Legal Theory Blog

Wright on Haack on Legal Proof

Richard W. Wright (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Legal Proof: Foundherentism and Statistical Evidence (Essays in Honor of Susan Haack (Marcel Pons 2021/2022)) on SSRN.  Here is the abstract:

This paper is one of several papers initially presented at a conference in March 2020 at the University of Girona, in Spain, in honor of Susan Haack, which will be published after translation into Spanish by Marcel Pons. This paper discusses (i) Haack's important work on proving causation or any other alleged facts, which focuses on case law and academic doctrine in the USA, and (ii) recent important work on the standard of proof in civil cases in Europe collected in Standards of Proof in Europe (Lubos Tichy ed., Mohr Siebeck, 2019). The standard of proof for civil cases in civil law jurisdictions is generally considered to be much higher than the standard of proof stated in common law jurisdictions. In both types of jurisdiction, and especially in civil law jurisdictions, the standard of proof in civil cases generally requires the formation of an at least minimal belief in the truth of the relevant facts, based on the concrete facts in the particular case. Statistical frequencies, no matter how high, will not suffice.

Waldron on Duties

Jeremy Waldron (New York University School of Law) has posted On Duty on SSRN.  Here is the abstract:

Duties are normally understood prescriptively, in terms of the particular action a given duty requires. This essay, however, considers an alternative understanding. Duties may be understood by reference to situations for which the duty-bearer takes responsibility. (Not responsibility in a causal sense, but responsibility in a forward-looking sense--like being "on duty"). The paper explores the difference between these two understandings of duty and the attractions of the situational version. One attractive feature of the situational understanding is that it is open-ended (rather than settled and determinate) in the sense it conveys of what might be expected of the duty-bearer.

Highly recommended.

Ronen on the Ban on Family Visits to Prisoners in Israel

Yael Ronen (Hebrew University of Jerusalem - Hebrew University, Faculty of Law, Minerva Center for Human Rights; Academic Center for Science and Law, Hod Hasharon) has posted On Prisoners, Family Rights and Collective Punishment: The Namnam Case (2019) ([2021] International Review of the Red Cross) on SSRN.  Here is the abstract:

This article examines the 2019 decision by the Supreme Court of Israel (‘the Court’) in the Namnam case, upholding the ban on family visits to Gaza prisoners incarcerated in Israel and affiliated with Hamas. This measure was adopted as part of Israel’s attempt to pressure Hamas into an exchange of Palestinian detainees and prisoners against missing Israeli civilians and the bodies of Israeli soldiers, apparently being held by Hamas in Gaza. The Court examined the measure primarily in light of Israeli administrative law, and held that it had no grounds to intervene. It held that an analysis under international law would have yielded the same result.

This article examines the decision of the Court in light of the applicable international law. It considers the Court’s decision in terms of the permissible restrictions on the right to family life and draws on the Court’s reasoning for an in-depth analysis of various unarticulated aspects of the prohibition on collective punishment. The article concludes that an international human rights law (IHRL) analysis might have led to a different outcome, and that had the Court applied the prohibition on collective punishment properly, it would have had to declare the measure unlawful. The article then places the decision in the broader context of the Court’s engagement with international law in disputes relating to Palestinians residing in the West Bank and Gaza.

Ahmed on a Delegation Theory of Judicial Review

Farrah Ahmed (University of Melbourne - Law School) has posted The Delegation Theory of Judicial Review (Modern Law Review, Forthcoming) on SSRN.  Here is the abstract:

This paper offers an interpretive theory which aims to make sense of judicial review doctrine in light of its underlying rationale. The idea that administrators are delegates of Parliament or the Crown lies at the heart of this theory. The paper argues that the best internal rationale for judicial review doctrine is that it holds administrators to their moral duties qua delegates of Parliament or the Crown. This rationale closely fits legal doctrine, including the grounds of review and the scope of review; it reveals the underlying coherence of the law; it shows how the law is supported by some moral reasons; and it closely reflects judicial reasoning. The delegation theory is valuable for normative, predictive, reformatory and pedagogical reasons. It can provide guidance to judges, help predict how they will decide, help assess the law, help evaluate reform proposals and enhance understanding of judicial review amongst administrators, legal practitioners and students.

