Legal Theory Blog

Legal Theory Bookworm: "The Crown and the Courts" by Flatto

The Legal Theory Bookworm recommends The Crown and the Courts: Separation of Powers in the Early Jewish Imagination by David C. Flatto.  Here is a description:

The separation of powers is a bedrock of modern constitutionalism, but striking antecedents were developed centuries earlier, by Jewish scholars and rabbis of antiquity. Attending carefully to their seminal works and the historical milieu, David Flatto shows how a foundation of democratic rule was contemplated and justified long before liberal democracy was born.

During the formative Second Temple and early rabbinic eras (the fourth century BCE to the third century CE), Jewish thinkers had to confront the nature of legal authority from the standpoint of the disempowered. Jews struggled against the idea that a legal authority stemming from God could reside in the hands of an imperious ruler (even a hypothetical Judaic monarch). Instead scholars and rabbis argued that such authority lay with independent courts and the law itself. Over time, they proposed various permutations of this ideal. Many of these envisioned distinct juridical and political powers, with a supreme law demarcating the respective jurisdictions of each sphere. Flatto explores key Second Temple and rabbinic writings―the Qumran scrolls; the philosophy and history of Philo and Josephus; the Mishnah, Tosefta, Midrash, and Talmud―to uncover these transformative notions of governance.

The Crown and the Courts argues that by proclaiming the supremacy of law in the absence of power, postbiblical thinkers emphasized the centrality of law in the people’s covenant with God, helping to revitalize Jewish life and establish allegiance to legal order. These scholars proved not only creative but also prescient. Their profound ideas about the autonomy of law reverberate to this day.

And from the reviews:

“Was Josephus doing constitutional theory when he claimed that ancient Israel was a unique, theocratic polity, ruled by God and his laws, not men? This rich and provocative book deploys skillful close readings to argue that Josephus, the rabbis, and other important post-biblical Jewish thinkers made distinctive contributions to constitutional thought, developing an original account of separated powers. Flatto’s book should be read as a prequel to Eric Nelson’s scholarship showing how early modern Western political thought received rabbinic ideas.”―Noah Feldman, author of Arab Winter: A Tragedy

“Should justice be administered independently of political authority? Through detailed consideration of a wide range of ancient Jewish texts, David Flatto adds a necessary and relevant new dimension to current thinking about the separation of powers, the independence of the judiciary, and the rule of law.”―Timothy D. Lytton, author of Kosher: Private Regulation in the Age of Industrial Food

“The Crown and the Courts offers us a learned and cogent analysis of the ways in which biblical and post-biblical Jewish sources sought to establish the independence of law from various forms of political authority. Flatto’s book is an important addition to the growing literature on rabbinic legal and political ideas.”―Eric Nelson, author of The Theology of Liberalism

Download of the Week: Constitutional Norms by Postema

The Download of the Week is Constitutional Norms--Erosion, Sabotage and Response by Gerald J. Postema.  Here is the abstract:

Respect for informal norms is essential to the integrity and effective functioning of constitutional democracies. Such norms have remarkable resilience but also are fragile in ways that we may not fully appreciate. Concern about sabotage of constitutional norms lies at the very heart of current widespread worries about the viability of democracy. This article seeks to explain the importance of constitutional norms and sources of their resilience and fragility, and to explore ways of responding to challenges that threaten their viability. After sketching a familiar and compelling conception of democracy and the rule of law, this article analyzes the nature of the social norms underlying democratic constitutions arguing that they are rooted in fundamentally discursive normative practices. It distinguishes three types of challenges to norms—those of norm infringers, those of norm entrepreneurs and those of norm saboteurs—and a repertoire of responses defenders can deploy against such breaches. The main principles of the analysis and articulated responses to norm sabotage are illustrated in an extended discussion of the recent highly partisan debate in the United States over reform of the Supreme Court.

Highly recommended.

Levinson & Macaluso on Geospatial Data & Workers' Rights

Ariana R. Levinson (University of Louisville - Louis D. Brandeis School of Law) & Maria Macaluso (University of Louisville, Louis D. Brandeis School of Law, Students) have posted Collective Action, Legislation, and Creative Litigation at the Intersection of Geospatial Data & Workers’ Rights (ABA Journal of Labor & Employment Law) on SSRN.  Here is the abstract:

“Geospatial data” is a term familiar to most geographers, but much less familiar to most attorneys, employment law scholars, and workers’ rights activists. In this article, we explain what geospatial data is and provides examples of the types of geospatial technology being used by employers to track their employees, including GPS, RFID, and microchipping implants. We illuminate the various ways that unionization protects employees from misuse of geospatial data, such as providing the right to bargain over implementation of new surveillance technologies and protection to be disciplined based on geospatial data only for cause. Examples of contractual provisions, such as those in the Teamsters and UPS collective bargaining agreement and professional sports’ contracts, that establish joint decision-making processes over the use of geospatial technology are identified. We illustrate state laws that protect against misuse of geospatial technology, such as laws prohibiting microchipping, regulating tracking devices, requiring notice before an employer monitors an employee, and prohibiting termination because of lawful off-duty conduct. We provide examples of cases brought in tort for invasion of privacy and under the Fourth Amendment for unlawful search by employees whose employers were tracking them during their personal time. We offer tools for self and community education for those interested in expanding legal protections from employer misuse of geospatial data and conclude that laws that strengthen workers’ rights organizations, such as unions, workers’ centers, worker-owned cooperatives, and mutuals, aid workers’ abilities to successfully address surveillance and the use of geospatial data by employers.

Schroeder on Frankfurter's First Amendment Jurisprudence

Jared Schroeder (Southern Methodist University) has posted Justice Frankfurter's Contextual Marketplace on SSRN.  Here is the abstract:

Justice Frankfurter is not known for foundational First Amendment opinions, like his mentors, Justices Holmes and Brandeis. He also is not known for helping to lay the groundwork for the modern First Amendment, like his rivals and contemporaries on the Court, Justices Black and Douglas. His lengthy, complex, and nuanced free-expression opinions, however, provide an alternative theoretical framework for how the marketplace of ideas can be conceptualized in the networked era. Drawing from his opinions, this article examines the historical development of marketplace theory, contending the theory has never had a monolithic meaning, and analyzes Justice Frankfurter’s First Amendment opinions, ultimately constructing the contextual marketplace. The contextual approach provides a more inclusive, malleable, and protective foundation for the marketplace in the twenty-first century, finding substantial support from Justices Holmes’s and Brandeis’s writings, modern Supreme Court decisions, and legal scholarship.

