take a systematic approach to restore their pre-cybercrime wealth level, while the least affluent victims turn into gamblers. Finally, a parsimonious forensic model explains a good part of the addresses' probability of being involved in cybercrime, on both the victim and the cybercriminal side.

Shrivastava on Metadata Collection by Law Enforcement in India

Abhijeet Shrivastava (University of Cambridge) & Rudraksh Lakra (O. P. Jindal Global University, Jindal Global Law School (JGLS)) have posted Confronting the Metadata Dilemma in India: a Turn to Context and Proportionality (International Journal of Law and Information Technology, Volume 32, Issue 1, 2024) on SSRN. Here is the abstract:

This paper problematizes the increasing trend of metadata collection by law enforcement, in light of the 'going dark' debate, which was spurred by the widespread adoption of secure encryption standards. Focusing on Indian privacy law, which remains nascent as of writing, we examine and propose potential constitutional limitations on metadata collection, and provide substantive guidance on their application. These limitations are bifurcated into two stages: first, whether metadata collection infringes upon the right to privacy, and second, whether the infringement is justified. In determining whether the collection of metadata in a specific case infringes privacy, we conceive of a 'contextual approach', challenging the usual ontological subordination of 'metadata' in relation to 'content data'. At the second stage, we centre the standard of proportionality. We offer substantive guidance for Indian courts at each step of the test, including the development of a 'risk profile' of metadata collection practices. Such guidance is crucial, given the technically intricate nature of cases involving metadata processing.

Leider on the Individual Right To Bear Arms For Common Defense

Robert Leider (George Mason University - Antonin Scalia Law School) has posted The Individual Right To Bear Arms For Common Defense on SSRN. Here is the abstract:

The fundamental Second Amendment debate has reached a stalemate. On the one side are those who believe that the Second Amendment secures an individual right to keep and bear arms for self-defense against crime. On the other are those who consider the right to bear arms to be a collective right to maintain a militia. But there is a third theory of the right to bear arms--a theory that was once generally agreed upon but has largely been forgotten: the right to bear arms is an individual right for common defense. This Article explains this theory and defends why it is sounder than either collective-right theories or the individual-right theories that have emerged in federal courts after Heller, which are focused exclusively on individual self-defense against crime.

Sobkowski on the Unitary Executive Theory

Patrick J. Sobkowski (Marquette University) has posted The Unitary Executive Theory: A Path Forward on SSRN. Here is the abstract:

The Unitary Executive Theory has inspired debate for nearly half a century. The meaning of Article II of the Constitution has been debated within the academy, the courts, Congress, and the Executive Branch. The Supreme Court has substantially written the theory into the Constitution, and legal scholars have taken to supporting or critiquing such decisions, largely resorting to legal history and originalism. Unitary Executive Theory projects abound.

At the same time, political scientists have done important empirical work in bureaucratic politics and the separation of powers. These scholars have shown that the picture is more complicated than the text of the Constitution admits. Indeed, the literature suggests the president is able to exercise substantial influence over policymaking, whether an agency is independent or not. This Article provides a review and synthesis of the competing scholarly methodologies for interpreting Article II and its support for the Unitary Executive Theory. It concludes by arguing for a more sophisticated, interdisciplinary approach to questions of executive power and competing interpretations of that power. The best approach is to consider not only text and original meaning, but also the literature on bureaucratic and presidential politics.

Highly recommended.

Andrias & Sachs on Law and Organizing

Kate Andrias (Columbia University - Law School) & Benjamin I. Sachs (Harvard Law School) have posted The Chicken-and-Egg of Law and Organizing: Enacting Policy for Power Building (Columbia Law Review, Vol. 124, No. 3, 2024) on SSRN. Here is the abstract:

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure enactment of those laws. Hence, a chicken-and-egg dilemma plagues the relationship between law and organizing: power- building laws may be needed to facilitate social-movement growth, but social-movement growth seems a prerequisite to enactment of power- building laws. This Essay examines the chicken-and-egg puzzle and then offers three potential solutions. By engaging in disruption, shifting political jurisdictions, and shifting from one branch of government to another, organizations of poor and working-class people can enact laws to enable the construction of countervailing power.

Highly recommended.

Ferguson on AI Assisted Police Reports

Andrew Guthrie Ferguson (American University Washington College of Law) has posted AI-Assisted Police Reports and the Challenge of Generative Suspicion on SSRN. Here is the abstract:

Police reports play a central role in the criminal justice system. Many times, police reports exist as the only official memorialization of what happened during an incident, shaping probable cause determinations, pretrial detention decisions, motions to suppress, plea bargains, and trial strategy. For over a century, human police officers wrote the factual narratives that shaped the trajectory of individual cases and organized the entire legal system.

All that is about to change with the creation of AI-assisted police reports. Today, with the click of a button, generative AI Large Language Models (LLMS) using predictive text capabilities can turn the audio feed of a police-worn body camera into a pre-written draft police report. Police officers then fill-in-the blanks of inserts and details like a “Mad Libs” of suspicion and submit the edited version as the official narrative of an incident.

