Legal Theory Blog

Legal Theory Lexicon: Indeterminacy, Determinacy, and Underdeterminacy

Introduction

It all depends on your first year section, but many law students begin to get a sinking feeling about the law early in their first year. Does the law actually make any difference to the way cases are decided? Before law school, most of us would answer "Yes, of course." And many law students start law school with the assumption that they will "learn the rules." But in contemporary American legal education, many students encounter a thesis that goes something like this:

The laws have nothing to do with how cases come out. They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please.

This counterintuitive position is a version of the claim that law is indeterminate, or what we might call the Indeterminacy Thesis.

The Indeterminacy Debate

The Indeterminacy Thesis is associated with legal realism, but in its most strident form, it is most strongly identified with the Critical Legal Studies movement--a loose and multifaceted cluster of legal scholars that became very prominent in the 1980s.

The indeterminacy debate is itself complicated.  One version of the debate is about the claim that the law does not constrain judicial decisions. Put differently, a strong version of the claim is that all cases are hard cases and that there are no easy cases. The strongest version of the claim is the notion that any result in any legal dispute can be justified as the legally correct outcome, but the thesis can be modified or weakened in various ways.  Of course, the thesis can be weakened in various ways; we will examine some of the modified versions of the Indeterminacy Thesis in this post.

What does the Indeterminacy Thesis mean?

Let's call the claim that the laws (broadly defined to include cases, regulations, statutes, constitutional provisions, and other legal materials) do not determine legal outcomes the Indeterminacy Thesis. Because there are many different versions of the Indeterminacy Thesis, our approach will be to identify clearly the distinct versions of the Indeterminacy Thesis and then to consider each version of the thesis on its own merits.

Indeterminacy versus Underdeterminacy

The next step in clarifying the indeterminacy debate is to distinguish between "indeterminacy" and "underdeterminacy" of law. Thus far, we have accepted the implicit assumption that indeterminacy and determinacy are exhaustive categories, i.e. that the decision of a case is either determined by the law or it is indeterminate. This assumption is not correct. A legal dispute may be constrained by the law, but not determined by it.

Roughly, an case is underdetermined by the law if the outcome (including the formal mandate and the content of the opinion) can vary within limits that are defined by the legal materials. This approximation can be made more precise by considering the relationship between two sets of outcomes of a given case. The first set consists of all possible results — all the imaginable variations in the mandate (affirmance, reversal, remand, etc.) and in the reasoning of the opinion. The second set consists of the outcomes that can be squared with the law — the set or legally acceptable outcomes. The distinctions between indeterminacy, underdeterminacy and determinacy of the law with respect to a given case may be marked with the following definitions:

• The law is determinate with respect to a given case if and only if the set of legally acceptable outcomes contains one and only one member.
• The law is underdeterminate with respect to a given case if and only if the set of legally acceptable outcomes is a nonidentical subset of the set of all possible results.
• The law is indeterminate with respect to a given case if the set of legally acceptable outcomes is identical with the set of all possible results.

Hard Cases

The notion of a "hard case" can now be explicated with reference to the idea of underdeterminacy. A case is a "hard case" if the outcome is underdetermined by the law in a manner such that the judge must choose among legally acceptable outcomes in a way that changes who will be perceived as the "winner" and who the "loser." The point is that the outcomes of an case need not be completely indeterminate in order for it to be a hard case; a case in which the results are underdetermined by the law will be "hard" if the legally acceptable variation makes the difference between loss or victory for the litigants. The distinction between indeterminacy and underdeterminacy is rarely observed in the indeterminacy debate, but it is nonetheless important to assessing the debate. Claims that the law is radically indeterminate are implausible, but more modest claims about underdeterminacy may both be defensible and play a role in a radical critique of liberal legal theory.

Is the law radically indeterminate?

The strongest (the most ambitious) claim about the indeterminacy of law is the claim that in every possible case, any possible outcome is legally correct. In other words, the Strong Indeterminacy Thesis is the claim that the law is radically indeterminate:

The Strong Indeterminacy Thesis: In any set of facts about actions and events that could be processed as a legal case, any possible outcome — consisting of a decision, order, and opinion — will be legally correct.

To falsify the Strong Indeterminacy Thesis one needs to establish that there is at least one possible case in which at least one possible outcome is legally incorrect. This refutation would disprove the Strong Indeterminacy Thesis only in the sense stipulated here; it would not establish that the law is always, usually, or even frequently determinate.

The Argument from Easy Cases

One way to establish that there is at least one possible case in which at least one outcome is legally incorrect has been called "the argument from easy cases" by Fred Schauer. In its simplest form, the argument from easy cases points to a hypothetical case in which at least one outcome is legally incorrect. The following discussion attempts to formulate one such easy case:

Consider the following case, consisting of facts, a legal rule, and a legal event. First, postulate the following set of events and actions: Ben visited Point Magu State Beach in Ventura County, California between the hours of 12:30 p.m. and 4:00 p.m. on Sunday, February 14, 2004. Second, consider the following legal rule: Section 2 of the Sherman Antitrust Act states, "Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . ." (26 Stat. 209 (1890)). Third, consider the following claim about a possible case: Ben's visit to the beach on the date and time specified would not constitute a violation of Section 2 of the Sherman Act.

In order fully to convince you of the claim that there was no violation of the Sherman Act, I would need to tell you more about what went on at the beach on that day. The details will include Ben's looking at the ocean, speaking with friends about politics, reading a book, and so forth. Children flew kites; a friend grilled chicken and hot dogs. You might want to know whether Ben discussed any business dealings at the beach: he did not. But no matter how many questions you asked, no matter how hard you tried, you would not be able to make out a legally valid case that the Sherman Act was violated. If a prosecution were filed against Ben based only on the events specified, a verdict of guilty would be legally incorrect.

This claim about legal correctness does not to deny that it is possible that things would go wrong in some way. Perjury might be committed; the judge assigned to the case might be deranged. Our system of justice is hardly foolproof, but that does not entail the further conclusion that any result is legally correct.

The upshot of this example of an easy case is this: there is at least one possible case in which at least one possible outcome is legally incorrect. Therefore, the Strong Indeterminacy Thesis (as I have defined it) is false. Notice my argument is not that the outcome of an antitrust prosecution based on the facts I outline is predictable. Rather, my claim is that one possible outcome, i.e. conviction, would be legally incorrect. If the law is correctly applied and the witnesses testify truthfully, the prosecution should fail.

Changing the Hypothetical

Of course, we can easily change the hypothetical so that the legally correct outcome would change. Just add a conspiratorial conversation at the beach that does violate the Sherman Act. But the fact that the hypothetical can be changed so as to change the legally correct outcome is not responsive to the argument from easy cases. Let us stipulate for the sake of argument that it is always be possible to add facts to an easy case such that the addition of the new facts will change the legally correct outcome of the case. This does not demonstrate that there are no easy cases.

Quite the contrary, the fact that the advocate of the strong Indeterminacy Thesis needed to add facts to the easy case in order to change the legally correct outcome shows that as originally stated the easy case was not indeterminate. If the strong Indeterminacy Thesis were true, then a reasonable legal argument should be available on the facts as originally stated in the hypothetical. The additional facts should not be necessary. That facts must be added to transform an easy case into a hard one demonstrates that the law does constrain the set of legally correct outcomes.

Is a modest version of the Indeterminacy Thesis defensible?

If the strong Indeterminacy Thesis cannot be supported, is there a more modest claim about indeterminacy that is defensible and has critical bite? One modest version of the Indeterminacy Thesis might be the following: in most (or almost all) of the cases that are actually litigated, the outcome is underdetermined by the law. This claim about indeterminacy is not refuted by the argument from hypothetical easy cases. Confirmation of the actually-litigated underdeterminacy thesis would require empirical investigation, but there are some good reasons to believe that cases which actually proceed to filing, trial, or appeal will frequently be underdetermined by the law. Litigants will rarely have an incentive to litigate easy cases. For example, in a civil dispute where the law gives a determinate answer to the question of who will win and what the amount of their judgment will be, the parties to litigation will usually prefer to settle, rather than incur the expenses of litigation. Uncertainty about the law is one of the factors that selects which cases will be filed, go to trial, and be appealed. This point should not be exaggerated, however: litigation may proceed for any number of reasons, including an irrational overconfidence in a hopeless case, uncertainty about facts in a case in which the law is clear, and so forth.