Lorca on the Presumption of Punishment

Rocio Lorca (Universidad de Chile - Criminal Law Department) has posted The Presumption of Punishment: A Critical Review of its Early Modern Origins (Canadian Journal of Law & Jurisprudence, 29(2), 385-402) on SSRN.  Here is the abstract:

Our conversations about punishment have been constrained by the presumption that crimes ought to be punished. This presumption does not entail that crimes must be punished, but rather that punishment occurs as a natural response to wrongdoing instead of as a conventional creation. As a consequence, the challenges for punishment’s justification have been reduced to the problems of purpose, opportunity and form, leaving unaddressed the question of the authority of a certain polity to impose this form of treatment on a given individual. In order to present and criticize this presumption, the article traces its origins by revisiting the debate about the nature of punishment that took place during the emergence of liberal political philosophy. After evaluating the main arguments of this debate the article concludes by arguing that liberal theories of punishment should give up this presumption.

Cross on HIV Disclosure & Domestic Violence Survivors

Courtney Cross (University of Alabama School of Law) has posted The Dangers of Disclosure: How HIV Laws Harm Domestic Violence Survivors (Washington Law Review, Vol. 95, No. 83, 2020) on SSRN.  Here is the abstract:

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts-even acts that carry low to no risk of infection-can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created to combat the spread of the disease, they are ineffective at doing so. Instead, they threaten the safety and health of people living with HIV. This Article analyzes HIV laws through the lens of domestic violence and reveals that both compliance and failure to comply with these laws can endanger survivors of domestic violence. This previously ignored double bind is significant given the reciprocal relationship between HIV and domestic violence :people living with HIV are more likely to experience domestic violence, just as survivors of domestic violence experience higher rates of HIV. Yet nearly all state HIV laws fail to recognize this inextricable relationship and, in so doing, create additional, unwarranted dangers for many individuals living at the intersection of HIV and domestic violence. This Article exposes the pernicious shortsightedness of state HIV laws and proposes reforms that would better protect both individuals at risk of infection as well as those at risk of violence.

Hickman on the Nondelegation Doctrine

Kristin E. Hickman (University of Minnesota - Twin Cities - School of Law) has posted Nondelegation As Constitutional Symbolism (George Washington Law Review, Vol. 88, 2021) on SSRN.  Here is the abstract:

The divided Supreme Court in Gundy v. United States and subsequent events have given rise to a general expectation that the Court will soon revitalize the nondelegation doctrine by replacing the intelligible principle standard. Some have greeted the prospect of this doctrinal shift with cheers of exaltation, others with cries of impending doom, anticipating the demise of the administrative state. This Foreword contends that these predictions are overblown. Statutory delegations of rulemaking authority and policymaking discretion are deeply embedded in American law, and more complicated and variable, than proponents of the nondelegation doctrine seem willing to acknowledge. The alternatives to the intelligible principle standard proposed by Justices Gorsuch and Kavanaugh are piecemeal—case by case, statute by statute, delegation by delegation. Although more categorical and sweeping options exist in theory, only Justice Thomas has expressed interest in them. Consequently, should the Court replace the intelligible principle standard, the most likely outcome is doctrinal change that is more incremental and symbolic than substantial. The decision whether to replace the intelligible principle standard should be evaluated in these terms, rather than as the dramatic change to the administrative state that some Court observers anticipate.

Highly recommended.

Wexler on Therapeutic Jurisprudence

David B. Wexler (University of Puerto Rico - School of Law; University of Arizona James E. Rogers College of Law) has posted Creating a Therapeutic Justice Culture ([2021] SAL Practitioner 20) on SSRN.  Here is the abstract:

This is a short essay designed to introduce readers--especially judges, lawyers, mental health and related professionals, and of course students--to the area of therapeutic jurisprudence (TJ). It explains TJ, its development in the area of mental health law, its conceptual framework, and its expansion to many other areas of the law, such as criminal law, family law, and the like, and it notes the importance of the overall TJ community and its resources to the continued development of the area.

The essay was invited by the SAL Practitioner, an important journal in Singapore, where great strides are being made to introduce TJ to judges, lawyers, mental health professionals and students. Its coverage, however, is relevant to all jurisdictions, and this essay will hopefully serve as a meaningful and "sticky" guide to TJ regardless of jurisdiction.

Henricksen on Disinformation & the First Amendment

Wes Henricksen (Barry University School of Law) has posted Disinformation and the First Amendment: Fraud on the Public on SSRN>  Here is the abstract:

The recent proliferation of disinformation has left legal scholars, legislators, and courts at a loss as to how to address, or even if to address, this growing problem. To begin with, spreading disinformation most often breaks no law; it is neither a crime nor a tort. Given this fact, many scholars conclude that if Congress or a state passed a law curtailing disinformation, such a content-based regulation would likely not survive a First Amendment challenge under strict scrutiny. This Article argues that much of what constitutes disinformation has no First Amendment protection in the first place because it is fraud on the public, and therefore fraudulent speech. This proposition is, admittedly, a radical one because the fraud exception to the First Amendment is normally deemed to apply only to behavior satisfying the elements of civil or criminal deceit, or one of the other long-established categories of fraud, such as securities fraud or false advertising. However, a review of how disinformation is created, spread, and bought into, as well as the harm it causes, reveals not only that disinformation is not only fraud on the public, and therefore fraudulent speech, but that it is the most harmful kind of fraud, and therefore should be the least protected. Although novel, this argument is supported by jurisprudence and public policy. Accordingly, I conclude it is urgent that legislatures and courts deem disinformation that meets specific criteria to be unprotected fraudulent speech. Failure to do this will result in the continued growth and spread of disinformation, further damaging public discourse and public health, worsening economic inequality, and generating more attacks on our democracy.