From the police perspective, AI-assisted police reports offer clear cost savings and efficiencies from dreaded paperwork. From the technology perspective, ChatGPT and similar generative AI models have shown that LLMs are good at predictive text prompts in structured settings, exactly the use case of police reports. But hard technological, theoretical, and practice questions have emerged about how generative AI might infect a foundational building block of the criminal legal system.

This Article is the first law review article to address the challenge of AI-assisted police reports. The Article first interrogates the technology, providing a deep dive into how AI-assisted police reports work. Promises around innovation are countered by concerns around how the models were trained, questions around error, hallucinations, and bias in transcription, and how the final police report will be impacted by the generative prompts. Issues around structure, timing, legal gap-filling, and factual gap-filling are all addressed, with an eye toward comparing this innovation to existing human report writing.

The Article also addresses the bigger theoretical question about the role of the police report. The Article contrasts two visions of a police report: a narrow, instrumental vision of a police report and a broader, accountability vision of a police report. The goal is to show how a change in technology might also change the traditional role of the police report.

Finally, the Article explores how AI-police reports will alter criminal practice especially in misdemeanor and low-level felony cases where investigation and grand jury action is minimal. A police officer’s determination of what happened as a factual and legal matter directly impacts initial prosecutorial charging decisions and judicial pretrial detention decisions. In addition, the police report influences plea bargains, sentencing, discovery obligations, and trial practice. The open question is how reliance on AI-generative suspicion will distort the foundation of a legal system dependent on the humble police report.

Ungerer on Legislatively Liquidated Damages

Johannes Ungerer (University of Oxford - Institute of European and Comparative Law; University of Notre Dame - Notre Dame Law School) has posted Legislatively Liquidated Damages (Legiliquids) (Forthcoming in the Law Quarterly Review, 2025) on SSRN. Here is the abstract:

Legislatively liquidated damages (legiliquids), which are predetermined amounts of damages prescribed by the lawmaker, are a regulatory instrument in private law with unique characteristics and effects. Legiliquids have not been explored in English legal scholarship to date. Based on the analysis of the illustrative provisions on late payment and air passenger compensation, this article presents a conceptual definition of legiliquids and delineates them from US statutory damages. It is argued that the lawmaker prescribes legiliquids for particular breaches of contract which are both frequent and similar in kind as well as micro- and macro-economically critical, but uncontrollable by private contractual and market mechanisms. The article reveals the core characteristics of legiliquids and the doctrinal divergences from both orthodox damages law as well as contractually liquidated damages. It is further shown that legislatively liquidated damages increase procedural efficiency and have a behavioural steering effect.

Claussen on Trade Agreement Dispute Settlement Provisions

Kathleen Claussen (Georgetown University Law Center) has posted The Future of Trade Agreement Dispute Settlement Provisions (in The Concept Design of 21st Century Trade Agreements (Kathleen Claussen, Manfred Elsig, Rodrigo Polanco eds., Cambridge University Press) (2024)) on SSRN.  Here is the abstract:

This chapter begins by briefly surveying dispute settlement mechanisms that commonly appear in trade agreements. Many trade agreements include binding arbitration tools for the resolution of disputes among the parties, but not all commitments in the agreement may be subject to dispute settlement. Some trade agreements differ with respect to the legal result or outcome of the arbitration process. Agreements vary in the remedies they provide to the successful party. While a comprehensive study exceeds the bounds of this short chapter, reviewing the taxonomy is useful to understanding the landscape. After mapping the terrain, the chapter then turns to the primary issues facing states and other stakeholders as they write new trade agreements and negotiate less orthodox mechanisms to address problems that arise in trade relationships. Finally, the chapter makes recommendations for future negotiations and for further research.

Larson on Federal Land Water Rights

Rhett Larson (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Quantifying Winters Rights (48 William & Mary Environmental Law and Policy Review 659 (2024)) on SSRN. Here is the abstract:

All reservations of federal land, including Native American reservations and national forests, have water rights. These rights are referred to as “Winters rights” after the seminal U.S. Supreme Court case. That case recognized such rights’ existence, but it did not quantify the amount of water of those rights. Federal courts have applied various approaches to quantifying Winters rights. Recent decisions in Arizona state courts have taken new and different approaches to quantification of both tribal and non-tribal Winters rights. These state court decisions have important implications for federal water rights throughout the United States. This Article examines these new approaches to quantifying Winters rights, evaluates them for their impact on equitable and sustainable water policy, and proposes reforms to better adapt the adjudication of Winters rights to responding to water variability caused by climate change.

Gedicks on Second-Class Status of Free Exercise Claims

Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted The Myth of Second-Class Free Exercise (Villanova Law Review, Vol. 72, 2025) on SSRN. Here is the abstract:

Employment Division v. Smith (1990) ended nearly three decades during which the Court purported to apply strict scrutiny to incidental burdens on religion. This period departed from nearly a century during which believers held no special right to disobey laws that bind everyone else, lest each believer become "a law unto himself."