Important Cases

Another modest version of the Indeterminacy Thesis claims that while many ordinary cases are roughly determinate, all the really important cases are indeterminate. Put more precisely, the claim might be that the important issues in important cases are underdetermined by the law. If true, this claim might preserve almost all of the critical force of the strong Indeterminacy Thesis. Yes, there are easy cases, but those cases are unimportant.

One difficulty with the important case version of the Indeterminacy Thesis is its potential circularity. Our concept of what counts as an important case may have indeterminacy as a component. Part of what makes a case important is that the result is not certain or predictable; if we all knew how the case would come out, we would not be interested. Likewise, the Supreme Court may select cases in part on the basis of their legal indeterminacy.

Conclusion

I have just begun to scratch the surface of the indeterminacy debate, but I hope that I've provided enough perspective so that you can begin to think about this important question on your own. As I'm sure you know by now, I am not a fan of the radical Indeterminacy Thesis, but I also think it is important to recognize that the law is underdeterminate in important ways.

Related Lexicon Entries

• Legal Theory Lexicon 051: Vagueness and Ambiguity
• Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories

Bibliography

• Kenneth J. Kress, “Legal Indeterminacy, 77 California Law Review 283 (1989).
• Lorenz Kaehler, Indeterminacy in the law: Types and problems, IVR encyclopedie
• Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987).

Internet Resources

• Indeterminacy debate in legal theory, Wikipedia

(This entry was last revised on October 17, 2021.)

Legal Theory Bookworm: "How to Understand the Limits of Presidential Power" by Farber

The Legal Theory Bookworm recommends Contested Ground: How to Understand the Limits of Presidential Power by Dan A. Farber.  Here is a description:

The Trump presidency was not the first to spark contentious debates about presidential power, but its impact on these debates will reverberate far beyond his term. The same rules must apply to all presidents: those whose abuses of power we fear, as well as those whose exercises of power we applaud. In this brief but wide-ranging guide to the presidency, constitutional law expert Daniel Farber charts the limits of presidential power, from the fierce arguments among the Framers to those raging today. Synthesizing history, politics, and settled law, Contested Ground also helps readers make sense of the gaps and gray areas that fuel such heated disputes about the limits of and checks on presidential authority.
 
From appointments and removals to wars and emergencies, Contested Ground investigates the clashes between branches of government as well as between presidential power and individual freedom. Importantly, Farber lays out the substance of constitutional law and the way it is entwined with constitutional politics, a relationship that ensures an evolving institution, heavily shaped by the course of history. The nature of the position makes it difficult to strike the right balance between limiting abuse of power and authorizing its exercise as needed. As we reflect on the long-tailed implications of a presidency that tested these limits of power at every turn, Contested Ground will be essential reading well after today’s political climate stabilizes (or doesn’t).

And from the reviews:

"This is a wonderfully readable and insightful book on a topic of enormous importance: the constitutional parameters of presidential power in the United States. Dan Farber expertly guides readers through multiple aspects of the topic, including constitutional text, methods of constitutional interpretation, and the roles played by law, politics, and history. "—Heidi Kitrosser, University of Minnesota Law School

"Farber, one of our nation's preeminent constitutional scholars, offers a brilliant analysis of the constitutional limits and historical abuses of presidential power—an issue that has tested our democracy from the founding through the Trump era. Addressing such critical issues as foreign affairs, domestic policy, individual rights, and separation of powers, this is an essential work for anyone who wants to understand the central challenges to our democracy past, present, and future."—Geoffrey R. Stone, University of Chicago Law School

"This book is a master class on the law and politics of presidential powers. Drawing from founding debates, modern political practice, and Supreme Court case law, Farber brings clarity to the boundaries of executive authority. Another home run for Farber."—Richard Albert, the University of Texas at Austin

"Addressing our national turmoil over the nature, powers, and legitimacy of the presidency, here is an accessible, brilliant, balanced book anyone interested in these questions should want to read."—Peter L. Strauss, Columbia Law School

"Refreshingly open-minded and comprehensive. Farber writes beautifully and clearly, and he meticulously presents both sides of every issue. I disagree with much of what Farber concludes, but this is a scholarly and timely book!"—Steven Gow Calabresi, Northwestern Pritzker School of Law

"Is the President too powerful, or not powerful enough? Dan Farber’s smart, engaging book weaves together law, politics, history, and common sense to give readers, whatever their background, a new way to think about this critical question—one that doesn’t depend on whether we happen to approve of the incumbent."—David A. Strauss, University of Chicago Law School

Download of the Week: "The Law of Democratic Disqualification" by Ginsburg, Huq, & Landau

The Download of the Week is The Law of Democratic Disqualification by Tom Ginsburg, Aziz Z. Huq , & David Landau.  Here is the abstract:

Almost all constitutions, including our own, contain one or several ways to disqualify specific individuals from political office. The U.S. Constitution, indeed, incorporates no less than four overlapping pathways toward disqualification. This power of retail disqualification stands at the heartland of the complex project of democratic rule. In practice, it works both an instrument for preserving democratic rule, and also a knife against it. This Article is the first to analyze systematically the complex positive and normative questions raised by disqualification. It offers both a positive account of the function that disqualification plays in constitutional ordering, and a normative account of the role that it should play. Drawing on domestic and comparative evidence, it then develops the blueprint of an ‘optimal’ disqualification regime. This would aim at disqualifying officials who pose a clear threat to a relatively minimalist, electorally-focused conception of democracy, while avoiding overuse for less pressing ends or, worse, abuse for antidemocratic purposes. It would contain plural pathways, calibrated to avoid the possibility of partisan arbitrage. These would lean toward the regulation of individuals rather than groups. They would not usually run directly through elected bodies. The prerequisite for disqualification would more often be stated as a rule than as a standard. And the ensuing prohibitions would more often be temporary rather than permanent. This optimal approach leads to specific reform recommendations for the U.S. context. First, we demonstrate that Section 3 of the Fourteenth Amendment should be given greater specificity and shape via statute, as Congress indeed did after the Civil War, and as it is empowered to do now via its authority to “enforce” the terms of the Reconstruction amendments. Second, we develop a case for a framework statute setting forth a judicial mechanism for enforcing the two-term limit on chief executives under the Twenty-Second Amendment. Finally, we propose decoupling impeachment and disqualification, creating two distinct institutional pathways for disqualification.

Highly recommended.  Download it while it's hot!

Andriychuk on "Competition Overdose" by Stucke & Ezrachi

Oles Andriychuk (Strathclyde University Law School) has posted 'Competition Overdose': Curing Markets from Themselves? Ten Points for Discussion (Legal Studies, Vol. 41, No. 3, 2021) on SSRN.  Here is the abstract:

The times when competition policy was perceived as an axiomatic, mathematised, highly technical and pretty much non-controversial area of Law & Economics have gone. Over the last decade, competition has become a great theme again. Full of ideological appeals and statements, mindful of their political pedigree, competition law, economics and policy are transitioning from the mechanistic field of microeconomic modelling to the real world of geopolitical chessboards.

The new book by two prominent competition law thinkers Maurice E. Stucke and Ariel Ezrachi ‘Competition Overdose: How Free Market Mythology Transformed Us from Citizen Kings to Market Servants’ (Harper Business, USA, 2020, pp. 402) has triggered a vivid discussion over the ever-fading question on the goals of competition law, economics and policy and – more broadly – on the very nature of the multifaceted phenomenon of competition. The book provokes not only thoughts. From its very title, subtitle, name of chapters, normative position, methodological argumentation and the choice of preprint reviewers, across the selection of case studies and to its very writing style, the book is designed to generate discussion. And for the right reasons. The authors aim to raise (or perhaps to refine) the ethical dimension in the otherwise morally neutral phenomenon of economic competition and its regulation.

In what follows I articulate ten points for discussion, written as a reflection on the book. The main focus is on analysing the phenomenon of economic competition, and on the ways how this phenomenon should (and should never) be regulated.

Welch & SangYeob on Non-State Actors & the Convention Against Torture

Anna Welch (University of Maine - School of Law) & SangYeob Kim (American Civil Liberties Union of New Hampshire) have posted Non-State Actors 'Under Color of Law:' Closing a Gap in Protection Under the Convention Against Torture (Harvard Human Rights Journal, Vol. 35, Forthcoming 2022) on SSRN.  Here is the abstract:

The prohibition against torture is one of the most universally accepted principles of international law. Yet, the world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-State actors such as gangs, drug cartels, militias, and terrorist organizations is challenging States’ authority to control and govern their territory. Many of these non-State actors commit torture with alarming impunity. This global power restructuring is testing the ability of U.S. laws to protect those fleeing torture, especially in light of the fact that State actors (as opposed to private or non-State actors) are the primary subject of most of our international and domestic torture jurisprudence.