Chin, Edmond, & Roberts on Exclusion of Evidence for Prejudice

Jason Chin (Sydney Law School), Gary Edmond (University of New South Wales (UNSW) - Faculty of Law), & Andrew J. Roberts (Melbourne Law School) have posted Simply Unconvincing: The High Court on Probative Value and Reliability in the Uniform Evidence Law (Federal Law Review, Forthcoming) on SSRN.  Here is the abstract:

Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudice has long been a fundamental safeguard against wrongful convictions. In 2016, IMM v The Queen curtailed that safeguard by holding that trial judges should assess probative value on the assumption that the evidence is reliable and credible. The IMM majority placed emphasis on the capacity of the evidence. In doing so, it provided a mysterious qualification: some evidence may lack probative value not because it is unreliable, but because it is ‘simply unconvincing’. The majority illustrated unconvincingness with the example of an unreliable eyewitness identification. Courts and legal scholars criticised the majority’s judgment for its harmful implications and for its apparent incoherence. From a review of almost four years of post-IMM jurisprudence and deeper exploration into one particular case, we find that ‘simply unconvincing’ has accentuated the confusion and inconsistency in Australian evidence jurisprudence.

Muller on Brnovich v. DNC

Derek T. Muller (University of Iowa - College of Law) has posted Brnovich v. DNC: Election Litigation Migrates from Federal Courts to the Political Process (2020-2021 Cato Sup. Ct. Rev. 217) on SSRN.  Here is the abstract:

We are in a time of public skepticism over elections. The losing side doubts the fairness of the outcome, attributing the loss to suppression, fraud, foreign influence, or late-breaking changes to laws— some “true reason” outside the legitimate political process why a preferred candidate failed. The winning side is a sour contest or a sore loser away from doubting the legitimacy of the election.

It’s hard to tell whether the sharp rise in litigation over elections is the cause or the effect. Major political parties are spending more money than ever on lawyers and litigation in federal elections, from $7.5 million in 2012 to more than $66 million in 2020. Seemingly minor changes to schedules, deadlines, or how forms are mailed immediately prompts the filing of a legal complaint. Every corner of election administration is up for a lawsuit as major political parties vie for the smallest competitive advantage—actual or perceived.

While Brnovich v. Democratic National Committee was a case about the Voting Rights Act, the hallmark voting legislation of the civil-rights era, it began as one of these efforts by a political party to litigate relatively minor issues of state election administration. A district court rejected the lawsuit. But on appeal, the case took on outsized importance as an appellate court found that Arizona enacted a statute with racially discriminatory intent, opening the door to judicial oversight of newly enacted election rules. That caught the attention of the Supreme Court, which in turn weighed in for the first time on an entire class of claims under the Voting Rights Act.

The decision in Brnovich likely limits opportunities for plaintiffs litigating certain classes of election-law cases, at least compared to the baseline of what some federal courts had permitted in the last few years. But it’s also the latest in a 20-year string of Supreme Court cases emphasizing that the political process, not the federal courts, remains the principal place to address most election-law issues. Litigation continues to rise even as plaintiffs are increasingly likely to find themselves on the losing side of the case. And it remains unclear whether public confidence, through litigation or otherwise, will rise anytime soon.

Snyder on Contracting for Process

David V. Snyder (Washington College of Law, American University) has posted Contracting for Process (Law and Contemporary Problems, Forthcoming) on SSRN.  Here is the abstract:

This paper introduces the concept of contracting for process and considers when it is likely to be the best contract design. Some characteristics of contracting for process suit it particularly well to situations of uncertainty, including the radical uncertainty that results from fundamental disruptions such as covid-19. The concept introduced here, however, is not limited to contexts of uncertainty or complexity; it can be used to achieve a variety of objectives and to solve a number of problems. Notably, and perhaps surprisingly, the concept is not limited or even necessarily associated with relational contracting, quasi-integrated contract manufacturing, managerial contracting, contracts for innovation, or the like. Contracting for process is well suited to many discrete contracting contexts and is indeed in widespread use, although we fail to notice. This paper aims to observe a contracting practice that has not been articulated, to distinguish it from contract designs and theories of contract that obscure contracts for process, and to assess how contracting for process is better or worse suited to different parties, transactions, and contexts, particularly in times of crisis.