Tillman on the Oath Taken by Jacob Henry in 1809

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths on SSRN.  Here is the abstract:

The story of Jacob Henry is one which has been told and retold. It has been long celebrated, as a triumph of light over darkness, and of the progress of then-emerging American religious tolerance over older traditions of parochialism and intolerance. Our story starts with Article 32 of the 1776 North Carolina Constitution. That provision imposed a religious test:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Article 32’s religious test extended to four categories of persons. It extended to atheists—those “who . . . deny the being of God.” It extended to non-Protestants—those “who . . . deny . . . the truth of the Protestant religion.” It extended to non-Christians—those “who . . . deny . . . the divine authority either of the Old or New Testaments.” Lastly, it extended to an amorphous category of persons—those “who . . . hold religious principles incompatible with the freedom and safety of the State.” A person falling into any of these four categories was not “capable of holding any office or place of trust or profit in the civil department within this State.” The meaning and scope of Article 32’s language has been a matter of continuing debate.

In 1809, Jacob Henry was elected to a second, consecutive annual term in the House of Commons, ie, North Carolina’s lower legislative house, as one of two members for Carteret County. According to the standard narrative, Henry was Jewish. Legislative elections were held during August 1809. The returning officers reported those persons who had been duly elected, that is, the members-elect. On November 20, 1809, the House of Commons convened in Raleigh, North Carolina, and the members-elect qualified by taking their oaths. On December 5, 1809, Hugh C. Mills, one of two members for Rockingham County, put forward a motion to declare Henry’s seat vacant based (at least in part) on Article 32 of the 1776 North Carolina Constitution. The next day, on December 6, 1809, Henry gave an impassioned speech in his own defense before the full House. Many ascribe the authorship of Henry’s speech, in whole or in part, to Judge Taylor, a Republican. Henry’s speech made no express reference to his being Jewish, and his speech did not use the words “Jewish,” “Judaism,” or “Jews.” Afterwards, Mills attempted to introduce evidence to support his allegations. But his efforts to do so were immediately thwarted by William Gaston, the single member for the town of New Bern.

Gaston argued that introducing evidence was premature at this stage. In other words, Gaston argued that Mills’s charges were insufficient as a matter of law, and so the introduction of evidence was not necessary. Gaston further argued that if the House determined that an investigation of the facts were necessary, then proceedings should be directed to a select committee or the committee of the whole. Additionally, Gaston made the argument that Article 32 reached only “offices,” not members of the legislature—and so it had no application to Jacob Henry. Gaston’s lengthy speech was followed by extensive debate among more than a few members of the Commons. Subsequently, the matter was redirected to the House’s Committee of the Whole, which heard testimony from witnesses. The committee recommended that the House reject the motion, and the House voted in favor of the committee’s recommendation. Henry kept his seat. Some reports indicate that the Commons voted unanimously to reject Mills’s motion.

The Jacob Henry literature has been primarily concerned with two questions. First, why did the members of the North Carolina House of Commons on December 6, 1809 vote against Mills’s motion to vacate Henry’s seat? That is, what motivated the members—in the sense of politics, partisanship, and personalities—to vote as they did? Likewise, what constitutional or other legal or policy rationales (if any) did the members put forward to explain their votes? A surprising number of very different views have been put forward. Second, what did Henry’s victory against purported religious intolerance mean to his contemporaries and later generations?

This Article addresses a different set of (albeit related) questions. The focus of this Article is not on what happened on December 5 and 6, 1809 and why the members of the North Carolina House of Commons voted as they did. Instead, the focus of this Article is on what happened on November 20, 1809—in other words, what legislative oath (if any) did Jacob Henry actually take? Second, how have later historians and legal commentators described and distorted our understanding of the events of November 20, 1809? And, third, why did the December 6, 1809 debate on the motion veer so far from any substantial discussion of the actual underlying events of November 20, 1809? Admittedly, this third question cannot be answered with clarity.

Recommended.

Cross on Criminal Law & HIV

Courtney Cross (University of Alabama School of Law) has posted Sex, Crime, and Serostatus (Washington and Lee Law Review, Vol. 78, No. 71, 2021) on SSRN.  Here is the abstract:

The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis - especially in the South, where HIV-specific criminal laws are enforced with the most frequency.

People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if they fail to disclose their HIV-positive serostatus before engaging in sexual or needle-sharing activities. Passed in response to panic following the discovery of HIV, these laws have not kept pace with medical advancements regarding the transmission and treatment of the infection. As a result, they criminalize behaviors that pose little risk of transmission and punish people who cannot or do not infect others. HIV criminalization laws also contribute to the spread of HIV by disincentivizing HIV testing, which would otherwise connect people to prevention and treatment plans.

While other scholars have critiqued these laws, this Article is the first to argue that state legislatures should pivot away from criminalization toward a comprehensive response to HIV informed by harm reduction-a branch of public health emphasizing risk mitigation. This approach must prioritize both the expansion of preventative services and the repeal of most HIV exposure laws. Simultaneously broadening services and narrowing criminal liability would remove barriers to HIV testing and promote early medical interventions, which reduce the spread of HIV and improve health outcomes. This paradigmatic shift also introduces a framework that can be implemented in other public health contexts that currently over-rely on criminalization throughout the region and the country.

Desai on Bostock & Multi-Modality Statutory Interpretation

Anuj C. Desai (University of Wisconsin Law School) has posted Text is Not Enough (93 University of Colorado Law Review (Forthcoming 2021)) on SSRN.  Here is the abstract:

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act protects gays and lesbians from employment discrimination. The three opinions in the case have also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism. The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation have known for decades: judges are multi-modalists, drawing from a panoply of forms of legal argumentation. In particular, Bostock shows that judges are inevitably common-law thinkers, even when interpreting statutes.

Highly recommended.

Kop on IP & Quantum Computing

Mauritz Kop (Stanford Law School ; AIRecht) has posted Quantum Computing and Intellectual Property Law (Berkeley Technology Law Journal, Vol. 35, No. 3, 2021, Forthcoming) on SSRN.  Here is the abstract:

What types of intellectual property (IP) rights can be vested in the components of a scalable quantum computer? Are there sufficient market-set innovation incentives for the development and dissemination of quantum software and hardware structures? Or is there a need for open source ecosystems, enrichment of the public domain and even democratization of quantum technology? The article explores possible answers to these tantalizing questions.