Nevertheless, the belief persists that Smith demoted free exercise to subordinate status. "It is difficult to see," Justice Barrett has observed, "why the Free Exercise Clause--lone among First Amendment Freedoms--offers nothing more than protection from discrimination" (emphasis added). Scholars rushed to endorse Barrett's suggestion that Smith relegated free exercise to second-class status. These "Smith revisionists" variously invoke expressive conduct, compelled speech, expressive association, and content-neutral regulations to show that the Speech Clause protects speech against incidental burdens but not religion.

Like early critics of Smith, the revisionists are wrong. The freedoms of press, speech, and assembly also protect primarily against discrimination. Where they protect liberty interests, so does free exercise. In fact, religious exercise enjoys more liberty protection than other 1st Amendment rights through unique doctrines prohibiting government considerations of religious questions and mandating "most-favored nation" treatment of religion.

I demonstrate that the revisionist premise of second-class free exercise is incorrect as a matter of doctrinal fact. With the Court now poised to abandon Smith, it is crucial that debates about its merits rest on an accurate comparison of the doctrines of free exercise and other 1st Amendment rights. Whatever Smith's flaws, subordinating free exercise is not one of them.

Recommended.

Colker on Sex-Based Affirmative Action

Ruth Colker (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted The Hypocrisy of Sex or Pregnancy-Based Affirmative Action (The Georgetown Journal of Gender and the Law, Volume 25, pp. 1139-1158) on SSRN. Here is the abstract:

The Supreme Court’s sex-based jurisprudence has always been a mess; the Court, for example, is not even willing to conceptualize pregnancy-based discrimination as sex discrimination. But, oddly, within this mess, the Court has consistently recognized sex-based affirmative action as consistent with its sex discrimination jurisprudence.

The Supreme Court’s race-based affirmative action jurisprudence has consisted of a different kind of mess, a confusion stemming from its choice to narrowly justify affirmative action in college admissions based on the need for a robust exchange of ideas rather than on the need to remedy centuries of race-based subjugation in our society. After decades of hammering away at this limited justification, the Court has now seemingly abandoned the race-based affirmative action enterprise altogether. This states’ rights Court has swept broadly by taking away the opportunity for state and private actors to craft effective affirmative action programs.

While critiquing this Court’s sex- and race-based jurisprudence, this Article highlights one bizarre but salutary logical outcome from these constitutional strands. Both sex-based and pregnancy-based affirmative action should be found constitutional under the logic of the Court’s existing jurisprudence. This Article urges state entities to aggressively push both sex-based and pregnancy-based affirmative action to remedy historical vestiges of discrimination in both arenas while also making the public and the courts see the absurdity of the current situation. While it is hard to imagine the current Court changing course on the need for race-based affirmative action, I hope this Article can help reinvigorate discussions about the Court’s approach to race-based affirmative action by drawing on the Court’s recognition of the continuing need for sex-based affirmative action. The robust exchange of ideas justification for race-based affirmative action has done its damage and needs to be replaced by an anti-subordination approach, which has been somewhat reflected in the Court’s sex-based jurisprudence.

Keck on Academic Freedom and Democratic Backsliding

Thomas M. Keck (Syracuse University - Maxwell School of Citizenship and Public Affairs) has posted Academic Freedom and Democratic Backsliding in the Contemporary United States on SSRN. Here is the abstract:

This paper canvasses two sets of perceived threats to academic freedom in the United States, one of which long predates Donald Trump’s presidency and the other of which emerged in its wake. The latter, but not the former, is clearly visible in cross-national data assessing the health of academic freedom in the U.S. In other words, the U.S. has witnessed decades of handwringing about free speech and academic freedom on campus, but only since 2020 have measurable declines in the quality of academic freedom emerged. Decades of handwringing about a perhaps inflated threat have undermined the capacity of higher education institutions and their supporters to defend themselves against the more recent and very real threat. In particular, U.S. higher education critics have often adopted a single-minded focus on the elaboration and defense of a particular version of free speech principles, at the expense of broader and sometimes cross-cutting principles of academic freedom. This stance has left U.S. higher education critics ill-equipped to respond to the acute crisis of academic freedom rooted in Trump-era democratic backsliding.

Narotzki & Zamir on International Tax Policymaking

Doron Narotzki (University of Akron - The George W. Daverio School of Accountancy), Tamir Shanan (College of Management), & Noam Zamir (City University of Hong Kong (CityU) - School of Law) have posted A New Governance Framework in Cross-Border Tax Policymaking (Forthcoming Brooklyn Journal of Corporate, Financial & Commercial Law, Fall 2024) on SSRN. Here is the abstract:

The first tax treaty can probably be traced to the end of the 19th century, the treaty between the Swiss Federal Council (on behalf of the Canton of Vaud) and Great Britain. However, most tax scholars refer to the period of post-World War I and the work of the League of Nations as the formative period in which international tax regime was founded. In the 1920s, the League of Nations (which initially consisted of approximately 42 member states and reaching a peak of 58 member states in the 1930s) formed a committee of four renowned economists that was asked to formulate a set of rules that would assist states in allocating taxing rights of cross-border income and gains between different taxing jurisdiction and that would reduce double taxation. The committee presented its report in 1923, which proposed a compromise between capital exporting countries and capital importing countries (the closest equivalent of developing and developed countries).