Borchers, Freer, & Arthur on Ford Motor Company v. Montana Eighth Judicial District Court

Patrick Joseph Borchers (Creighton University School of Law), Richard D. Freer (Emory University School of Law), & Thomas C.  Arthur (Emory University School of Law) have posted Ford Motor Company v. Montana Eighth Judicial District Court: Lots of Questions, Some Answers (Emory Law Journal Online, Vol. 71, No. 1, 2021) on SSRN.  Here is the abstract:

In Ford Motor Company v. Montana Eighth Judicial District Court, the Supreme Court handed down its seventh personal jurisdiction decision in the last ten years. Ford—involving two consolidated state-court products liability suits alleging defects in the defendants’ cars that injured forum-state residents in their home states—is the only case in the Supreme Court’s decade-long spate of jurisdictional decisions to find the minimum contacts test satisfied. In this Article, we examine all three opinions of the case. Ford is a welcome return to serious consideration of the fairness of the assertion of jurisdiction. Unlike its six immediate predecessors, Ford considers not only the burden on the defendant in asserting jurisdiction, but also the unfairness to the plaintiff if the Court were to not allow jurisdiction. That said, Ford leaves open many important questions, which we explore. The consequences of the majority’s splitting the “arise out of or relate to” test for specific jurisdiction are not entirely clear. It remains an open question as to under what circumstances a non-causal relationship will suffice and when the presumably more demanding “arise out of” test must be met. We explore several hypothetical factual scenarios in which jurisdiction would depend on which formulation of relatedness is employed.

Highly recommended.

 

Parchomovsky & Stein on Preliminary Damages

Gideon Parchomovsky (University of Pennsylvania Carey Law School) & Alex Stein (Israel Supreme Court) have posted Preliminary Damages (Vanderbilt Law Review, Vol. 75, 2022) on SSRN.  Here is the abstract:

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Article, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing altogether or accept unfavorable and unjust settlements to alleviate their financial plight. Aware of this reality, corporate defendants have an inherent incentive to break the law and then strategically drag on trials in order to force victims who lack the financial wherewithal into unfair settlements. As we show, preliminary damage awards will rectify these distortions. By providing poor victims the financial oxygen they badly need and by eliminating the incentive of rich wrongdoers to drag litigation unnecessarily, preliminary damage awards will not only level the litigation playfield but will also free up considerable judicial resources.

Highly recommended.

Legal Theory Lexicon: Holism

Introduction

Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the modern legal theorist who is most associated with legal holism was Ronald Dworkin.

And before we get on with it, a brief digression on the origins of the phrase. The idea of the law as a seamless web seems to be derived from a related idea--that history is a seamless web--found in the writings of Frederic Maitland: "Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web." Frederic William Maitland, A Prologue to a History of English Law, 14 L.Quarterly Rev. 13 (1898) (online version).

Ideas about legal holism may also have been influenced by philosophical ideas about holism and in particular "meaning holism"--a notion that is strongly associated with the philosopher, Willard Van Orman Quine.

The Law is a Seamless Web

The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.

Coherence and Holism

The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.

Coherence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”

Herculean Holism

Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.

Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.

Holism versus Particularism

So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.

At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).  Legal particularism may be related to the analogous view in moral theory and the idea of the "priority of the particular."

Is Holism Normative, Descriptive, or Interpretive?

Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.

Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.

Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.

Conclusion

The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.

Related Entries

• Legal Theory Lexicon 059: The Law Is A Seamless Web
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography

• Scott Brewer, Figuring The Law: Holism and Tropological Inference in Legal Interpretation, 97 Yale L.J. 823 (1988).
• Andrei Marmor, Coherence, Holism, and Interpretation: The Epistemic Foundations of Dworkin's Legal Theory  10 Law and Philosophy 383-412 (1991).
• Frederic William Maitland, A Prologue to a History of English Law, 14 L.Querterly Rev. 13 (1898) (online version).
• Henry Jackman, Meaning Holism, Stanford Encyclopedia of Philosophy (2014).

(Last revised on September 25, 2021.)

Legal Theory Bookworm: "Purchasing Submission"by Hamburger

The Legal Theory Bookworm recommends Purchasing Submission: Conditions, Power, and Freedom by Philip Hamburger.  Here is a description:

The federal government increasingly regulates by using money and other benefits to induce private parties and states to submit to its conditions. It thereby enjoys a formidable power, which sidesteps a wide range of constitutional and political limits.