The article demonstrates that strategically using a mixture of IP rights to maximize the value of the IP portfolio of the quantum computer’s owner, potentially leads to IP protection in perpetuity. Overlapping IP protection regimes can result in unlimited duration of global exclusive exploitation rights for first movers, being a handful of universities and large corporations. The ensuing IP overprotection in the field of quantum computing leads to an unwanted concentration of market power. Overprotection of information causes market barriers and hinders both healthy competition and industry-specific innovation. In this particular case it slows down progress in an important application area of quantum technology, namely quantum computing.

In general, our current IP framework is not written with quantum technology in mind. IP should be an exception -limited in time and scope- to the rule that information goods can be used for the common good without restraint. IP law cannot incentivize creation, prevent market failure, fix winner-takes-all effects, eliminate free riding and prohibit predatory market behavior at the same time. To encourage fair competition and correct market skewness, antitrust law is the instrument of choice.

The article proposes a solution tailored to the exponential pace of innovation in The Quantum Age, by introducing shorter IP protection durations of 3 to 10 years for Quantum and AI infused creations and inventions. These shorter terms could be made applicable to both the software and the hardware side of things. Clarity about the recommended limited durations of exclusive rights -in combination with compulsory licenses or fixed prized statutory licenses- encourages legal certainty, knowledge dissemination and follow on innovation within the quantum domain. In this light, policy makers should build an innovation architecture that mixes freedom (e.g. access, public domain) and control (e.g. incentive & reward mechanisms).

The article concludes that anticipating spectacular advancements in quantum technology, the time is now ripe for governments, research institutions and the markets to prepare regulatory and IP strategies that strike the right balance between safeguarding our fundamental rights & freedoms, our democratic norms & standards, and pursued policy goals that include rapid technology transfer, the free flow of information and the creation of a thriving global quantum ecosystem, whilst encouraging healthy competition and incentivizing sustainable innovation.

Hardy on Deterrence & Employment Standards

Tess Hardy (University of Melbourne - Law School) has posted Digging Into Deterrence: An Examination of Deterrence-Based Theories and Evidence in Employment Standards Enforcement (International Journal of Comparative Labour Law and Industrial Relations, 2021) on SSRN.  Here is the abstract:

In a bid to curb employer non-compliance with wage and hour regulation, policy-makers across many different jurisdictions are seeking to deliver greater doses of deterrence. This trend stems from a series of common assumptions. In particular, it is often assumed that introducing stiffer sanctions, such as criminal penalties for wage theft, will automatically amplify the relevant deterrence effects. This article seeks to unpack these assumptions to better understand: a) how deterrence is conceptualized and understood in the context of wage underpayment; and b) which tools or approaches are likely to be most powerful in enhancing deterrence and promoting compliance. Drawing on recent developments in Australia, the article argues that alternatives to enforcement litigation – such as voluntary agreements or undertakings – may hold critical, albeit under-appreciated, deterrence value. This analysis also reveals that the perceived risk of detection, the speediness of the relevant sanction and the publicity it ultimately generates may all serve to heighten deterrence in ways that encourage and entrench employer compliance with wage and hour laws.

Miller & Oberdiek on Civil Wrongs in Private Law

Paul B. Miller (Notre Dame Law School) & John Oberdiek (Rutgers, The State University of New Jersey - Rutgers Law School) have posted Introduction to Civil Wrongs and Justice in Private Law (Paul B. Miller and John Oberdiek, eds., Civil Wrongs and Justice in Private Law (Oxford University Press, 2020)) on SSRN.  Here is the abstract:

This introduction to Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds., Oxford University Press, 2020) provides a thematic overview of the significance of civil wrongs to debate over conceptual and normative questions in private law theory, as well as a discussion of the contributions to the volume. The volume includes chapters by the editors and María Guadalupe Martinez Alles, Ahson Azmat, Nicolas Cornell, Christopher Essert, Lee Fennell, Kimberly Kessler Ferzan, Andrew Gold, John Goldberg, Ori Herstein, Larissa Katz, Gregory Keating, Liam Murphy, David Owens, James Penner, Jeffrey Pojanowski, Matthew Shapiro, Adam Slavny, Stephen Smith, Findlay Stark, Victor Tadros, and Benjamin Zipursky.

Desai on Title VII & Anti-Discrimination

Anuj C. Desai (University of Wisconsin Law School) has posted Is Title VII an "Anti-Discrimination" Law? (93 University of Colorado Law Review Forum (Forthcoming 2021)) on SSRN.  Here is the abstract:

Title VII of the Civil Rights Act of 1964 is commonly referred to as an “anti-discrimination” statute. At its core, we are told, it prohibits something we call “discrimination.” But does it? Startlingly, the answer is, no, not really. Instead, Title VII prohibits certain acts done for certain reasons. True, the prohibited reasons are precisely what everyone has long understood them to be: “because of … race, color, religion, sex, [or] national origin.” But, the prohibited acts do not require “discrimination” and in those cases where the term “discrimination” is relevant, “discrimination” simply means “make a distinction.” It does not connote any wrongfulness on the employer’s part and therefore does not mean “make an unjust distinction.” In short, Title VII is not an anti-discrimination statute, at least not as we ordinarily conceive the concept of “discrimination.”

Miller & Thumma on the Number of Supreme Court Justices

Michael Miller (University of Arizona) & Samuel Thumma (Arizona Court of Appeals) have posted It's Not Heads or Tails: Should Scotus Have an Even or Odd Number of Justices? on SSRN.  Here is the abstract:

For decades, politicians and scholars of various political persuasions have suggested reforms to “fix” the United States Supreme Court. They are often based on perceptions of partisan politics affecting the selection of justices and their resulting decision-making. Few proposals, however, address a basic, unavoidable question: Should there be an odd number of justices, or an even number? This article provides a method to address the issue, what we call “The Question.”

Notwithstanding long stretches where the Court has had an odd number of Justices, an even number is permitted and has occurred in the past. Surprisingly, there is virtually no scholarly literature about the differences between an even and odd number of justices. Yet this is a topic on which almost everyone has an immediate opinion. We submit this question probes fundamental and sometimes unexplored beliefs about the purpose and function of the Court, the decision-making process, and the roles of the three branches of government in interpreting the Constitution. It also illustrates the relative importance of getting a decision versus forging a consensus, and the difference of “slow” vs. “fast” when it comes to Constitutional interpretation.