Following World War II, the international tax work was highly influenced by the OEEC, the predecessor of the OECD (made by 38 rich member-states), leaving behind the U.N., which mainly served as a voice for the developing countries. In the 21st century, the international tax framework is still influenced by the OECD and the G20 accompanied. For instance, in the early 2010s, the G20 was an important driver in the OECD’s BEPS project.

Over the past decade, international tax policy decisions are allegedly no longer made by a few dozen OECD member states, but by over 140 countries from all regions and levels of development through the ‘Inclusive Framework’ on an equal footing, however recent scholarly literature identifies obstacles that lead to an unequal participation of developing countries in practice. Our article will explore the relations between developed and developing countries, the different organizations’ impact in shaping the international tax policymaking and propose that a new World Tax Authority (WTA) would replace the existing governmental framework, or to hand it over to a more politically balanced international organization such as the WTO or to the World Bank that neither of which is bound by decision-making arrangements that require achieving consensual support of all its member states.

Furthermore, and irrespective of the formation of a WTA (which may possibly be viewed as undermining national sovereignty in tax matters), with the rise of bilateral tax treaties together with the intensifying of global mobility of businesses, investments, trade and migration has undoubtedly increased the potential tax conflicts which are currently by thousands tax tribunal around the world and tens of thousands if not hundreds of thousands tax judges and arbitrators that interpret cross-border tax disputes in a manner that maintains their national fiscal revenues which create competing and overlapping claims to tax cross-border income and gains and uncertainty in the application and interpretation of the tax rules that govern cross-border transactions.

We therefore propose forming an international world tax court (WTC) whose justices be appointed in a manner that would represent high- and low-income tax countries. This novel tax court would serve as the supreme judicial authority and its rulings would be ideally binding by national judges from all over the world. Nevertheless, to the extent that it would be difficult for countries to waive their independence in interpreting tax treaties, we propose that the courts' rulings will have declaratory (non-binding) status. The non-binding status would still assist national judges from all over the world interpret tax treaties in a more consistent and conform manner.

Busch et al on Data and Private Law

Christoph Busch (University of Osnabrück - European Legal Studies Institute; Yale University - Yale Information Society Project), Catalina Goanta (Utrecht University - Faculty of Law), Katarzyna Kryla-Cudna (University of Bristol), Monika Leszczyńska (Texas A&M University School of Law), & Vanessa Mak (Leiden University) have posted Should Data Drive Private Law? (Technology & Regulation, Vol. 2022, pp. 81-87) on SSRN. Here is the abstract:

This special issue tackles the question of whether and how data shapes private law. The development of new technologies enabled the generation, collection and processing of both personal and non-personal data on an unprecedented scale. The implications of this phenomenon for private law are threefold. One, how does data affect our understanding of technology regulation in private law relationships? Two, how does data affect the way in which private law is applied? Three, what is the role of data in the design of law from a public policy perspective that transcends doctrinal considerations relating to private law?

Slomanson on Trump v. United States

William R. Slomanson (Thomas Jefferson School of Law) has posted Presidential Immunity: Precedential Impunity? on SSRN. Here is the abstract:

At term’s end, the U.S. Supreme Court’s Trump v. U.S. immunity opinion spawned a multiple-issue remand. But it also created new presidential immunity law, while taking a number of prosecutorial options off the table. This essay summarizes the Supreme Court’s newly established precedents and its handful of remanded issues. Some prominent examples follow:

• Core official acts are now characterized as absolutely immune from criminal prosecution, when the president “acts within the ‘outer perimeter’ of his [or her] official responsibility.” But what if a bribe motivates a pardon, senior official removal, or veto of congressional legislation?
• When disentangling “official versus unofficial” acts, charging allegations involving former President Trump’s intent must be stricken from the January 6 indictment. Courts may no longer “deem an action unofficial merely because it allegedly violates a generally applicable law.” Is the line between official and unofficial acts or omissions objectively discernible? Content driven?
• Presidents may now, free of any legal exposure, discuss potential investigations and prosecutions with their Attorney Generals, and other Justice Department officials. Thus, “the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
• Former President Trump’s discussions with former Vice President Mike Pence “in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.” That presumption must be tethered to far more “fact-specific” charges than in other criminal prosecutions. Will this by-product of the FRCP 9(b) heightened pleading requirement spawn a deluge of litigation in the wake of a Titanic over-reach?
• The “long-recognized aspect of Presidential power … using the office’s ‘bully pulpit’ to persuade Americans … in ways that the President believes would advance the public interest … [renders] most of a President’s public communications … [as] likely to fall comfortably within the outer perimeter of his official responsibilities.”

This snapshot of the Trump v. U.S. (majority) opinion is designed as a starting point for those who must now embrace the Herculean task of deciphering the Court’s beyond-nuanced directives.