In the U.S., those seeking protection against deportation under the Convention Against Torture (the “CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. For example, if an individual faces torture by a police officer or other government official for non-lawful purposes, this person must not be returned to that particular country. CAT protection is still warranted even if a private actor (such as a gang member) will likely torture the individual as long as the torture is done with the actual knowledge, consent or acquiescence of a state actor, such as a police officer.

However, what is meant by “other person acting in an official capacity” such that torturous acts by non-State actors fall under Torture Convention protection remains unclear under U.S. CAT jurisprudence. In other words, to what extent might actions by non-State actors become “State-like” such that the CAT should apply. What if private actors are de facto controlling certain areas of a country untouchable by State actors? Or, what if non-State actors’ authority and presence are so significant and intertwined with State authority such that torture is occurring with impunity? Indeed, for the latter scenario, the applicant may establish CAT eligibility by showing a State actor’s acquiescence or consent. However, such cases are difficult to prove if the State excuses its inaction on its inability to protect victims from harm perpetrated by private actors. This is particularly true under current U.S. jurisprudence on government acquiescence, in which some federal courts have found that a mere inability to protect victims is not enough to meet acquiescence to the torture.

This article identifies a major chasm in U.S. CAT jurisprudence that allows individuals to be deported back to countries where they face likely torture. This article argues that resolving failures in U.S. CAT acquiescence jurisprudence addresses part of the problem as it relates to torture by private actors. However, this is only half of the bridge across the chasm. The other half requires a look at when non-State actors are acting State-like such that they should fall within the separate CAT provision of “other person acting in an official capacity.” While many aspects of the CAT has been litigated, clarified, and developed through case law since the U.S. ratified the CAT, the question of whether and when a non-State actor can be deemed an “other person acting in an official capacity” under the CAT within the United States jurisprudence lacks scholarship or case law. We make the novel argument that courts and agencies should apply factors employed in civil rights claims (also known as 1983 claims) to assess whether a non-State actor can act in an official capacity or under color of law. Doing so will help fill a critical gap in U.S. CAT protections, and thereby prevent the refoulement of individuals facing likely torture.

Kleiman on the American Rescue Plan Act

Ariel Jurow Kleiman (Loyola Law School Los Angeles) has posted Revolutionizing Redistribution: Tax Credits and the American Rescue Plan (Yale Law Journal Forum, Vol. 131 (forthcoming)) on SSRN.  Here is the abstract:

The American Rescue Plan Act (ARPA) dramatically alters the federal government’s approach to redistribution in 2021. Among its boldest reforms are its temporary expansions of the Child Tax Credit and the Earned Income Tax Credit. For the first time, ARPA authorizes meaningful cash support for nonworking families and childless workers, two groups that have been historically disadvantaged by social safety net programs. This Essay considers ARPA’s effects on low-income American taxpayers, spotlighting in particular how the reforms will protect millions of households from being pushed into poverty or further into poverty as a result of paying taxes—a phenomenon called “fiscal impoverishment.” Policy makers must make ARPA’s reforms permanent in order to ensure that low-income taxpayers remain protected past 2021. As they work to do so, policy makers should be mindful of gaps in the tax credits that will undermine the reforms’ positive effects. The Essay identifies several such gaps and argues that Congress should legislate more dramatic inclusion for households with and without children.

Sarro on Regulatory Renewal

Douglas Sarro (University of Toronto, Faculty of Law) has posted Incentives, Experts, and Regulatory Renewal (47:1 Queen's Law Journal [forthcoming in 2021]) on SSRN.  Here is the abstract:

Updating rules to reflect new information about the world is easier said than done. Common approaches include providing for periodic review of legislation by the legislature and periodic review of regulation by a regulator. But Ontario securities law does something different. It calls for a full-scale review of securities legislation and regulation every four years by a committee of third-party experts appointed by the Minister responsible for administering securities law. This article takes a hard look at this process, which has generated significant controversy within the securities industry over the past year. Advisory committee members bring expertise to their roles and, unlike the government’s in-house experts (civil servants), presumably have no incentive to lean towards making recommendations that expand bureaucratic power. But it appears these third-party experts bring other incentives to the table—incentives that could impair the quality of their recommendations and subsequent legislative and regulatory change. This article identifies these potential incentives and proposes reforms that could mitigate the risks they pose. More broadly, the article serves as a case study illustrating the need to exercise care when outsourcing regulatory renewal to third-party experts.

Brogaard & Yadav on the Corporate Bond Market

Jonathan Brogaard (University of Utah - David Eccles School of Business) & Yesha Yadav (Vanderbilt University - Law School) have posted The Broken Bond Market on SSRN.  Here is the abstract:

Valued at $11.2 trillion – equivalent in size to half the U.S. economy – the corporate bond market is opaque, illiquid and inefficient. This Article argues that the bond market – premised on contract – rests on a fundamentally flawed regulatory design that delivers neither investor protection nor market quality. It makes three contributions. First, it shows that bondholders face a conflict between securing creditor control using a tailorable contact – and the tradability of their bond claim. By tailoring a contract to match the riskiness of an issuer, bondholders end up holding a less standard claim that becomes harder and costlier to trade. Secondly, the Article develops the implications of this conflict for investor protection. Bondholders assume transaction costs that do not exist in equity markets. Activism is more difficult as investors cannot use the threat of exit cheaply to pressure managers. Monitoring costs are high as prices lack a credible surveillance function. Seen through the lens of this conflict, this Article refines the traditional notion of bondholders as being passive actors. Rather, the impossibility of achieving both control and tradability limits bondholders in their ability to push back against managerial and shareholder agency costs. In concluding, this Article sets out a three-part solution designed to create choice, control and liquidity. It proposes: (i) standardization through the creation of tiers of form contracts that can enhance liquidity while offering tailorability in the choice of model contract; (ii) a stronger role for trading platforms in monitoring and enforcing contract terms; and (iii) retaining features of the status quo as part of the new market to accommodate those that need full tailorabilty even at the cost to tradability. This solution seeks to repair the broken bond market and assure that bondholders enjoy both investor protection and market quality as a part of their claim.

Popov & Gonsalez on Mercenary Activity

Konstantin Popov (Law Institute of the Russian University of Transport) & Joao Gonsalez (Complutense University of Madrid) have posted Legal Assessment of the Phenomenon of Mercenary Activity on SSRN.  Here is the abstract:

The article analyzes the phenomenon of mercenary activity. The authors, applying legal analysis, give a legal interpretation of this phenomenon from the standpoint of both international law and in accordance with Russian legislation. The object of the study is mercenary activity as a socially dangerous modern phenomenon.

Hofbauer on the Right to Self-Determination

Jane Hofbauer (University of Vienna - Section for International Law & International Relations; Bundeswehr University Munich) has posted Self-Determination, Right to (Christina Binder, Manfred Nowak, Jane A Hofbauer, Philipp Janig (eds), Elgar Encyclopedia of Human Rights (2022, Forthcoming)) on SSRN.  Here is the abstract:

The paper provides an overview of the right to self-determination in international law. The right to self-determination is a collective right which is applicable to all peoples, whether or not they are constituted as independent states. While generally recognized as one of international law’s most fundamental principles and hence constituting – at least in part – a jus cogens norm of an erga omnes character, its application and the often therewith connected claim to independence frequently raises some of international law’s most divisive questions. The paper offers a brief historical overview, along with the evolvement of the legal framework and sources relating to the right. It then discusses the content and subjects of the right.

Halbrook on Bogus & Anderson on the Second Amendment & Slavery

Stephen P. Halbrook (Independent Institute) has posted The Second Amendment Was Adopted to Protect Liberty, Not Slavery: A Reply to Professors Bogus and Anderson on SSRN.  Here is the abstract:

Was the Second Amendment right of the people to bear arms adopted to protect liberty or to perpetrate slavery? The latter was the thesis first published by Professor Carl Bogus in a 1998 law review article “The Hidden History of the Second Amendment.” His basic argument is that the Amendment was adopted so that the Southern states could maintain militias to suppress slave rebellions. New life was given to the thesis by Professor Carol Anderson in her 2021 book The Second, which asserts that the Amendment was “not some hallowed ground but rather a bribe, paid again with Black bodies.”