Using an interdisciplinary approach, we examine ten factors, including efficiency, accuracy, consistency, non-constitutional cases, partisan wrangling, group dynamics, and judicial decision-making in issue selection and merits conclusion. Although SCOTUS is the primary focus, our analysis applies equally to state supreme courts having discretion in the cases and issues they choose to decide. Proposals changing the size or structure of the Court should carefully consider the impact — and potential benefits — of an even numbered Court. This article informs that discussion and provides a method to address The Question.

Balkin on Constitutional Change

Jack M. Balkin (Yale University - Law School) has posted How to Do Constitutional Theory While Your House Burns Down (Boston University Law Review, (2021, Forthcoming)) on SSRN.  Here is the abstract:

The events of the past five years, culminating in the 2020 election and the January 6th attack on the U.S. Capitol, have posed a new and urgent set of questions for American constitutional theory.

The first is constitutional diagnosis: What has gone wrong with our constitutional system?

The second is constitutional repair: what can we do in the short run to repair the damage that has already occurred to our democracy?

The third is constitutional reform: What reforms are necessary, either through constitutional amendment or sub-constitutional means, to strengthen our constitutional democracy for the long run?

The fourth is constitutional maintenance: What institutions can we shore up or create to maintain our constitutional democracy as it meets the challenges ahead?

These questions emerged for many different reasons: elite and popular polarization, the unravelling of the New Deal Settlement, increasing constitutional dysfunction, democratic backsliding, and accelerating constitutional rot.

My recent book, The Cycles of Constitutional Time, engages with these new sets of questions, and especially the question of constitutional diagnosis. Its use of cycles is heuristic. It focuses on the rise and fall of constitutional regimes, increasing and decreasing political polarization, and episodes of constitutional rot and renewal in order to understand the interaction of political agency and political structure that generates constitutional development over time.

The analysis in The Cycles of Constitutional Time ends in early 2020. The remainder of this essay discusses developments since the book was written: the old order's attempts to maintain political power through minority rule, and what it would take for a new constitutional regime to form. The essay briefly outlines three possible paths of future constitutional development.

The cycle of rot and renewal in American constitutional history is not an iron law of politics. Rather, it is a sign of the remarkable durability of our constitutional system -- that it keeps bouncing back from the forms of democratic decay that have done in many other republics before it.

Yet this durability comes with a price. It makes the system unwieldy and it prevents a great deal of potentially valuable change, including the very changes that might be necessary to reverse the growing decay in our institutions. A central question for constitutional theory is whether our system’s resistance to rapid change will finally be its undoing, or whether pent-up frustrations will produce mobilizations that successfully renew American democracy.

Highly recommended.  Download it while it's hot!

Kirschenfeld & Chew on Citation Stickiness

Aaron Kirschenfeld (University of North Carolina School of Law) & Alexa Chew (University of North Carolina School of Law) have posted Citation Stickiness, Computer-Assisted Legal Research, and the Universe of Thinkable Thoughts on SSRN.  Here is the abstract:

Legal information has been available in widespread digital format for more than forty years. In that time, law librarians have wondered whether this digital switch has changed how law students and lawyers conduct research and, if so, what those changes are. Does legal research differ when conducted in print sources rather than computerized sources? What influence did the systems of organizing law in the print era have on the digital systems that followed?

While we cannot put these questions to rest, we hope to shed some light on those difference by studying the work of lawyers and courts from the print era, the transition-to-digital era, and the digital era. Using a metric called “citation stickiness,” we studied how often parties to an appeal and the judges hearing that appeal agreed on the cases relevant to resolve the issues on appeal. This, we hoped, would also show whether there were perceptible differences in coherence and stability of the legal information landscape.

Citation stickiness works like this: a citation is “sticky” if it appears in at least one party’s brief and then again in the court opinion. In an initial study of 325 federal court cases from 2017, 49% of the 7,552 cases that were cited in the courts’ opinions had been cited by at least one party in a brief.1

This study considers cases from the United States Court of Appeals for the Fourth Circuit decided in 1957, 1987, and 2017. After examining the citations in the briefs and opinions in our sample of cases, we compare our findings from the pre-digital era and from the digital era. What we learned surprised us.

Miller & Harding on Fiduciaries & Trust

Paul B. Miller (Notre Dame Law School) & Matthew Harding (University of Melbourne - Law School) have posted Introduction to Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller and Matthew Harding, eds., Fiduciaries and Trust: Ethics, Politics, Economics and Law (Cambridge University Press, 2020)) on SSRN.  Here is the abstract:

This introduction to Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller & Matthew Harding, eds., Cambridge University Press, 2020) presents interdisciplinary perspectives on the significance of trust to fiduciary relationships and fiduciary law. It also briefly summarizes contributions to the volume. The volume includes chapters by the editors and Rob Atkinson, Brian Broughman, Evan Criddle, Paul Faulkner, Evan Fox-Decent, Thomas Gallanis, Andrew Gold, Kirsty Gover, Carolyn McLeod, James Penner, Elizabeth Pollman, Gerald Postema, Nicole Roughan, Emma Ryman, Gordon Smith, Lionel Smith, and Tess Wilkinson-Ryan.

Tsai on Constitutional Pragmatism

Robert L. Tsai (Boston University School of Law) has posted Legacies of Pragmatism (Drake Law Review, Vol. 69, No. 1, 2021
49 Pages Posted: 8 Jun 2021) on SSRN.  Here is the abstract:

Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I contend that pragmatism takes different forms in their theories: disciplinary substitution, decisional allocation, managed consequentialism, and materialist purposivism. Together, these represent the legacies of pragmatism. Third, after considering the views of Robin West and Roberto Unger, I offer some thoughts about what it will take to construct a form of pragmatism that restores the tradition's emphasis on humanistic governance.

Recommended.

Postema on Erosion of Constitutional Norms & Supreme Court Reform

Gerald J. Postema (University of North Carolina - Philosophy) has posted Constitutional Norms--Erosion, Sabotage and Response (Ratio Juris (forthcoming 2021)) on SSRN.  Her eis the abstract:

Respect for informal norms is essential to the integrity and effective functioning of constitutional democracies. Such norms have remarkable resilience but also are fragile in ways that we may not fully appreciate. Concern about sabotage of constitutional norms lies at the very heart of current widespread worries about the viability of democracy. This article seeks to explain the importance of constitutional norms and sources of their resilience and fragility, and to explore ways of responding to challenges that threaten their viability. After sketching a familiar and compelling conception of democracy and the rule of law, this article analyzes the nature of the social norms underlying democratic constitutions arguing that they are rooted in fundamentally discursive normative practices. It distinguishes three types of challenges to norms—those of norm infringers, those of norm entrepreneurs and those of norm saboteurs—and a repertoire of responses defenders can deploy against such breaches. The main principles of the analysis and articulated responses to norm sabotage are illustrated in an extended discussion of the recent highly partisan debate in the United States over reform of the Supreme Court.