Conditions are conventionally understood as a somewhat technical problem of “unconstitutional conditions”―those that threaten constitutional rights―but at stake is something much broader and more interesting. With a growing ability to offer vast sums of money and invaluable privileges such as licenses and reduced sentences, the federal government increasingly regulates by placing conditions on its generosity. In this way, it departs not only from the Constitution’s rights but also from its avenues of binding power, thereby securing submission to conditions that regulate, that defeat state laws, that commandeer and reconfigure state governments, that extort, and even that turn private and state institutions into regulatory agents.

The problem is expansive, including almost the full range of governance. Conditions need to be recognized as a new mode of power―an irregular pathway―by which government induces Americans to submit to a wide range of unconstitutional arrangements.

Purchasing Submission is the first book to recognize this problem. It explores the danger in depth and suggests how it can be redressed with familiar and practicable legal tools.

And from the reviews:

“Professor Hamburger takes on the whole of government by challenging regulation effected by bureaucratic bribery, extortion, and barratry. He traces actions of federal, state, local, and private agents that procure what passes as the ‘consent’ of the governed, to submission and further crimping of our liberties. A powerful analytical framework by which to combat encroachment on our rights by government in all its forms, and by government’s private proxies.”―Judge Carlos Bea, U.S. Court of Appeals for the Ninth Circuit

“To the venerable doctrine of ‘unconstitutional conditions’―the deceptively simple idea that government may not do indirectly what it may not do directly―Philip Hamburger has brought his great talents as a political theorist, law professor, and civil libertarian. Following his pathbreaking earlier work on the perils of government by the unelected agents of the administrative state, he now contributes deep insight and learning to the phenomenon of legal power exercised by the richest potentate in America: the federal government. An important and welcome contribution to the history and politics of the modern American state.”―Judge José A. Cabranes, U.S. Court of Appeals for the Second Circuit

“This book brings to light, in one place, the myriad ways in which the federal and state governments purchase our submission to conditions―some of them unconstitutional―without going through the regular legal order of legislation or even administrative rulemaking. From the licensing of broadcasters to the ‘chemical castration’ of sex offenders, to surprise inspections of AFDC households, transactional government buys our consent to what the author rightly calls ‘an alternative mode of governance.’”―Judge Douglas H. Ginsburg, U.S. Court of Appeals for the D.C. Circuit

“Having already taught us how administrative power has displaced the legislative and judicial processes for enacting laws and adjudicating cases, Professor Hamburger now explains how government’s placement of conditions on spending and other government benefits also displaces constitutional processes and risks undermining our constitutional liberties. It is not a happy book, but one that is essential reading. Eye-opening.”―Michael Rappaport, coauthor of Originalism and the Good Constitution

“This important book lays bare a critical threat to our liberty and basic structure of government, explaining how our own tax dollars are being used to purchase consent and to obviate the need for the government to regulate through more accountable channels. Equally important, it offers concrete suggestions to retool constitutional doctrine to meet the realities of how we are now governed.”―Paul Clement, 43rd Solicitor General of the United States

Download of the Week: "The Irrepressible Myth of Jacobson v. Massachusetts" by Blackman

The Download of the Week is The Irrepressible Myth of Jacobson v. Massachusetts by Josh Blackman.  Here is the abstract:

During the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent Justices established the irrepressible myth of Jacobson v. Massachusetts. This myth has four levels.

The first level was layered in Buck v. Bell (1927). Justice Holmes recast Jacobson’s limited holding to support forcible intrusions onto bodily autonomy. The Cambridge law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime. The second level was layered in 1963. In Sherbert v. Verner, Justice Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises. The third level was layered in 1973. In Roe v. Wade, Justice Blackmun incorporated Jacobson into the Court’s modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions. The fourth layer is of recent vintage. In South Bay Pentecostal Church v. Newsom, Chief Justice Roberts’s “superprecedent” suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges. This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine, and did not rely on Jacobson. But Jacobson stands ready to open up an escape hatch from the Constitution during the next crisis. The Supreme Court should restore Jacobson to its original meaning, and permanently seal that escape hatch.

This article, written in the midst of the pandemic, will revisit, repudiate, and replace the irrepressible myth of Jacobson v. Massachusetts.

Highly recommended.