As Bogus concedes, no direct evidence supports the thesis. Instead, historical fact refutes it. The predecessor of the Amendment was the English Declaration of Rights of 1689, which protected the right of Protestants to have arms. England had no domestic slave population. Beginning in 1776, some states adopted bills of rights that recognized the right to bear arms. Three of them were Northern states that abolished slavery. When the federal Constitution was proposed in 1787, it was criticized for lack of a bill of rights. Demands for recognition of the right to bear arms emanated from antifederalists, including abolitionists, in the Northern states, while several Southern states ratified without demanding amendments at all.

New Hampshire, whose bill of rights was read to abolish slavery, was the first state to ratify the Constitution and demand a prohibition on the disarming of citizens. The Virginia ratifying convention followed. While some supported an amendment that the states could maintain militias if Congress neglected the same, support for the militia was largely tied to rejection of a standing army, not maintenance of slavery. The right to bear arms was proposed in a declaration of rights that had nothing to do with slavery. New York ratified next, also proposing recognition of the arms right.

James Madison introduced what became the Second Amendment in the first federal Congress, and it worked its way through both Houses without any hint of concern for the interests of slavery. Congress rejected the separate structural amendments that included a proposal for more state powers over the militia.

Rhode Island, the last of the original thirteen states to ratify the Constitution, demanded both recognition of the right to bear arms and abolition of the slave trade. Vermont was then admitted as a state – it had abolished slavery and recognized the right to bear arms in its 1777 Constitution – and it now ratified the Second Amendment.

Contrary to Bogus, no secret conspiracy was afoot to make “the right of the people” to bear arms an instrument of slavery. Instead, the abolitionists, and then the framers of the Fourteenth Amendment, would use those words to show that “the people” meant just that. African Americans were people and were thus entitled to all of the rights of Americans. The failure at the Founding was not that the rights of citizens were accorded to whites, but that these rights were not accorded to all persons without regard to race. By its very terms, the Second is a bulwark for the protection of the fundamental rights of all of the people.

Diamantis & Thomas on Abolition of Corporate Criminal Law

Mihailis Diamantis (University of Iowa - College of Law) & W. Robert (Will) Thomas (University of Michigan Ross School of Business) have posted But We Haven't Got Corporate Criminal Law! (43 J. Corp. L. (forthcoming 2022)) on SSRN.  Here is the abstract:

Should the United States retain corporate criminal law? For more than a century, pearl-clutching abolitionists have decried the conceptual puzzles and supposed injustices of corporate criminal liability. Meanwhile, enthusiastic proponents of corporate criminal law have celebrated a system that they believe can deliver justice for victims and effective punishment to corporate malefactors.

The abolitionists won long ago… through craftiness rather than force of reason. By arguing that the United States should get rid of corporate criminal law, abolitionists have staged a debate that presumes corporate criminal law in fact exists. It does not, and it never has. The greatest trick the abolitionist ever pulled was convincing everyone to think otherwise and then duping their opponents into arguing for the status quo.

Criminal justice has four distinctive features. It 1) utilizes uniquely demanding procedure 2) to target the worst offenders with 3) the harshest penalties and 4) society’s deepest moral condemnation. The United States’ purported system of corporate criminal justice lacks all four features. The biggest corporate criminals routinely side-step all criminal procedure and any possibility of conviction by cutting deals with prosecutors, trading paltry fines and empty promises of reform for government press releases praising their cooperation. The real question is not whether the United States should retain corporate criminal law, but what it would take for the United States to have a corporate criminal justice system in the first place.

Marcos on Defeasibility & Defeaters in International Law

Henrique Marcos (Maastricht University; University of São Paulo) has posted A Study on Defeasibility and Defeaters in International Law: Process or Procedure Distinction Against the Non-Discrimination Rule (Wagner Menezes (Ed.), "International Courts and the Guarantee of Social Rights", 2021) on SSRN.  Here is the abstract:

This is a paper on legal logic and defeasibility in international law. It argues that exceptions to rules are defeaters to such rules. The paper does that by using the World Trade Organisation’s (WTO) case law on the rule of non-discrimination and exceptions grounded on process or procedure method (PPM) distinctions. By arguing that rules have defeaters, this paper indirectly claims that legal reasoning is defeasible. Further, this investigation also serves as a criticism of accounts of legal reasoning as syllogistic deductive reasoning.

Spiegelman & Sisk on Cedar Point Nursery v. Hassid

Sam Spiegelman (Cato Institute, Robert A. Levy Center for Constitutional Studies) & Gregory C. Sisk (University of St. Thomas School of Law (Minnesota)) have posted Cedar Point: Lockean Property and the Search for a Lost Liberalism (2021 Cato Supreme Court Review 165) on SSRN.  Here is the abstract:

The Fifth Amendment’s Takings Clause provides that “private property” cannot be “taken for public use, without just compensation.” While its words are simple, in practice the Clause is anything but. Differing interpretations over its history and its logical scope led to what property law scholar Allison Dunham in 1962 called a “crazy-quilt pattern of Supreme Court doctrine.” With property regulations—in contrast to condemnations, directives that restrict specified uses (or non-uses) but do not confiscate anything tangible—growing more varied over time, the Court has especially struggled to develop a coherent jurisprudence for so-called “regulatory takings.” Announced in Pennsylvania Coal v. Mahon (1922), most “regulatory takings” are now subject to a three-factor inquiry—called the Penn Central test, after its namesake 1978 case—that nearly always favors the government over aggrieved owners.

Enter Cedar Point Nursery v. Hassid., authored by Chief Justice John Roberts. Decided during the Court’s October 2020 Term, this case has the potential to move takings law in a whole new direction. Until Cedar Point, exceptions to the Penn Central test were limited to permanent physical invasions of property and to regulations resulting in a total loss of a property’s value. Cedar Point created a new exception—calling all interferences with the fundamental “right to exclude” per se takings. Of course, there are “exceptions” to this exception. When and where owners are not entitled to exclude the state—such as when government intervenes to prevent or enjoin private uses that produce public harms—bona fide property rights are disrupted. Owners are simply being forced to internalize the costs the uses of their property creates. Prohibitions on the setting of fires that might spread to neighbors, for example, are well outside the ambit of one’s property rights, even if such proscriptions resemble interferences with a “right to use.” This conception of property is deep-rooted in the Anglo-American tradition, recognized since at least the times of William the Conqueror.

Cedar Point goes a long way in returning takings law to this onetime classical liberal approach; one which American courts practiced until the New Deal Court turned property rights (among other individual economic rights) on its head. Focused on fundamental property rights, Cedar Point exhorts a view of ownership that conforms with philosopher John Locke’s position that private property is indispensable not just to human progress, but to the dignity of the individual. But the opinion does have its shortcomings. The most devasting of these is Roberts’s failure to populate the fundamental-property-rights category beyond the “right to exclude.” Instead, Roberts presented a laundry list of “exceptions to the exception.” The ruling offers lower courts little in the way of guidance on when to apply it beyond fact-patterns that immediately resemble its own. As such, Cedar Point is more of a launchpad for an eventual reorientation of takings jurisprudence. One in which the Court explicates the entire universe of “fundamental” property rights, and directs lower courts to view state interferences with all such rights as per se takings outside the jurisdiction of Penn Central’s ad hocery. It may turn out to be the end of the beginning, but it is hardly the beginning of the end.

Recommended.

Gaylord on Dobbs v. Jackson Women's Health Organization & Precedent

Scott W. Gaylord (Elon University School of Law) has posted Roe as Potemkin Village: Fallacies, Facades, and Stare Decisis on SSRN.  Here is the abstract:

The abortion debate has escalated once again, taking on a new urgency in the wake of the Supreme Court’s granting certiorari in Dobbs v. Jackson Women’s Health Organization and denying emergency relief in Whole Woman’s Health v. Jackson. In Dobbs, the Court agreed to reconsider Roe’s “essential holding,” determining whether pre-viability bans on abortion remain unconstitutional. In Whole Woman’s Health, a majority of the Court declined the request to enjoin a Texas statute banning abortions at roughly six weeks, thereby permitting the law to go into effect.

Supporters of abortion rights understandably worry that Whole Woman’s Health indicates that in Dobbs a majority of the Court will overturn or severely limit Roe. In defense of Roe and its progeny, these individuals frequently invoke Casey and stare decisis to justify retaining Roe’s viability standard, which has held sway for almost half a century. What these supporters do not do is adopt Roe’s constitutional analysis—and for good reason. As this article explains, Roe’s argument in support of viability rests on seven informal fallacies and at least one formal fallacy. While commentators on both sides of the abortion debate have highlighted problems with Roe’s reasoning, none has undertaken this type of detailed argument reconstruction. A careful review of Roe’s reasoning reveals that Casey’s use of stare decisis to preserve Roe is a Potemkin village—a tribute to a longstanding precedent that, when scrutinized, is seen to lack a constitutional foundation.