Highly recommended.

Sacharoff on the Fourth Amendment Oath Requirement

Laurent Sacharoff (University of Arkansas School of Law) has posted The Broken Fourth Amendment Oath (Stanford Law Review, Vol. 74, 2022) on SSRN.  Here is the abstract:

The Fourth Amendment requires warrants be supported by “oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant based entirely on the third-hand account of an informant. But this article shows that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the “oath,” by its very nature, requires a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones v. United States that a warrant could rely upon “hearsay”—radically altering criminal investigations. But Jones rested entirely on policy preferences, ignoring the text, original understanding, and the rich contrary precedent.

This article argues we should return to the original meaning that the oath requirement bans third-hand accounts. Remarkably, this is the first comprehensive study to consider whether the “oath” requires personal knowledge.

Highly recommended.   Download it while it's hot!

Rabiyath on Absolute Property Rights in the Liberal State

Siddik Rabiyath (Department of Economics, University of Kerala; CESP, Jawaharlal Nehru University) has posted The Compatibility of Absolute Property Right in Liberal State: A Critique of Locke and Blackstone on SSRN.  Here is the abstract:

The modern conceptualisation of the absolute property right has been observed in the Two Treatises of Government by Locke. In the Commentaries of the Laws of England, Blackstone too had remarked on the characteristics of private property right. The paper critically appraises the compatibility of the establishment of private property right holding the characteristics of absoluteness. The paper follows a discursive method.

Davis & Pargendler on Contract Law and Inequality

Kevin E. Davis and Mariana Pargendler (New York University School of Law and Fundação Getulio Vargas Law School at São Paulo) have posted Contract Law and Inequality (107 Iowa Law Review (forthcoming), NYU Law and Economics Research Paper Forthcoming) on SSRN.  Here is the abstract:

Does contract law have any role to play in tackling economic inequality, one of the most pressing problems of our time? The orthodox answer to this question is no: contract law should promote autonomy, efficiency and/or justice in exchange, while distributive objectives should be dealt with exclusively through the fiscal system. Critics of this orthodoxy struggle with the prevailing understanding that contract law around the world has converged on doctrines that are insensitive to distributive considerations. This Article contributes to this debate by showing how courts in South Africa, Brazil and Colombia—prominent developing countries from different legal traditions—have recently diverged from orthodoxy to embrace the task of using contract law to address inequality. The emergence of contract law heterodoxy in developing countries draws attention to the existing, if more limited, instances of heterodoxy in the contract laws of the United States and Europe and to the stakes of contract law more generally. This analysis highlights how mounting inequality may increase the appeal of contract law heterodoxy and suggests that the present reign of contract law orthodoxy is neither universal nor inevitable.

Muller on Election Litigation

Derek T. Muller (University of Iowa - College of Law) has posted Reducing Election Litigation (Fordham Law Review, Forthcoming) on SSRN.  Here is the abstract:

Election litigation has exploded, and judges have increasingly been asked to evaluate ever-finer points of election administration. This Article posits some reasons that the judiciary has done so, and it offers potential ways to reduce election litigation.

Part I examines the increase in litigation and attributes at least some of that increase to several causes: increased campaign expenditures on litigation; increased partisanship in state legislatures yielded more contentious election laws; the decline of preclearance under the Voting Rights Act after Shelby County v. Holder; and Supreme Court extensions of the Anderson v. Celebrezze framework to broad areas of election law.

Undoubtedly, a part of the tale of litigation in 2020 arose from the arrival and spread of the novel coronavirus in the United States in 2020, which precipitated extensive actions (or attempted actions) to alter, postpone, or cancel previously-scheduled elections. But this Article sees a challenge—cash-laden litigants pressing judges to provide a preferred set of election practices, seizing on inconsistencies within the states or an absence of federal oversight to do so. Election law standards vary by federal circuit, and not as the result of state-driven legislative choices. States ex

ecutives enter into consent decrees with plaintiffs to effectively rewrite election codes without legislative input. Or state executives fail to appeal adverse findings in short-fuse litigation.

Part II suggests that less litigation is desirable. While acknowledging that litigation can advance important interests, it can undermine confidence in elections or add needless complexity to election law close in time to the election. It then offers what might be substantively-neutral solutions. The objective is to improve uniformity in legislation by "leveling up" decisions, which reduces friction in decision-making, reduces incentives to litigate, and increases consistency, both in terms of voter treatment and in terms of judicial precedent, across jurisdictions. Eliminating federal incentives for campaigns to raise money for litigation would compel campaigns to allocate resources for litigation like all other competing resources within the political campaign. These imperfect solutions may help reduce election litigation going forward.

Bradley on Conservative Constitutionalism and Originalism

Gerard V. Bradley (Notre Dame) is the author of Moral Truth and Constitutional Conservatism (81 La. L. Rev. 1317 (2021)), which is posted on the law review's website.  Here is the abstract:

Conservative constitutionalism is committed to “originalism,” that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however,  constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a mélange of mostly unsound arguments against the worst depredations of Casey’s Mystery Passage.

The reason for the methodological moral reticence is easy to see. It came into being as an understandable strategy to halt the Warren Court’s judicial activism. The conservative diagnosis was simple, and largely correct: judicial philosophizing not called for by the constitutional text or by a sound interpretation of it lay at the root of these judicial excesses. The treatment that conservatives prescribed hit the mark they sighted. Where resort to moral reasoning seemed inescapable, conservatives turned to some species of conventional moral belief, usually to what some group thinks, or once thought. Conservative constitutionalists have been committed to an “objectivity” wherein facts about what some believe to be morally sound folded into a regimen of restricted legal reasoning from text, history, structure, and precedent.