Mullins on Law's Claim to Authority

Rob Mullins (The University of Queensland - T.C. Beirne School of Law) has posted Presupposing Legal Authority (Forthcoming, Oxford Journal Of Legal Studies) on SSRN.  Here is the abstract:

The thesis that law necessarily claims authority is popular amongst legal philosophers. Some distinguished legal philosophers, including the late John Gardner, Joseph Raz and Scott Shapiro, have suggested that support for this thesis is found in legal officials’ use of deontic language. This article begins by considering the merits of this suggestion. I discuss two unpromising arguments for the claim thesis based on the use of deontic language in law. I then suggest that a more plausible basis for the claim thesis lies in the felicity conditions of the speech acts that legal officials perform. In the absence of an explicit claim to authority, legal officials make a presupposition to authority over their subjects. The presupposition arises from interaction between the felicity conditions of legal speech acts and basic norms of cooperative communication. I consider some implications of this conclusion for our understanding of legal authority.

Weinrib on the Abrams Dissent

Laura Weinrib (Harvard University - Harvard Law School) has posted Power and Premises: The Contested Meanings of the Abrams Dissent (Seton Hall Law Review, Vol. 51, No. 1, 2020) on SSRN.  Here is the abstract:

This essay, for a symposium on the centennial of the Supreme Court’s decision in Abrams v. United States, suggests that celebration of the Abrams dissent as the origin of the modern First Amendment rests on a misconception. In the months after Abrams was decided, hardly anyone imagined the dissent as a harbinger of aggressive First Amendment review of convictions for seditious activity, let alone judicial invalidation of democratically enacted laws. Instead, the opinion exacerbated progressive concerns about juror bias, disproportionate sentencing, and weak or vindictive judges. Advocates invoked Abrams as a cautionary tale about the susceptibility of illiberal laws to misapplication and abuse, and they held out treatment of the defendants as evidence of longstanding complaints about police brutality and inhumane prison conditions in a period of profound economic inequality, labor unrest, hostility to immigration, and the uncertainty of a global pandemic. They did not, however, cast the opinion as a justification for judicial review. On the contrary, the Abrams dissent generated support for progressive efforts to limit the power of the courts.

Kakade on Environmental Enforceability

Seema M. Kakade (University of Maryland Francis King Carey School of Law) has posted Environmental Enforceability (NYU Environmental Law Journal, Forthcoming) on SSRN.  Here is the abstract:

There are great expectations for a resurgence in federal environmental enforcement in a Biden-led federal government. Indeed, federal environmental enforcement suffered serious blows during the Trump Administration, particularly at the Environmental Protection Agency (EPA), including large cuts in the budget for enforcement and reversals of key enforcement policies. Yet, while important to repair the damage, truly strengthening federal environmental enforcement will require more. This Article highlights the need for greater attention to the multiple hurdles that plague environmental enforcement. In doing so it makes three contributions to the literature. First, it asserts that even though environmental statutes, regulations, and guidance documents often contain “enforceable” as an explicit term, in practice the term lacks scope and definition, making the actual enforceability of regulations dubious. Second, it demonstrates the difficulties with actual enforceability by examining key hurdles that become legal defenses for corporate and government defendants in environmental enforcement matters regarding regulatory exceptions, evidentiary standards, and the preemption and preclusion doctrines. Third, it recommends that drafters of environmental laws and regulations consider actual enforceability by considering, within the documents they are drafting, the likely hurdles for enforcers after the law or regulation becomes effective. Although hurdles in environmental enforcement are important for regulatory flexibility, judicial expediency, and other normative values, they often result in a tradeoff for achieving enforceability of environmental laws and regulations. Grappling with such tradeoffs, within the law or regulation itself, is essential for meeting the expectations for enforcement held by regulated entities, researchers, environmental advocates, and most of all, local communities. After all, as noted in a March 2021 Grist news article, “laws are only as good as their enforcement.”

Bernick on the Rule of Law & Radical Change

Evan D. Bernick (Northern Illinois University - College of Law) has posted Do Hobocops Dream of the Rule of Law? on SSRN.  Here is the abstract:

There is little law and even less law enforcement in Martinaise—a fictional district of a fictional city on a fictional archipelago in which a fictional video game, Disco Elysium, is set. This Essay is about what Disco Elyisum’s narrative and gameplay reveal about the nature of law, the effects of its absence, and the challenges associated with transforming an illegitimate legal system.