That Roe’s constitutional argument is severely wanting bears directly on the stare decisis analysis in Dobbs in two important ways. First, a key factor for the Court when determining whether to overrule a prior decision is the quality of the reasoning in the earlier case. Regardless of one’s views on abortion, Roe was poorly reasoned. Its viability standard is not predicated on the Constitution’s text, original meaning, or general purposes. As this article explains, it is grounded in a series of fallacies that do not support its holding. Thus, if the Respondents in Dobbs parrot Roe’s argument, they are apt to lose before the current Court. Second, if those defending Roe advance new arguments to supplement its reasoning, they should worry that the Court may not apply stare decisis at all. As Chief Justice Roberts explained in Citizens United, stare decisis is “a doctrine of preservation, not transformation.” If those defending Roe present novel arguments, the Court need not (and perhaps should not) defer to those arguments because the Court would be considering them for the first time.

Schauer on Act Specification & Statistical Evidence

Frederick Schauer (University of Virginia School of Law) has posted Statistical Evidence and the Problem of Specification (Episteme, vol. 19 (forthcoming 2022)) on SSRN.  Here is the abstract:

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen’s Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence -- the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system’s traditional reluctance to base liability on the conjunction of probabilities.

Highly recommended.

Encarnacion on Repair, Restoration, & Resilience & Tort Damages

Erik Encarnacion (University of Texas School of Law) has posted Two Standards of Repair: Restoration and Resilience (Oxford Studies in Private Law Theory, Vol. 2) on SSRN.  Here is the abstract:

Compensatory damages are often understood through the lens of repair. Tort theorists differ about what the fundamental *object of repair* should be—e.g., bodies, property, interpersonal relationships, normative relationships, or something else. But repair can also be distinguished by the applicable *standard of repair* governing it—i.e., which of several reparative ideals should govern an object’s repair. Courts typically presuppose a restorative standard, which seeks to undo destructive forces as though they never happened. But this paper argues that there is an overlooked standard—i.e., resilient repair—that appears in ordinary thinking about how to appropriately respond to setbacks. Roughly, this ideal encourages repair that makes its object in some significant way better than before a given setback, without seeking to erase all evidence of past injuries. After explaining the ideal and its normative underpinnings, this paper offers resilient repair as an evaluative resource to help us rethink compensatory damages. To illustrate the ideal’s utility, the paper argues that resilient repair allows us to reinterpret hedonic damages in the face of otherwise withering criticisms, including the objection that hedonic damages denigrate disabled persons. Although more might be said for and against understanding tort law through the lens of resilient repair, this paper aims to generate interest in resilience as an ideal for evaluating private law.

Pacces on Sustainability & Corporate Governance

Alessio M. Pacces (Amsterdam Law School / Amsterdam Business School (ACLE); European Corporate Governance Institute (ECGI)) has posted Will the EU Taxonomy Regulation Foster a Sustainable Corporate Governance? on SSRN.  Here is the abstract:

EU securities regulation has established a taxonomy of environmentally sustainable activities. This article discusses, from a law and economics standpoint, the potential of this taxonomy to support a sustainable corporate governance.

Corporate governance can be an efficient way to channel investor preferences towards sustainability because the concentration of institutional shareholding has lowered the transaction costs of shareholder action. However, there is a principal-agent problem between institutional investors and their beneficiaries, which may lead to greenwashing and insufficient or excessive concern for sustainability in corporate governance.

This article argues that introducing environmental sustainability into EU mandatory disclosure aligns the institutional investors’ incentives with the interest of their beneficiaries and may foster the efficient inclusion of sustainability in corporate governance. The argument is threefold. Firstly, the EU taxonomy may curb greenwashing by standardizing the disclosure of environmental sustainability. Secondly, this information may become salient for the beneficiaries as the same standards define the sustainability preferences to be considered in recommending and marketing financial products. Thirdly, sustainability disclosure prompts institutional investors to compete for sustainability-minded beneficiaries. Being unable to avoid unsustainable companies altogether, institutional investors are expected to cater to beneficiaries’ preferences for environmental sustainability by way of voice, instead of exit.

Listwa & Brilmayer on the History of Choice of Law in the United States

Daniel B. Listwa (Yale Law School) & Lea Brilmayer (Yale University - Law School) have posted Jurisdictional Problems, Comity Solutions: Lessons for the Restatement (Third) of Conflict of Laws (Texas Law Review, Forthcoming) on SSRN.  Here is the abstract:

American choice of law is today portrayed as a story of how a more modern and functionalist methodology came to overthrow the long dominant territorial system. Against this background, the situs rule—the territorial rule requiring that all property-related issues be governed by the law of the jurisdiction in which the property is located—is seen as an unusual straggler of a now-debunked theory. Central to this narrative is the idea that the vested rights theory, which was embraced by the Restatement (First) of Conflict of Laws and assumed away the possibility for overlapping jurisdictions, represented “traditional” choice of law, going back to Justice Joseph Story, the father of American conflicts law. This is the perspective adopted by the now-in-the-works Restatement (Third), which aims to usher in a new era for American conflict of laws by cutting out all vestiges of the “traditional” model—the situs rule included.

But this narrative, while broadly held, is wrong. It is a mistake to associate choice of law during the early Republic with an early twentieth-century model of territorialism. In this Essay, we explain that the early American choice-of-law model, as described by Justice Story, was not territorial, but rather intensely functional, with its prime focus being resolving the uncertainty created by the constitutional law governing the limits of personal jurisdiction and the recognition of sister-state judgments. In this context, the persistence of the situs rule appears to be not an anachronism but rather an indication that “modern” choice-of-law theories misunderstand the forces shaping conflict-of-laws doctrine today. Using the situs rule as a window into the foundations of choice of law, this Essay thus calls into question the standard narrative underlying contemporary choice-of-law literature and challenges the approach of the proposed Restatement (Third).

Raz on Commendatory Reasons

Joseph Raz (University of Oxford - Faculty of Law; Columbia University - Law School; King's College London - The Dickson Poon School of Law) has posted Are there commendatory reasons? on SSRN.  Here is the abstract:

The article considers the case for the existence of commendatory reasons, namely reasons that one is free not to conform to. A powerful case for such reasons, presented by Little and Macnamara is examined. Difficulties are explored and ways of overcoming them are suggested. In the course of the discussion the underlying issues are clarified, alternative ways to explain the leniency of reasons are briefly mentioned, and the way the case for and against commendatory reasons depends on the relations between values and reasons is explained.

Highly recommended.

Lindsay on Nonconforming Land Uses

Ira Lindsay (University of Surrey) has posted In Praise of Nonconformity (Santa Clara Law Review, Vol. 61, No. 3, 2021) on SSRN.  Here is the abstract:

Exemption of existing structures and land uses from new zoning regulations is a long-standing part of zoning practice but is often regarded as an unfortunate political concession that entrenches an irrational distinction between present uses and future use. This Article provides an unapologetic defense of statutory protection for these nonconforming existing uses. Existing use protection represents a principled position that balances the interests of property owners and the interests of the public. Far from being an unsavoury political compromise, protection of existing uses is a crucial component of modern land use regulation that balances the needs of landowners for legal certainty with the public imperative to regulate development. Existing use protection is a vital check on the excesses of fiscal zoning and an important protection for small businesses.

The special status of non-conforming uses is grounded both in the nature of zoning regulation and in the normative significance of property ownership. Existing use protection mitigates the unfairness inherent in comprehensive zoning of subjecting landowners in different zones to differing rules. It discourages disaffected neighbors from bypassing common law remedies in favor of regulatory fixes and reaffirms the function of zoning regulation as a tool to guide development to avoid future land use conflicts rather than a means to change to rules in response to ongoing disputes. Over time, comprehensive land use planning has given way to greater use of ad hoc bargaining with developers. In this context, weakening existing use protection would give the appearance of going back on a bargain and undermine the ability of local governments to bargain effectively. Property ownership provides a sphere of exclusive control in which an owner can develop her plans over time without outside interference. Existing use protection allows the property owner to make land use choices with confidence that they will be respected while still permitting local governments to control future development. In the context of onerous zoning regimes, real estate markets play a crucial role in allowing landowners to acquire property where they can be assured of their legal right to continue the present use of land.