This conservative constitutionalism is well-suited to damage control whenever legal elites are in thrall to unsound moral and political philosophies. Conservative constitutionalism can even stymie for a time the introduction of new mistaken premises. But now, more than 50 years into the revolution, contemporary constitutional conservatism is incapable of wresting control of the law back from the regime-changing project of autonomous self-definition. We have passed a tipping point where damage control amounts to no more than a slow-walking surrender.

Conservative constitutionalists need only choose originalism, which will lead them to recognize the necessity for strategic resort to critically justified metaphysical and moral truths, as the Constitution directs. In fact, the contemporary judge can be faithful to the Founders only by sometimes relying on moral and metaphysical truths that lie beyond the Constitution. These truths include, crucially, answers to such foundational questions as: When do persons begin? What is religion? Which propositions about divine matters are answerable by use of unaided human reason? What is the meaning of that “marriage” that Supreme Court cases for over a century have spoken of, when it declares that everyone has a “fundamental right to marry”?

The truth about constitutional law is that, sometimes, the problem with an errant Supreme Court opinion is not that it relies on philosophy, but that it relies upon bad philosophy. Then the conscientious judge is obliged to replace bad philosophy with good philosophy. And the linchpin of that good philosophy is the “liberty,” not of self-creation ex nihilo, but of self constitution in a morally ordered universe.

Lister on Employer Control of Employee Behavior Outside of Working Hours

Matthew J. Lister (Deakin University School of Law) has posted That’s None of Your Business! On the Limits of Employer Control of Employee Behavior Outside of Working Hours (Canadian Journal of Law and Jurisprudence (forthcoming)) on SSRN.  Here is the abstract:

Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employee’s health-related behavior, and to monitor and control employee’s social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, Gerald Gaus and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employee’s outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees’ out of work behavior, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized.

Highly recommended.

Gervais on AI & IP

Daniel J. Gervais (Vanderbilt University - Law School) has posted The Human Cause on SSRN.  Here is the abstract:

This paper argues that, although AI machines are increasingly able to produce outputs that facially qualify for copyright or patent protection, such outputs should not be protected by law when they have no identifiable human cause, that is, when the autonomy of the machine is such that it breaks the causal link between the output and one or more human creators or inventors. As a species, normatively we should seek to preserve incentives for human creativity and inventiveness, as these have been hallmarks of the higher mental faculties often used to define humanness. The paper also discussed situation where human and machines work together and how courts can apply the proposed approach.

Recommended.

Wilson on Profiling BlaQueer People

T. Anansi Wilson (Mitchell Hamline School of Law; Department of African & African Diaspora Studies; UC Hastings College of the Law) has posted Sexual Profiling & BlaQueer Furtivity: BlaQueers On The Run on SSRN.  Here is the abstract:

“Sexual Profiling” explores the concept of BlaQueer Furtivity and argues that the scrutinization and profiling of BlaQueer people is the result of both intramural and state violence that collude, collide and compound with each other. Sexual profiling explores how BlaQueer people are rendered particularly furtive and in and outside of laws that are not merely “double violences” but instead unique, narrow affronts to BlaQueer being, freedom and self-actualization. Sexual Profiling: BlaQueers On The Run is primarily concerned with how intramural and state violence collude and collide to render BlaQueer people particularly furtive and uniquely scrutinized in and outside of Black spaces by the dynamic powers of state policing, deputizing whiteness and Black folks reenacting state and private violence. It does so by examining personal experiences, the movie "Moonlight," the phenomena of "walking while trans" laws and the life of William Dorssey Swan, for former slave and America's first drag queen, to mark the surveillence, racial-sexual terror and intramural and state sanctioned violence against BlaQueer people from slavery to the present.

Legal Theory Lexicon: The Rule of Law

Introduction

This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory.

What is the Rule of Law?

The ideal of the rule of law can be traced back at least as far as Aristotle and is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even some readical critics acknowledge that observance of the ideal could curb abuses of the powerless by the powerful.

What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure.

Dicey's Influential Formulation

Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:

(1) the supremacy of regular law as opposed to arbitrary power;
(2) equality before the law of all persons and classes, including government officials; and,
(3) the incorporation of constitutional law as a binding part of the ordinary law of the land.

Rawls on the Rule of Law

A contemporary elaboration of the ideal of the rule of law is provided by John Rawls. He defines the rule of law as "the regular, impartial, and in this sense fair" administration of "public rules." In schematic form and with some alterations, Rawls offered the following conception of the rule of law:

1. The Requirement that Compliance Be Possible. The legal system should reflect the precept that ought implies can.

a. The actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.
b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate.
c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.

2. The Requirement of Regularity. The legal system should reflect the precept that similar cases should be treated similarly.

a. Judges must justify the distinctions they make between persons by reference to the relevant legal rules and principles.
b. The requirement of consistency should hold for the interpretation of all rules.

3. The Requirement of Publicity. The legal system should reflect the precept that the laws should be public.

a. The laws should be known and expressly promulgated.
b. The meaning of the laws should be clearly defined.

4. The Requirement of Generality. Statutes and other legal rules should be general in statement and should not be aimed at particular individuals.
5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.

a. A legal system ought to make provision for orderly and public trials and hearings.
b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry.
c. A legal system ought to provide a process reasonably designed to ascertain the truth.
d. Judges should be independent and impartial, and no person should judge her own case.

Absent from Rawls's formulation is the notion that the rule of law requires that the government and government officials be subject to the law. Thus, a sixth aspect of the rule of law might be added to Rawls' formulation as follows:

6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.

a. Government officials should not be above the law.
b. The legality of government action should be subject to test by independent courts of law.

More can be said about the content of the ideal of the rule of law, but this brief exposition provides sufficient clarity for for this brief introduction.

The Values Served by the Rule of Law

What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.

Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulwark against tyranny, chaos, and injustice.

The Rule of Law and Bad Law

One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law.

Conclusion

Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when it's introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves.

Related Lexicon Entries

• Legal Theory Lexicon 023: Procedural Justice

Bibliography

• Albert Dicey, The Law of the Constitution 194 (London: MacMillan, 9th ed., 1950)
• Richard H. Fallon, Jr., The Rule of Law" as a Concept in Constitutional Discourse, 97 Columbia Law Review 1-56 (1997)
• Joseph Raz, The Rule of Law and its Virtue, 93 LQR 195-202 ((1997) & reprinted in The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979)
• Judith N. Shklar (1987), "Political Theory and the Rule of Law", in Hutchinson and Monahan (eds.) The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1.
• Lawrence B. Solum, Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)
• Tamanaha, Brian. On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004).
• Jeremy Waldron (2002), Is the Rule of Law an Essentially Contested Concept (in Florida)?, Law & Philosophy, vol. 21/2, 2002.