This is not the first essay to consider what a video game has to say about jurisprudence. But I break new ground by bringing video-game-inspired insights about law to bear on a particular criminal legal system: that of the United States. Specifically, I compare and contrast the limitations of law in Disco Elysium and the game’s pessimism about the prospects of systemic change within its fictional world, on the one hand; and the limitations of the U.S. criminal legal system and ongoing, radically optimistic efforts to transform—even abolish—the latter, on the other. Like that of Martinaise, the criminal legal system of the U.S. often fails to meaningfully constrain state power and suffers from crippling democratic deficits. But the U.S. is the site of emergent social movements that are committed to participatory and inclusive democracy, and is structured by a constitution that has inspired and empowered people to contest state power throughout U.S. history. In its very pessimism about the prospects of legal transformation in its own world, Disco Elysium encourages optimism about radical change in ours.

Leila on Gender-Based Discrimination in Egyptian Judicial Appointments

Mohamed N. Leila (Mansoura University, Faculty of Law; The American University in Cairo - Department of Law) has posted Gender-Based Discrimination in Egyptian Judicial Appointments: Was the Shift from Gender-Neutral to Gender-Conscious Provisions Inevitable?.  Here is the abstract:

Gender equality has been one of the most controversial issues in the Egyptian society. Despite its signature and ratification of the convention on the Elimination of all forms of Discrimination against women in September 1981, Egypt has blatantly been discriminating against women in many areas, one of which is judicial appointments. Thus, women are still completely banned from joining two judicial bodies, the Council of State and the Public Prosecution despite the absence of any legal provision that prohibits women from being judges. Accordingly, and for the first time in the Egyptian Constitutional history, a constitutional provision has been introduced that explicitly addresses discrimination against women in judicial appointments, in an attempt to tackle such gender-based discrimination. Article 11 of 2014 constitution expressly states that "The state... grants women the right to hold public posts and high management posts in the state, and to appointment in judicial bodies and entities without discrimination. " However, such a provision has not yet been enforced.

In this paper, the following research questions are addressed: Why have Women been denied their intrinsic right to be appointed as judges? Was the gender-conscious constitutional provision inevitable?

Does this provision humiliate women by considering them as second-degree citizens who need to be protected by exceptional constitutional provisions?

In this paper, I argue that the non-appointment of female judges is the result of the patriarchal nature of the Egyptian society and, in turn, its Judiciary and that religion is just a pretext used by anti-feminists to justify their stance. Also, I believe that Feminist movement is to be blamed for the failure in raising awareness about basic women rights. Accordingly, I believe that the shift from gender-blindness to gender-conscious provisions was of utmost importance as a first step to tackle this deep-rooted problem and that these provisions are justifiable in the Egyptian context despite playing a role in entrenching the conception that women are a marginalized group.

Mariner on COVID-19 & Judicial Review

Wendy K. Mariner (Boston University School of Public Health; Boston University - Boston University School of Law) has posted Shifting Standards of Judicial Review during the Coronavirus Pandemic in the United States (22 (6) German Law Journal 1039-1059 (2021)) on SSRN.  Here is the abstract:

Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.

Blackman on Jacobson v. Massachusetts

Josh Blackman (South Texas College of Law Houston) has posted The Irrepressible Myth of Jacobson v. Massachusetts on SSRN.  Here is the abstract:

During the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent Justices established the irrepressible myth of Jacobson v. Massachusetts. This myth has four levels.

The first level was layered in Buck v. Bell (1927). Justice Holmes recast Jacobson’s limited holding to support forcible intrusions onto bodily autonomy. The Cambridge law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime. The second level was layered in 1963. In Sherbert v. Verner, Justice Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises. The third level was layered in 1973. In Roe v. Wade, Justice Blackmun incorporated Jacobson into the Court’s modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions. The fourth layer is of recent vintage. In South Bay Pentecostal Church v. Newsom, Chief Justice Roberts’s “superprecedent” suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges. This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine, and did not rely on Jacobson. But Jacobson stands ready to open up an escape hatch from the Constitution during the next crisis. The Supreme Court should restore Jacobson to its original meaning, and permanently seal that escape hatch.

This article, written in the midst of the pandemic, will revisit, repudiate, and replace the irrepressible myth of Jacobson v. Massachusetts.

Highly recommended.