Finally, abolishing existing use protection would have undesirable effects on property law in greatly increasing the number of takings and due process claims by landowners. The murky nature of takings and due process doctrine combined with the factual complexity of zoning cases would create great legal uncertainty without providing sufficient protection for the interests of landowners.

Ginsburg, Huq, & Landau on Democratic Disqualification

Tom Ginsburg (University of Chicago Law School), Aziz Z. Huq (University of Chicago - Law School, & David Landau (Florida State University - College of Law) have posted The Law of Democratic Disqualification on SSRN.  Here is the abstract:

Almost all constitutions, including our own, contain one or several ways to disqualify specific individuals from political office. The U.S. Constitution, indeed, incorporates no less than four overlapping pathways toward disqualification. This power of retail disqualification stands at the heartland of the complex project of democratic rule. In practice, it works both an instrument for preserving democratic rule, and also a knife against it. This Article is the first to analyze systematically the complex positive and normative questions raised by disqualification. It offers both a positive account of the function that disqualification plays in constitutional ordering, and a normative account of the role that it should play. Drawing on domestic and comparative evidence, it then develops the blueprint of an ‘optimal’ disqualification regime. This would aim at disqualifying officials who pose a clear threat to a relatively minimalist, electorally-focused conception of democracy, while avoiding overuse for less pressing ends or, worse, abuse for antidemocratic purposes. It would contain plural pathways, calibrated to avoid the possibility of partisan arbitrage. These would lean toward the regulation of individuals rather than groups. They would not usually run directly through elected bodies. The prerequisite for disqualification would more often be stated as a rule than as a standard. And the ensuing prohibitions would more often be temporary rather than permanent. This optimal approach leads to specific reform recommendations for the U.S. context. First, we demonstrate that Section 3 of the Fourteenth Amendment should be given greater specificity and shape via statute, as Congress indeed did after the Civil War, and as it is empowered to do now via its authority to “enforce” the terms of the Reconstruction amendments. Second, we develop a case for a framework statute setting forth a judicial mechanism for enforcing the two-term limit on chief executives under the Twenty-Second Amendment. Finally, we propose decoupling impeachment and disqualification, creating two distinct institutional pathways for disqualification.

Highly recommended.  Download it while it's hot!

Waldron on the Execution of Yamamoto as a Precedent for Targeted Killing

Jeremy Waldron (New York University School of Law) has posted “A Previous Instance”—Yamamoto and the Uses of Precedent on SSRN.  Here is the abstract:

When questions have been raised about targeted killing—that is, about our practice of hunting down and killing terrorist suspects identified by name—defenders of the practice often bring up the case of the 1943 killing of Japanese Admiral Yamamoto, the architect of the attack on Pearl Harbor, and they cite it as a “precedent.” Now the first meaning given to the word “precedent” in the Oxford English Dictionary is “a previous instance taken as an example or rule by which to be guided in similar cases or
circumstances; an example by which a comparable subsequent act may be justified.” Can this apply to the Yamamoto killing? In what way can a single instance like this from almost 80 years ago contribute anything to the permissibility of a highly controversial practice today? If the Yamamoto attack is a precedent, it is a non-judicial precedent and its invocation invites us to consider how precedent operates outside the framework of judicial decision. Beyond that, we must also ask what kind of justificatory work a
single instance can do in normative argument? Does it justify by being a shining example of the rightfulness of actions of this sort? Or does it justify by beginning a line of analogical conduct that increases in its justifiability the longer it goes on?

Highly recommended.

Herlin-Karnell on EU Solidarity

Ester Herlin-Karnell (University of Gothenburg, School of Law) has posted “EU Solidarity as Collective Self-Defence? Constitutionalism and the Public uses of Force” (chapter in E Herlin-Karnell & E Rossi (eds), The Public Uses of Coercion and Force: From Constitutionalism to War, Oxford University Press 2021) on SSRN.  Here is the abstract:

The chapter sets out to explore the notion of self-defense and how it is manifested in contemporary law of war. In addition, the chapter discusses the notion of collective self-defense in the context of the European Union (EU). The chapter links this debate to Ripstein’s Kant and the Law of War by using the EU as a test case of Kantian war theory. The chapter focuses on the imminence criteria for deciding on self-defense, in the context of EU security law, and to the extent to which Kant completely ruled out any preventive use of force. The EU’s fight against terrorism and security regulation appears to have many parallels with the “war” model which will be discussed in this chapter.

Kimble on the Misuse of Dictionaries

Joseph Kimble (WMU–Cooley Law School) has posted Scouring Dictionaries: Their Overuse and Misuse in the Courts (Dictionaries: Journal of the Dictionary Society of North America, Volume 41, Issue 1, 2021, pp. 249–257) on SSRN.  Here is the abstract:

Under the influence of textualism, courts have increasing turned to general dictionaries when interpreting the meaning of contested terms. This resort to dictionaries is suspect for two main reasons: as practiced, it’s arbitrary and unsystematic; and it’s linguistically questionable for determining meaning in a legal context. This article looks primarily at the first point—the courts’ arbitrariness when picking which definition they choose to apply. Using three cases from the Michigan Supreme Court, the article argues that the Court majority cherry-picked a definition that did not seem to fit with an English speaker’s common understanding of the term in context and that ran counter to common sense, practical considerations, or the statute’s purpose.

Gribnau & Dusarduijn on Principles-Based Tax Drafting

Hans Gribnau (Tilburg Law School; Leiden University) & Sonja Dusarduijn (Tilburg Law School) have posted Principles-based tax drafting and friends. On rules, standards, fictions and legal principles (In: A. Sawyer, L. Oats, and D. Massey (eds.), Contemporary Issues in Tax Research (Volume 4), Birmingham: Fiscal Publications 2021, p. 165-206) on SSRN.  Here is the abstract:

Tax complexity is a multi-faceted and pervasive phenomenon. Narrow, detailed drafting of the law is a particular manifestation of tax complexity. Tax legislatures often try to control and regulate every conceivable situation by issuing very specific rules covering the full range of circumstances. The result is a tax system is populated by dense thickets of often thorny rules, which lacks transparency and goes at the expense of certainty and equality.
Principles-based legislation is sometimes termed as an alternative regulatory instrument to counter both the complexity of detailed tax drafting and tax avoidance. However, it should not be seen as a magic formula but rather as a helpful addition to the legislature’s toolbox.
In this article we will elaborate on principles-based legislation, rule-based drafting, and two other drafting styles - legal fictions and standards. We investigate these three ‘friends’ as alternatives, or supplements, to precise rules from the perspective of (legal) principles as advocated by the legal philosopher Dworkin.
It will be argued that securing the integrity of tax law requires a balancing act between different legislative drafting styles such as fictions, standards and principles-based legislation.

Glazier on Withdrawal from Afghanistan & Guantanamo

David W. Glazier (Loyola Law School Los Angeles) has posted Withdrawal From Afghanistan Marks Guantanamo's Endpoint on SSRN.  Here is the abstract:

For two decades following the 9/11 attacks, U.S. forces engaged in combat in Afghanistan and used implied congressional authorization of the “fundamental incidents” of war to conduct detention and military trials at Guantánamo Bay. Conflict in Afghanistan has ended, but detention and military commissions proceedings continue absent political will to end them. But that is no longer an option – as the Supreme Court held in Hamdi v. Rumsfeld, detention authority ends at the close of “active hostilities.” And as it held in Hamdan two years later, military commissions lack normal constitutional authority, depending on the availability of congressional and executive wartime powers for their existence. These trials, too, cannot legitimately continue post-conflict.

While pundits continue to propose winding down Guantánamo by seeking detainee transfers with “security assurances,” the law of war mandates prompt repatriation. There is no “bad dude” exception based on general threat perceptions – only an actual criminal sentence or pending charges justify delay. Both the law of war and the Constitution require that the U.S. must now either charge detainees in federal courts, extradite them to another country for prosecution, or promptly repatriate them. The Article provides recommended dispositions for the thirty-nine detainees remaining at Guantánamo at the time of the U.S. withdrawal from Afghanistan consistent with residual law of war mandates. It concludes by arguing that this outcome actually serves larger overall U.S. national interests – Guantánamo’s fiscal, legal, moral, and political costs have long outweighed any benefits.