McGinnis & Rappaport on Original Public Meaning

John O. McGinnis (Northwestern University - Pritzker School of Law) & Michael B. Rappaport (University of San Diego School of Law) have posted What is Original Public Meaning? on SSRN. Here is the abstract:

The concept of Original Public Meaning (OPM) unifies originalist scholars and judges around a single object of interpretation-the meaning of a text at enactment, whether the Constitution or a statute. But beneath that consensus lurks unsettling disagreement and confusion. Whether the relevant meaning is that which is understood by the ordinary public (the lay meaning) or by those more knowledgeable about law (the legal meaning) affects the likelihood of finding accurate and determinate constitutional meaning. It can make a great difference to the outcome of important cases, like the disqualification of Donald Trump.

Unfortunately, many commentators embrace the lay meaning because they mistakenly believe that “public meaning” in OPM entails lay meaning. But the term “public meaning” did not originally signify meaning understood by ordinary people. Instead, as we show in this first history of OPM, “public meaning” signified the meaning expressed by written text as opposed to framers’ secret intent. This account of OPM distinguishes originalist textualism from originalist intentionalism and has nothing to do with distinguishing lay from legal meaning. Commentators are also misled by their view that Justice Scalia embraced lay meaning, but we show that he understood that public meaning connoted only express meaning.

While the lay meaning view largely eliminates legal meanings from the Constitution, the expressed meaning view is fully compatible with them. We show that Justice Scalia in fact explicitly embraced legal meaning as do leading commentators on OPM, such as Dean John Manning, and at least implicitly those current Justices inclined to originalism. The Article then shows that the legal view is correct, because the Constitution’s legal nature is supported by its numerous legal terms and its evident appeal to legal interpretive rules. We reject on both theoretical and empirical grounds an argument for a lay reading by Professor Larry Solum, a leading originalist scholar.

Highly recommended! I have many thoughts about this important and challenging article, but for now, my advice is to read McGinnis and Rappaport.

Albert on Decolonial Constitutionalism

Richard Albert (University of Texas at Austin - School of Law; University of Texas at Austin - Department of Government; Université Paris II - Panthéon-Assas; Universidad de Especialidades Espíritu Santo; Universidad Externado de Colombia - Facultad de Derecho; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Toronto - Faculty of Law; University of Ottawa - Faculty of Law; Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law; Airlangga University; Yale University; Maharashtra National Law University Mumbai) has posted Decolonial Constitutionalism on SSRN. Here is theabstract:

The American Declaration of Independence kindled the first successful decolonial movement in the modern world, culminating in the enactment of the United States Constitution. From colony to sovereign state to Great Power, the United States modeled for subordinated peoples abroad how to launch and win their own battles for sovereignty. Since the end of the Second World War, however, America’s eighteenth-century precedent of revolutionary self-determination is no longer the prevailing path to decolonization. The traditional warmaking toolkit for winning independence—revolution, illegality, and violence—has been replaced by more orderly tactics consonant with the rule of law. Evolution, lawfulness, and continuity are the touchstones in the new global model of decolonial constitutionalism that now lights the path to self-determination.

Decolonial constitutionalism is the use of legal, legitimate, and non-violent means to assert sovereignty, to secure rights, or to achieve recognition for a people, nation, or state that is legally or politically subordinate to domestic or foreign actors. In contrast to the American model of revolutionary self-determination, this new global model of decolonial constitutionalism has pluralized actors and sites of contestation, though the decisive objective of decolonization remains the same. Once won in the theatre of war, decolonization is now prosecuted in parliaments, courts of law, and the public square. The protagonists are no longer soldiers and generals; they are politicians, lawyers, judges, and civil society. Nor does self-determination today necessarily entail establishing a new state in the international order and taking a seat among equals alongside the countries of the world. In our new era of non-violent claims to sovereignty, decolonial movements choose instead to write new constitutions for existing states, to amend enduring constitutions, to enforce treaty rights, to promulgate multilateral agreements, or to pursue analogous courses of disruptive constitutional activity well short of declarations of independence. Decolonial constitutionalism therefore refers to a suite of strategies to exercise self-determination, defined expansively to comprise a broad scope of decolonial objectives consistent with the rule of law.

In this Article, I introduce, illustrate, and theorize decolonial constitutionalism as the modern form of self-determination. Drawing from historical and modern decolonial movements, I show how subordinated peoples have seized the levers of law and politics to innovate new paths to self-determination without taking up arms, in the process showing similarly situated peoples how to achieve their own goals of independence, nationhood, or constitution-making in a manner that reinforces rather than undermines the rule of law. These strategies have proven ultimately more productive for decolonial movements to free their peoples from bondage in law or politics, to attract ideologically aligned partners at home and abroad, and to more effectively communicate to internal and external audiences the moral legitimacy of their claims to self-determination.

Highly recommended. Download it while it's hot!