Palmer on Public Law & Democratic Decline

Sir Geoffrey Palmer QC (Victoria University of Wellington - Faculty of Law) has posted Rethinking Public Law in a Time of Democratic Decline ((2021) 52 VUWLR 413) on SSRN.  Here is the abstract:

The 13 separate segments of this article are designed to explore the consequences for New Zealand public law of the global decline of democracy in many parts of the world, although not in New Zealand. The trend towards autocracy is evident in many countries and has been increasing. There was a time when democracy was thought to be inevitable, but that time has passed. Since New Zealand is a small and open society, democratic rot and decline could set in, as it has in other democracies. In order to combat these tendencies, it is necessary to think about the implications of these developments for teaching public law and for the need to bolster education in citizenship, so people can better understand the advantages of democracy, participate in it and feel a commitment to it. Many New Zealanders not born here may not understand the culture, may not have English as their first language and may be discouraged from engagement. New Zealand is increasingly diverse.

The article explores the recent history of the United States and to a lesser extent, the United Kingdom, to discern the tendencies at work in those democracies. Returning to the fundamental elements of public law, it is suggested that the analysis begins with the nature and character of the state, followed by international law. Then it is argued it is necessary in the New Zealand context to examine the situation of Māori, Te Tiriti o Waitangi, the activities of the settler governments and the remaining consequences of colonisation. There appears at this time to be an opportunity to more significantly recognise indigenous Māori culture. From there, an examination of some important principles of political philosophy is provided. This leads to a summary of the main types of government that are available for any state. Then are set out the main political ideologies that often impel political actors. The changes in democratic practice that have resulted from the digital revolution are then examined with the effects upon political parties and how they have changed New Zealand. The manner in which public opinion can be manipulated and the need to become literate in politics and political practice is emphasised. The article concludes with a discussion of public law as an autonomous discipline and a final conclusion about what all this means for New Zealand. In the mind of the author, after a long career in public law and politics, these separate elements combine into a message about the need for democratic refurbishment and future vigilance in New Zealand.

Park on Race & Property Law

K-Sue Park (Georgetown University Law Center) has posted Race and Property Law (The Oxford Handbook of Race and Law in the United States (Devon Carbado, Khiara Bridges & Emily Houh eds., Oxford University Press), Forthcoming, (2021)) on SSRN.  Here is the abstract:

This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies and early Republic, both of which acquired value and status as property through white ownership and control– namely, enclosed land and enslaved human beings. Second, it addresses the significant shift in the way that race produced property values after the abolition of slavery, and how the anti-blackness entrenched by the slave trade spurred and organized resistance to Black landownership and property rights more generally. Third, it turns to the way the government, after consolidating the national territory through conquest, drew upon the continuing backlash to abolition and widespread desire for racial segregation to remake the infrastructure and the very commodities on offer on the real estate market through its notorious redlining program and establishment of a major secondary mortgage market. In this way, it seeks to show the structural relation between transformations to the property system during these different historical periods and the evolving role of race in its organization, while providing comprehensive citations, in the style of a handbook, to relevant scholarship and primary materials throughout.

Highly recommended.

Weinrib on "A Farewell to Arms" by Hemingway

Laura Weinrib (Harvard University - Harvard Law School) has posted Law and Legitimacy in A Farewell to Arms (A Farewell to Arms, In Cannons and Codes: Law, Literature, and America's Wars, Alison LaCroix, Jonathan Masur, Martha Nussbaum, and Laura Weinrib eds., Oxford University Press (2021)) on SSRN.  Here is the abstract:

This chapter in an edited volume on law, literature, and war reads Ernest Hemingway’s celebrated 1929 novel, A Farewell to Arms, as an indictment of war’s moral and legal logic. While commentary on A Farewell to Arms has typically emphasized the transgressive nature of Henry and Barkley’s love affair, the chapter argues that the novel’s unmarried protagonists may in fact have entered into a common law marriage, and, at minimum, both their relationship and their unborn child are capable of retroactive legitimation. The sentimentality and comparative conventionality of the love story accentuate the brutality of wartime conduct, which Hemingway regarded as irredeemably criminal. By the same token, the navigability and relative predictability of the civilian legal system stand in stark contrast to the arbitrariness of the wartime legal order.