Leiter on the Epistemology of the Internet & Regulation of Speech

Brian Leiter (University of Chicago) has posted The Epistemology of the Internet and the Regulation of Speech in America on SSRN.  Here is the abstract:

The Internet is the epistemological crisis of the 21st-century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust. The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality of the Holocaust has any sensory evidence in support of those beliefs. Instead, we rely on epistemic authorities—biologists and historians, for example. Epistemic authority cannot be sustained by empiricist criteria, for obvious reasons: salient anecdotal evidence, the favorite tool of propagandists, appeals to ordinary faith in the senses, but is easily exploited given that most people understand neither the perils of induction nor the finer points of sampling and Bayesian inference. Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what. The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The Internet has obliterated the intermediaries who made that possible (and, in the process, undermined the epistemic standing of experts), while even the traditional media in the U.S., thanks to the demise of the “Fairness Doctrine,” has contributed to the same phenomenon. I argue that this crisis cries out for changes in the regulation of speech in cyberspace—including liability for certain kinds of false speech, incitement, and hate speech--but also a restoration of a version of the Fairness Doctrine for the traditional media.

Highly recommended.

Seligman on the Absence of Vice Presidential Power to Reject Electoral Votes

Matthew Seligman (Yale Law School) has posted The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes on SSRN.  Here is the abstract:

This Essay explains the errors in the theory advanced by John Eastman in a memorandum presented to President Donald Trump and Vice President Mike Pence which claimed that Pence had the unilateral authority to reject electoral votes when Congress convened on January 6, 2021. That Unilateral Rejection Power theory is fatally flawed in four respects. First, it rests on a misreading of the critical phrase in the Twelfth Amendment that does not follow from its text. If anything, the text indicates the Unilateral Rejection Power is incorrect. Second, it draws on an erroneous history of the Vice President’s role in the electoral counts of the 1796 and 1800 presidential elections. Third, it ignores the dispositive drafting history of the Twelfth Amendment, which definitively demonstrates that both chambers of Congress understood Article II, section 1, clause 3 to assign to Congress rather than the President of the Senate the power to count votes and decide disputes relating to that count. Congress drafted the Twelfth Amendment using precisely the same words regarding the process of counting electoral votes, thus incorporating that settled understanding. Finally, it defies reason that the Founding generation, who had just fought the Revolutionary War to overthrow a monarch to establish a representative democracy, would create a constitution that vested a single official with the legal authority to retain power for a lifetime.

This Essay offers these legal arguments in full view of the more fundamental point: that the Unilateral Rejection Power theory is a dangerous view that undercuts the basic principles of American democracy. It may seem that nothing more than that needs to be said—and that even engaging in rigorous legal argument with such a radically antidemocratic interpretation of the Constitution legitimizes a view that should simply be shunned. The tragic reality, however, is that radically antidemocratic legal views like the Unilateral Rejection Power theory have perilous influence with a powerful faction in the American political system and thus present an immense danger if not decisively rebutted. For that reason, I believe it is critical to expose that the Unilateral Rejection Power theory is not only gravely morally wrong—it is, beyond any doubt, legally wrong as well.

Recommended.

Calabresi on Ely's Representation Reinforcement Theory of Judicial Review in Comparative Perspective

Steven G. Calabresi (Northwestern University - Pritzker School of Law) has posted Democracy, Distrust, and Judicial Umpiring in the G-20 Nations on SSRN.  Here is the abstract:

"This article examines John Hart Ely's theory of judicial review set forth forty-one years ago in: John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980). In particular, it examines Ely's claim that it is normatively desirable for courts to police the political processes of change to keep them open to political outsiders and that this is in fact one thing Supreme Courts, or Constitutional Courts, do. I show that the U.S. Supreme Court has continued to play this umpiring role since 1980, although often in ways John Hart Ely may not have approved of. I then comparatively examine the judicial review systems of: 1) the United Kingdom; 2) Germany; 3) Japan; 4) South Africa; 5) Brazil; 6) Canada; and 7) Australia, and I show that in those countries Supreme Courts or Constitutional Courts ubiquitously play the role John Hart Ely describes. This helps to prove that umpiring of the political process does not raise "a political question" but instead is a core judicial function." This essay is forthcoming in Constitutional Commentary.

Recommended.

Yeinib & Bendor on International Law & Constitutional Interpretation

Shelly Aviv Yeini (NYU, Faculty of Law) & Ariel L. Bendor (Bar-Ilan University - Faculty of Law) have posted Charming Betsy and the Constitution on SSRN.  Here is the abstract:

One of the main disputes in regard to how courts should interpret the federal Constitution pertains to the legitimacy of relying on international law in constitutional interpretation. This Article examines the interpretative status of international law, in general, and the controversy over the use of international law in constitutional interpretation, in particular. The Article offers an innovative approach to the controversy based on the significant difference between customary international law and treaty law; namely, that constitutional interpretation with reference to international law should be limited to customary international law, as opposed to treaty law.

Legal Theory Lexicon: Strict Construction and Judicial Activism

Introduction

This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that sometimes seem to have very little content as used in popular discourse.

A case can be made for a revised and conceptually more coherent version of each of these concepts.  Whether constitutional theorists will be able to agree on consistent and clear definitions remains to be seen.

Strict Construction

Strict construction is short hand for the idea that the United States Constitution should be strictly construed. The phrase appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised that he would appoint judges who were "strict constructionists" as opposed to the "judicial activism" that characterized the Warren Court, but the phrase has much earlier origins and may go back as far as the late eighteenth century.

The question is: what does strict construction mean? Is there really a method of constitutional interpretation described by the phrase "strict construction" or is this a mere political slogan? The confusion engendered by the term is illustrated by the following definition (offered on law.com):

strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

This definition borders on incoherence, opposing "strict construction" to both originalism and to the notion of a living constitution--ideas that might be thought antithetical to one another. So can we offer a better definition of strict construction? One way to approach this question is via the method of separation of cases. What are the possible meanings of strict construction?

• Strict Construction as "Textualism in the Broad Sense". One possibility is that strict construction refers to textualism--the idea that all constitutional interpretations must be grounded in the text of the Constitution. There are two difficulties with this suggestion. First, almost all of the Warren Court jurisprudence to which strict constructionism was opposed was rooted in the text of the Constitution in some way. Even the "unenumerated rights" jurisprudence (e.g. the right to privacy at issue in Griswold v. Connecticut and Roe v. Wade) was grounded in the text of the 14th amendment. Second, this definition provides no content to the idea that constructions must be "strict."

• Strict Construction as "Literalism". Another possibility is that strict construction involves literal rather than purposive interpretations of the constitutional text. Perhaps, a strict construction is one that reads each clause of the Constitution to mean what the plain language says and nothing more. This idea is more promising than textualism, because it gives some real bite to the idea of "strictness" in construction. The difficulty is that the proponents of "strict construction" (and others) have rarely advocated a thorough-going literalism. That approach would, for example, mean that the First Amendment to the Constitution applies only to Congress (and not to the states, the executive, or to common-law doctrines). Other provisions of the Constitution don't seem to have any determinate literal meaning--the due process clause, the privileges and immunities clause, and the republican form of government clause come to mind.

• Strict Construction as "Originalism". Yet another possibility is that strict construction refers to some form of originalism, either original-intention originalism or original-meaning originalism. (The former looks to the intentions of the framers, whereas the latter looks to the way the text would have been understood by citizens when it was adopted.) Original-intentions originalism does not fit well with the label "strict constructionism" as it would allow courts to take into account intentions of the framers that are not "strictly speaking" in the constitutional text. The latter is a much better fit with the idea of strict construction, but the label "strict construction" is simply not very descriptive of the idea that the constitutional text should be read today in a way that fits the way it would have been read at the time it was adopted.

• Strict Construction as a "Presumption of Constitutionality". Yet another possibility is that the constitution should be construed against challenges to the constitutionality of legislation or executive action. The idea of a presumption in favor of the constitutionality of challenged action is certainly a coherent idea, but it is not clear why such a presumption should be called "strict construction." One might naturally assume that a strict construction of the constitution would invalidate government action that contravened the meaning of the constitutional text.

• Strict construction as narrow interpretation of delegated powers.  One final possibility is that a strict construction of the Constitution is one that narrowly construes Congress's delegated powers.

We could go on, but I think you will now see the point. It simply isn't clear what "strict construction" means. Once you actually give content to the idea of strict construction, then the label isn't particularly descriptive and better names can be given to the view that "strict construction" could name. For this reason, most serious constitutional theorists avoid using the phrase "strict construction." If you think you have a good reason to continue using this phrase, you might give serious consideration to offering a very careful definition when you first introduce the term.

I want to add an important qualification to this discussion.  It is entirely possible that "strict construction" once had a coherent meaning that has been "lost" with the passage of time.  If so, then "strict construction" may yet have an important role to play as a concept in constitutional history, and possibly, via that history, in contemporary theories of constitutional interpretation.