Shaub on Common Law Executive Privilege and Congressional Oversight

Jonathan David Shaub (University of Kentucky - College of Law) has posted Common Law Executive Privilege(s) (100 Indiana Law Journal ___ (forthcoming)) on SSRN. Here is the abstract:

There are few Supreme Court cases that enjoy as much widespread support as the Court’s unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information and executive privilege. But that disagreement does not extend to Nixon. Both branches claim Nixon as the foundation of their respective—and contrary—constitutional positions. Nixon thus remains the unquestioned jurisprudential foundation for the modern doctrine of executive privilege. But a close inspection demonstrates that this foundation is not a stable one; instead it is a foundation largely constructed on the basis of unnecessary, ill-considered dicta.

As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an issue that was neither briefed nor contested by the parties—whether the information at issue was protected by a constitutional evidentiary privilege. The executive branch has weaponized that conflation in the context of congressional oversight and created prophylactic constitutional doctrines to thwart inquiry into congressional need. The conflation at the heart of Nixon has also created a mismatch in scholarship, such that the recent scholarship on secrecy, common law privileges, and FOIA practices relating to law enforcement information, state secrets, and state constitutional privileges is almost entirely divorced from work on congressional oversight and executive privilege. That partition exists because of Nixon and despite the fact that the same types of information and accountability interests are at stake.

This Article attempts to sever the entrenched conflation at the heart of Nixon and modern executive privilege doctrine and reestablish—in the context of congressional oversight—the distinction between common law executive privileges and the constitutional authority of the two branches. That conflation is the foremost obstacle to resolution the repeated, intractable interbranch disputes over information. But such an avenue is only possible if both Congress and the executive branch are willing to forgo some of their entrenched categorical positions, including the congressional refusal to recognize the legitimacy of common law privileges. Severing that conflation will restore to conversations about congressional oversight the policy and accountability considerations that animate these common law privileges as well as provide a new theoretical paradigm—grounded in common law—that transforms difficult constitutional questions that have recently confounded courts and scholars, such as a former president’s authority to assert executive privilege or the ability of the government to protect sensitive information held by third parties, into routine questions of evidentiary privilege.

Highly recommended.

Ferreira, Ramoglou, Savva, & Vlassopoulos on CEO Salary Caps and Limitarian Preferences

João R. Ferreira (Nova School of Business and Economics), Stratos Ramoglou (University of Southampton), Foivos Savva (University of Southampton) & Michael Vlassopoulos (University of Southampton; IZA -- Institute for the Study of Labor) have posted "Should CEOS' Salaries Be Capped?" a Survey Experiment on Limitarian Preferences on SSRN.. Here is the abstract:

This paper investigates preferences for limiting top incomes and wealth through a survey-based experiment with a large sample of participants (N = 3,954) from the US and Germany. Using a revealed preferences approach, we find that a significant majority (around 85%) of participants support income limits (have limitarian preferences). Importantly, we also find that a large share of these participants are driven by inequality aversion (weak limitarians), while a significant proportion of participants (around 30%) support limits irrespective of inequality (strong limitarians). Preferences for wealth caps are more polarized than for income caps, with higher shares of strong limitarians and those who oppose limits (non-limitarians). Notably, our participant classification predicts "real-world" voting behavior in a petition that required effort to sign. In terms of underlying motivations, strong limitarians exhibit less concern about the negative impacts of limits on economic efficiency, are less inclined to attribute top incomes and wealth to merit, are more supportive of government redistribution, and are more concerned about the effects of wealth concentration on corruption and the environment. These findings have important implications for economic theories of social preferences and can inform policy discussions around CEO compensation and wealth taxation.

Interesting and recommended.

Gill on d’Avray on Ekelund & Tollison on Public Choice Explanations of the Medieval Church

Anthony Gill (University of Washington - Department of Political Science; Baylor University) has posted Of Principals, Agents, and Transaction Costs: A Response to d'Avray (Public Choice. Forthcoming 2025) on SSRN. Here is the abstract:

Can the organization and actions of the medieval Christian Church and its leaders be understood through the theoretical lens of economics and public choice? This is the central question raised by noted Oxford historian David d’Avray in his review of the works of Robert Ekelund, Robert Tollison, and collaborators. While d’Avray has many specific issues with Ekelund and Tollison’s (henceforth ET) analysis, he centers his main critique on whether the Christian Church can be understood as a centralized economic firm. Instead of resembling a modern corporation, d’Avray holds that “the medieval church [sic] was a multitude of discrete systems within a common legal framework” (p. 1). He does grant that the Church was “a unified system in some respects: compulsorily unified in belief and held together by the system of canon law” (p. 3 emphasis added). However, General Motors, the illustrative example used in Sacred Trust (Ekelund et al., 1996: 20), and the Church are two different beasts (p. 3). This is consistent with d’Avray’s assertions that an economic analysis of the Church as a firm is at best a metaphor even though ET assert it is literally a firm (see p. 1, 5, and 7). By insinuating that economics can provide no more than metaphor, he essentially denies ET any credible claim to causal explanation. This is unfortunate given that the Church is the most enduring hierarchical institution human history has known, lasting for at least 1,700 years if not two millennia. Economic theory in its many guises has added immensely to our understanding of complex organizations. Any organizational structure capable of lasting millennia, and attracting a billion adherents, should fall within the explanatory domain of public choice, if not political economy more broadly