(Last revised on June 6, 2021.)

Legal Theory Bookworm: "International Law and the Private Corporation 1886-1981" by Lustig

The Legal Theory Bookworm recommends Veiled Power: International Law and the Private Corporation 1886-1981 by Doreen Lustig.  Here is a description:

Veiled Power conducts a thorough historical study of the relationship between international law and business corporations. It chronicles the emergence of the contemporary legal architecture for corporations in international law between 1886 and 1981. Doreen Lustig traces the relationship between two legal 'veils': the sovereign veil of the state and the corporate veil of the company. The interplay between these two veils constitutes the conceptual framework this book offers for the legal analysis of corporations in international law.

By weaving together five in-depth case studies - Firestone in Liberia, the Industrialist Trials at Nuremberg, the Anglo-Iranian Oil Company, Barcelona Traction and the emergence of the international investment law regime - a variety of contexts are covered, including international criminal law, human rights, natural resources, and the multinational corporation as a subject of regulatory concern. Together, these case studies offer a multifaceted account of the history of corporations in international law over time.

The book seeks to demonstrate the facilitative role of international law in shaping and limiting the scope of responsibility of the private business corporation from the late-nineteenth century and throughout the twentieth century. Ultimately, Lustig suggests that, contrary to the prevailing belief that international law failed to adequately regulate private corporations, there is a history of close engagement between the two that allowed corporations to exert influence under a variety of legal regimes while obscuring their agency.

And from the reviews:

"... Lustig has produced a compelling, and well-documented, narrative. Scholars of international law as well as legal historians and legal theorists will find much to their interest in this monograph, which deserves to be read widely." -- Filip Batsel�, PhD candidate, Institute for Legal History & Rolin-Jaequemyns International Law Institute, Ghent, Leiden Journal of International Law

"Lustig's work is an excellent piece of scholarship providing much information regarding the direct paradigms that shape multinational corporations in international law and is a useful reference tool for those who are working on the history of international economic law." -- P. Sean Morris, Research Scholar, Faculty of Law, University of Helsinki, The Asian Journal of International Law

Download of the Week: "Percolation's Value" by Davis & Coenen

The Download of the Week is Percolation's Value by Seth Davis & Michael Coenen.  Here is the abstract:

Few legal metaphors enjoy more prominence than that of a legal issue “percolating” through the lower courts until the Supreme Court is ready to resolve it. Just two Terms ago, for example, the Court declined to answer a question presented in Box v. Planned Parenthood of Indiana & Kentucky, Inc., reasoning that further percolation would aid it in developing the scope of constitutional protections for a woman’s right to choose. In Trump v. Hawaii, Justice Clarence Thomas wrote to express dismay that nationwide injunctions are “preventing legal questions from percolating through the federal courts.” Similarly, Justice Neil Gorsuch wrote in Department of Homeland Security v. New York that nationwide relief undermines “the airing of competing views that aids [the] Court’s own decisionmaking process,” a view shared by many critics of the lower courts’ use of nationwide injunctions in recent years. A common presumption is that percolation is valuable.

This Article questions that presumption. Its thesis is that, at best, percolation’s benefits will outweigh its costs under limited and contingent conditions—conditions not likely to replicate themselves across a broad range of cases. In advancing that thesis, the Article makes four contributions to the literature on federal court practice and procedure. First, as a historical matter, it shows that interest in percolation’s value is a relative latecomer to the jurisprudential scene. Second, as an analytical matter, it distinguishes between informational and institutional accounts of percolation’s value. Informational accounts highlight percolation’s potential to provide useful information to enhance the Court’s decisionmaking as to a particular legal issue. Institutional accounts, by contrast, see the percolation process as beneficial to the effective functioning of the federal court system as a whole. With this important but largely unrecognized distinction in mind, the Article makes a third contribution by showing that both accounts are subject to significant limitations. In particular, both the informational and institutional accounts of percolation’s value are highly issue-dependent and context-specific. Therefore, as a prescriptive matter, this Article makes a fourth contribution by highlighting a set of practices that the federal courts or Congress might adopt in response to the limited nature
of percolation’s informational and institutional benefits.

Highly recommended.

Maltz on Casey & Abortion Rights

Earl M. Maltz (Rutgers, The State University of New Jersey - Rutgers Law School) has posted We Have Been Here Before: Planned Parenthood of Southeastern Pennsylvania V. Casey and the Survival of Abortion Rights on SSRN.  Here is the abstract:

Nearly half a century after the landmark decision in Roe v. Wade, recent events have given supporters of the pro-choice position good reason to fear that the Supreme Court is likely to soon abandon its support for abortion rights. Although the Court recently struck down an anti-abortion statute in June Medical Services v. Russo, the balance of power in that case was held by Chief Justice John Roberts, whose opinion indicated that, in the future, he was likely to allow states to impose a wide variety of restrictions on access to abortions. Moreover, the pro-choice forces recently lost one of their staunchest allies when Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, whose nomination was roundly cheered by those who argue that Roe should be overruled. Thus, many observers believe that the Court is likely to use Dobbs v. Jackson’s Women’s Health Organization as a vehicle to eliminate or significantly undermine constitutional constraints on the ability of state governments to limit access to abortions.

However, we have been here before. In the decade between 1981 and 1991, Republican presidents who were openly critical of the decision in Roe had the opportunity to nominate five of the nine members of the Supreme Court. Moreover, during this period, the issue of abortion played an increasingly important role in the selection of those justices. Thus, by the early 1990s, most commentators believed that the anti-abortion forces were on the verge of claiming near-total victory in their campaign against Roe and its progeny. But despite the expectations of most commentators, in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a majority of the justices reaffirmed their support for the view that the Constitution protects the right of a woman to terminate her pregnancy without undue interference from the government, and thereby created a regime that has endured for almost three decades. This article will describe the sequence of events that led to the decision in Casey and culminated in the failure of the assault on abortion rights.

Highly recommended.