Judicial Activism

Since the Warren Court era, conservative political discourse in the United States has applauded "strict construction" and condemned "judicial activism" is bad.  Similarly, liberals defended Warren Court "activism."  Recently, the political valence of "judicial activism" may have begun to shift--as conservatives endorse some "activism" by a conservative Supreme Court and liberals criticize these same decisions.

But what is judicial activism? Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term "judicial activism" is that it translates best as "judicial decision making with which I disagree." To see why this is so, once again let us consider the possible interpretations of the phrase:

• Judicial Activism as Nonabstention. One idea would be that activist judges decide cases, whereas passive judges abstain. This would make sense of "judicial activism," but it is completely unattractive as a normative ideal. Judges need to decide cases; they need to be active in the sense that they resolve controversies.

• Judicial Activism as Exercise of the Power of Judicial Review. A second possibility is that judicial activism means striking down statutes or invalidating executive action. A passive judge approves the conduct of the other branches of government; an active judge strikes such conduct down. Once again, this interpretation is coherent, but hardly anyone thinks that it is per se wrong for judges to invalidate unconstitutional governmental action. Very few critics of "judicial activism" would criticize a court that struck down a federal statute requiring every American to attend the services of a particular denomination. Nor would many critics of judicial activism endorse a judicial decision that upheld a law reestablishing slavery.  If "activism" means "exercising the power of judicial review to invalidate executive or legislative action," then it is a coherent concept, but it would seem to be "neutral" as between good and bad judging.

• Judicial Activism as Incorrect Exercise of the Power of Judicial Review. What is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches. This naturally leads to the question, "What makes an exercise of the power of judicial review wrongful?" The answer to that question is a theory of constitutional interpretation. Different theories authorize different sets of invalidations. So, adherents of different constitutional theories would apply the label "judicial activism" to different sets of decisions.

And that's the problem with the phrase "judicial activism." One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.

Reformed Definitions

Can we rescue these concepts?  Here is a proposal for coherent and clear definitions:

• Strict Construction as Judicial Constraint by the Text and Judicial Restraint If Language is Unclear.  We might define strict construction as the conjunction of two distinct ideas.  The first element would be constraint by text.  Thus, a construction would not be strict if it was inconsistent with the linguistic meaning of the text of a statute, constitution, or other legal text.  The second element would be constraint in cases where the text was not clear, e.g., where the text was vague, open-textured, or otherwise lacked a clear and discernible meaning.

• Judicial Activism as Judicial Invalidation of Action by Legislative or Executive Officials. This definition has the consequence that "judicial activisim" would, for many constitutional theorists, be a value neutral term.  Many constitutional theories favor judicial activism in the stipulated sense: for example, originalists favor judicial activism when the orignal meaning of the constitutional text requires invalidation of a statute enacted by Congress.

Conclusion

This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally.  The vocabulary of constitutional theory is itself contested.  Phrases like "strict construction" and "judicial activism" are normatively fraught, but they may not be well defined.

For that reason, it is very important for constitutional theorists to be very careful about their use of language.  If you use these phrases, then be sure to define them!

Related Lexicon Entries

• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 063: Interpretation and Construction

Bibliography

Chad Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide

Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism" (This article is essentially reading for anyone who intends to use the phrase in constitutional scholarship.)

Frank Cross & Stefanie Lindquist, The Scientific Study of Judicial Activism

Lori A. Ringhand, Judicial Activism: An Empirical Examination of Voting Behavior on the Rehnquist Natural Court

(This entry was last revised on October 10, 2021.)

Legal Theory Bookworm: "Reviving Rationality" by Livermore & Revesz

The Legal Theory Bookworm recommends Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health by Michael A. Livermore & Richard L. Revesz.  Here is a description:

For decades, administrations of both political parties have used cost-benefit analysis to evaluate and improve federal policy in a variety of areas, including health and the environment. Today, this model is under grave threat.

In Reviving Rationality, Michael Livermore and Richard Revesz explain how Donald Trump has destabilized the decades-long bipartisan consensus that federal agencies must base their decisions on evidence, expertise, and analysis. Administrative agencies are charged by law with protecting values like
stable financial markets and clean air. Their decisions often have profound consequences, affecting everything from the safety of workplaces to access to the dream of home ownership. Under the Trump administration, agencies have been hampered in their ability to advance these missions by the
conflicting ideological whims of a changing cast of political appointees and overwhelming pressure from well-connected interest groups. Inconvenient evidence has been ignored, experts have been sidelined, and analysis has been used to obscure facts, rather than inform the public. The results are
grim: incoherent policy, social division, defeats in court, a demoralized federal workforce, and a loss of faith in government's ability to respond to pressing problems.

This experiment in abandoning the norms of good governance has been a disaster. Reviving Rationality explains how and why our government has abandoned rationality in recent years, and why it is so important for future administrations to restore rigorous cost-benefit analysis if we are to return to a
policymaking approach that effectively tackles the most pressing problems of our era.

And from the reviews:

"Reviving Rationality painstakingly documents the Trump EPA's playbook to shift the agency's priorities away from sound science and public health protections, toward fossil fuel polluters and other special interests. Livermore and Revesz detail the deep ramifications it has had for the agency's ability to build cleaner American cars, protect children's brains from the damages of mercury pollution, tackle the growing threats of climate change, and so much more. They also provide a path forward for restoring EPA and reestablishing the rule of law to protect our health, our communities, and our children's future." -- Gina McCarthy, President and Executive Officer of the National Resources Defense Council and former Administrator of the Environmental Protection Agency under Barack Obama

"A spectacular achievement, and the best imaginable foundation for thinking about the modern regulatory state. In an era focused on pandemics, climate change, inequality, and public health, Livermore and Revesz show that using the best available science, and the best available economics, offers the
best path forward ― and will help the least advantaged among us." -- Cass R. Sunstein, Robert Walmsley University Professor, Harvard Law School, and former Administrator, White House Office of Information and Regulatory Affairs under Barack Obama

"This well-reasoned book is refreshing therapy for those of us who are sick of the ideological wars in America's regulatory politics. The authors call for resumption of the legitimate roles of expertise and analysis in public administration." -- John D. Graham, Professor, Paul H. O'Neill School of Public and Environmental Affairs, Indiana University, and former Administrator, White House Office of Information and Regulatory Affairs under George W. Bush

"This book is another thoughtful and thought-provoking contribution by the authors to our understanding of critical aspects of the regulatory process. The issues discussed and perspectives provided will be particularly important to our country in the years ahead. It is a must read for those involved in the process as well as those who want a clear explanation for how we can and should evaluate government policy." -- Sally Katzen, Professor of Practice and Distinguished Scholar in Residence, New York University School of Law, and former Administrator of the Office of Information and Regulatory Affairs under Bill Clinton

Download of the Week: "The Constitution of Black Abolitionism" by Fox

The Download of the Week is The Constitution of Black Abolitionism: Re-Framing the Second Founding by James W. Fox.  Here is the abstracct:

Eric Foner has observed that historians of the Thirteenth Amendment have struggled “to find ways to get the voice of African Americans into discussions of the Amendment’s original meaning, scope, and limitation.” This article is part of a project to answer Professor Foner’s challenge to recover nineteenth-century African American constitutionalism. While there are many sources for accessing the views of African American writers, speakers, and activists, this article focuses on the rich contributions of the Black Convention Movement. Despite its importance in helping to set the terms for Reconstruction, the Black Convention Movement and the Black public sphere more generally have been under-utilized and under-studied as a part of our constitutional history. The documents from the state and national conventions of African Americans that took place from 1831 through the 1860s provide evidence of how African Americans understood constitutional ideals, principles, interpretations, and text in the period of time when significant constitutional change was about to take place. As we will see, the conventions included debates and statements about a range of constitutional ideas, from the meaning of freedom in a society infused with slavery and race prejudice, to complex views about the meaning of national citizenship, to fundamental questions about the validity and morality of the constitution itself. By the 1860s, as the Civil War revealed the possibility of an America freed from slavery, African American Conventions began to present a broad vision of civil society where constitutionally protected freedom and citizenship encompassed everything from suffrage to employment to property to education. This vision, while shared intermittently by some white abolitionist allies, was both more insistent and more encompassing than those ideas of freedom most often articulated in the white public sphere. This vision, I argue, is the lost meaning of African American constitutionalism and is one well worth exploring as we consider how and whether American constitutionalism in the twenty-first century can speak to us.

Highly recommended.