Claussen & Blankley on Adminsitrative Agency ADR

Kathleen Claussen (Georgetown University Law Center) & Kristen Blankley (University of Nebraska Lincoln) have posted Alternative Dispute Resolution in Agency Administrative Programs (2024 Journal of Dispute Resolution 1) on SSRN. Here is the abstract:

This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)—including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds—in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the execution of government programs entrusted to agencies by Congress, including regulatory enforcement, adjudication of claims, and administering benefits or reimbursing services such as provider fees. This Article begins to fill that gap. Today, at least three dozen federal agencies publicly promote the use of ADR for their administrative programs. This Article presents that data for the first time. The project considers five fundamental aspects of agency ADR practice: the selection and implementation of the appropriate type of ADR and associated procedures; the qualifications and selection of agency ADR personnel; training of ADR staff; ADR case management practices; and interagency mechanisms to facilitate ADR and support agency ADR personnel. Taken together, the Article makes three contributions. First, it lays out the legal framework for modern administrative-program ADR in federal agencies, along with some historical comparisons. Second, using an extensive and original qualitative empirical study, it describes agency ADR practices across the executive branch along five critical dimensions of ADR administration. Third, it develops conclusions and recommendations surrounding the uses of ADR in our administrative state.

Hay & May on Originalism and Court Packing

Nathaniel Shaw Hay (United States Court of Appeals for the Seventh Circuit) & Isaac Barnes May (Yale Law School) have posted The Originalist Case for Court Packing on SSRN. Here is the abstract:

Modern considerations of Supreme Court expansion are invariably mired in partisanship, with supporters justifying it on ideological grounds and opponents condemning it as nakedly partisan and potentially unconstitutional. This Article, however, reframes the debate about Supreme Court reform by uncovering the long-neglected history of the Court’s connection to the circuits, and demonstrating how the understandings and practices dating back to the Founding call for a larger court. In fact, fidelity to the intent of the Founders and longstanding constitutional practice calls for increasing the number of Justices to thirteen or twenty-six. While this conclusion may seem startling, reestablishing the Court-circuit connection would not only conform to the Constitution but would have structural and practical benefits.

From the Founding era until after the Civil War, the judiciary’s structure and function tightly linked the Justices to the federal judiciary and the nation as a whole via the circuit courts. This connection, though largely forgotten today, comprised a bundle of key principles and practices that were unquestioned at the time. These included the principle of parity between the number of Justices and the number of circuits, the practice of circuit riding—whereby each Justice was assigned to and heard cases in a single circuit, and the circuit residency requirement, which mandated that Justices be residents of their assigned circuit. These interrelated elements fostered a grounded and democratically legitimate Court, and they were considered binding and self-evident for the first 140 years of American history. So deeply entrenched was this constitutional framework that even at the height of the Civil War, President Lincoln adhered to it without question. It was not until the late nineteenth century that this link began to erode, culminating in 1929 when Congress abruptly dismantled the Founders’ judicial structure by creating a tenth circuit without appointing a corresponding tenth Justice.

This neglected history is crucial in several respects. First, it demonstrates that increasing the number of Supreme Court justices is not merely consistent with longstanding historical practices, but is in fact demanded by the Founders’ intentions for the judiciary. While court expansion may intuitively seem radical, this Article reveals how those who believe in a historical approach to constitutional understanding should embrace, rather than reject, such expansion. Second, the historical perspective furthermore challenges modern assumptions about the Supreme Court and the judiciary, revealing how drastically different the contemporary system is from what it once was. Neither the Founders nor President Lincoln could have imagined a Supreme Court totally divorced form the circuits, whether in number or operation—yet that is precisely where we find ourselves in the present day. Finally, the history this Article excavates offers a constructive path forward in addressing the modern criticisms of the Court. To this end, this Article advocates for reestablishing the Court’s connection with the circuits—a reform which, despite appearing unconventional, is in fact more constitutionally grounded and politically feasible than many other proposed reforms. At a minimum, this would involve increasing in the number of justices to align with the number of circuits, but ideally it would also entail reviving those longstanding norms and practices that served the Court for so long.

And from the paper:

An originalist approach that anchors itself solely to the Constitution’s text can have only very little to say about the American judiciary, as so much of that system was left by the Founding generation to be established and elaborated by the first Congress. However, originalism has come a long ways since mere textualism.66 Our argument for expanding the Supreme Court and restoring the circuit system to its original form aligns with this modern, more rigorous version of originalism.67 The early functioning of the three branches during the nation’s Founding era is crucial in this project, as these initial practices established what it was that the Constitution meant—including, in particular, how the very skeletal provisions of Article III would be fleshed out and how the judiciary would function in practice.

Bagchi on Contract as Exchange

Aditi Bagchi (Fordham University School of Law) has posted Contract as Exchange (113 California Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

Most people agree that the institution of contract serves autonomy—or it should. But how? Philosophical theories of contract link contract and autonomy by way of an appealing intermediate principle such as the authority of the individual will, promissory morality or conventions of agreement. However, each of these theories is focused on the mental and verbal acts surrounding contract and is thus at odds with both contract as a social practice and contract law. The theories fail to account for basic features of modern contracting such as anonymity, mass scale and market determination of contract terms; facts to which both the common law and statutory regulation have long adjusted. The so-called objective theory recommends an outward turn, but it has been reduced to an epistemic constraint that reflects the limits of communication and evidence; it did not achieve the expansion of perspective that it promised.

In this Article, I propose a different approach. “Contract as exchange” emphasizes what people are trying to do when they contract. Contracting parties do not will, promise or agree for the sake of will, promise or agreement; their objectives in contract are material. Contract as exchange links autonomy to contract by way of the latter’s capacity to get people what they want from complete strangers using the mechanism of exchange. The institution of contract serves the principle of autonomy but, on this view, its contribution is contingent, not inevitable. Contract succeeds as an institution when all members of the political community can access the market to exchange their entitlements for ones that they prefer, thereby securing the cooperation of others for their own projects while contributing to the projects of others. Contract fails to promote autonomy when people face barriers to access or when their encounters with the market go so badly that their life plans are derailed.

Highly recommended. Download it while it's hot!

Choi & Gulati on the Trump Judges

Stephen J. Choi (New York University School of Law) & Mitu Gulati (University of Virginia School of Law) have posted How Different Are the Trump Judges? on SSRN. Here is the abstract:

Donald J. Trump's presidency broke the mold in many ways, including how to think about judicial appointments. Unlike other recent presidents, Trump was open about how "his" judges could be depended on to rule in particular ways on key issues important to voters he was courting (e.g., on issues such as guns, religion, and abortion). Other factors such as age and personal loyalty to Trump seemed important criteria. With selection criteria such as these, one might expect that Trump would select from a smaller pool of candidates than other presidents. Given the smaller pool and deviation from traditional norms of picking "good" judges, we were curious about how the Trump judges performed on a basic set of measures of judging. One prediction is that Trumpian constraints on judicial selection produced a different set of judges. Specifically, one that would underperform compared to sets of judges appointed by other presidents. Using data on active federal appeals court judges from January 1, 2020 to June 30, 2023, we examine data on judges across three different measures: opinion production, influence (measured by citations), and independence or what we refer to as "maverick" behavior. Contrary to the prediction of underperformance, Trump judges outperform other judges, with the very top rankings of judges predominantly filled by Trump judges.

Fascinating. Highly recommended.

Daniel on Purdue Pharma

Josiah M. Daniel III (Vinson & Elkins L.L.P.; UT Austin, Dept. of History) has posted Early Ruminations on the Supreme Court's Purdue Pharma Decision on SSRN. Here is the abstract:

The June 27, 2024 decision of the Supreme Court in the Purdue Pharma case is significant for Chapter 11 bankruptcy practitioners, professors, and judges. The author offers early observations and criticisms.
First, he predicts this decision’s impermanence based on the justices’ votes not aligning ideologically and the 5-4 tally. In addition, both majority and dissent recommend congressional legislation to rectify the situation. And the ostensibly “categorical” holding of the majority is modified by many repetitions of the catchphrase “place on the table” and other drafting references indicating some wiggle room.

Second, the author notes that the ability to incorporate into a mass tort plan a settlement with related parties that is based on an appropriately sized payment for a release of debtor-derivative and other property-of-the-estate claims subsists. The range is broad, and a little known Seventh Circuit case, In re A.G. Financial, shows the utility of such a release.

Third, the paper calls out the majority’s attempt to harness legal history by asserting that “[e]very bankruptcy law . . . from 1800 until 1978, generally reserved the benefits of discharge to the debtor who offered a ‘fair and full surrender of [its] property.’” But municipal bankruptcy has never, from its creation by Congressman Hatton Sumners in 1934 and 1937 as Chapter IX of the Bankruptcy Act of 1898 to Chapter 9 of the Bankruptcy Code today, required such an asset surrender.

Moreover, the majority contends that there is “no . . . case suggesting American courts in the past enjoyed the power in bankruptcy to discharge claims brought by nondebtors against other nondebtors, all without the consent of those affected.” This is puzzling because the dissent cites many Supreme Court decisions such as UNR Industries and Johns-Manville and continuing with A.H. Robins and Dow Corning that not only “suggested” but actually held that “claims brought by nondebtors against other nondebtors” may be released involuntarily.

Fourth, the paper observes that the simultaneous citation of a legal authority, Reading Texts by Scalia and Garner, by the majority and the dissent illustrates the instrumental nature of the current Court’s judging; criticizes the dissent for its comment that “many of [the Sacklers] live . . . beyond bankruptcy jurisdiction”; informs that, in authoring the dissent, Justice Brett Kavanaugh called on mass tort bankruptcy research he had done two decades ago when he served on President George W. Bush’s staff; and complains of three drafting annoyances that detract from clear discourse.

In this and other mass tort cases, there should always be a bankruptcy deal to be negotiated and accomplished, the author posits.