Leila on Gender-Based Discrimination in Egyptian Judicial Appointments

Mohamed N. Leila (Mansoura University, Faculty of Law; The American University in Cairo - Department of Law) has posted Gender-Based Discrimination in Egyptian Judicial Appointments: Was the Shift from Gender-Neutral to Gender-Conscious Provisions Inevitable?.  Here is the abstract:

Gender equality has been one of the most controversial issues in the Egyptian society. Despite its signature and ratification of the convention on the Elimination of all forms of Discrimination against women in September 1981, Egypt has blatantly been discriminating against women in many areas, one of which is judicial appointments. Thus, women are still completely banned from joining two judicial bodies, the Council of State and the Public Prosecution despite the absence of any legal provision that prohibits women from being judges. Accordingly, and for the first time in the Egyptian Constitutional history, a constitutional provision has been introduced that explicitly addresses discrimination against women in judicial appointments, in an attempt to tackle such gender-based discrimination. Article 11 of 2014 constitution expressly states that "The state... grants women the right to hold public posts and high management posts in the state, and to appointment in judicial bodies and entities without discrimination. " However, such a provision has not yet been enforced.

In this paper, the following research questions are addressed: Why have Women been denied their intrinsic right to be appointed as judges? Was the gender-conscious constitutional provision inevitable?

Does this provision humiliate women by considering them as second-degree citizens who need to be protected by exceptional constitutional provisions?

In this paper, I argue that the non-appointment of female judges is the result of the patriarchal nature of the Egyptian society and, in turn, its Judiciary and that religion is just a pretext used by anti-feminists to justify their stance. Also, I believe that Feminist movement is to be blamed for the failure in raising awareness about basic women rights. Accordingly, I believe that the shift from gender-blindness to gender-conscious provisions was of utmost importance as a first step to tackle this deep-rooted problem and that these provisions are justifiable in the Egyptian context despite playing a role in entrenching the conception that women are a marginalized group.

Redding on Transgender Rights & Kashmir

Jeffrey A. Redding (University of Melbourne - Law School) has posted Kashmir and Transgender Rights (National Law School of India Review (2020)) on SSRN.  Here is the abstract:

In South Asian states as diverse as Nepal, Pakistan, India, and Bangladesh, transgender people have come to sit at the center of a rich conversation about how law can and should be used to counter social and political marginalization. The transformation in transgender law in these states has been remarkable. Nonetheless, key questions remain about how and why South Asia’s legal gender-scape has shifted so quickly across so many borders, especially where there is a regional context of tense and suspicious inter-state relations.

This brief essay argues that, in fact, it is not at all surprising that a region of the world where fundamental questions about national choice have been center stage would produce some of the most profound legislative declarations about gender choice. To be sure, the terrain of choice has been uneven and rocky, but the South Asian social categories of nationality and gender (and others like religion too) are heavily inflected by a legal regime of choice.

Mitchell on Adding States to the United States

Jennifer Kindred Mitchell (The George Washington University School of Law) has posted Why Not More States? States’ Importance to Democracy and Statehood’s Relevance to Twenty-First Century America on SSRN.  Here is the abstract:

For the past 60 years it seems that the statehood discussion, which dominated national politics in the early part of American history, is dead. This document demonstrates that statehood is far from dead but very much alive through local and regional statehood movements, which reflect disconnect between citizens and their state governments. Statehood is as relevant now as it was in 1800; state governments continue to serve their citizens in concrete, impactful ways through taxing, spending, and legislating. States’ impact on American democracy has never changed as they are directly related to Congressional representation through Article I of the Constitution. Yet, the national statehood conversation has gone dormant. This document seeks to change how we approach statehood in the twenty-first century by exploring the legal requirements for statehood; how historically this process has played out through single issue and party politics; and how this process translates to the twenty-first century through modern statehood movements.

Balkin on Social Media & Informational Capitalism

Jack M. Balkin (Yale University - Law School) has posted To Reform Social Media, Reform Informational Capitalism (Social Media, Freedom of Speech and the Future of Our Democracy; Lee Bollinger and Geoffrey R. Stone, eds., Forthcoming) on SSRN.  Here is the abstract:

Calls for altering First Amendment protections to deal with problems caused by social media are often misdirected. The problem is not First Amendment doctrines that protect harmful or false speech. The problem is the health of the digital public sphere: in particular, whether the digital public sphere, as currently constituted, adequately protects the values of political democracy, cultural democracy, and the growth and spread of knowledge. Instead of tinkering with First Amendment doctrines at the margins, we should focus on the industrial organization of digital media and the current business models of social media companies.

Only a handful of social media companies currently dominate online discourse. In addition, the business models of social media companies give them incentives to act irresponsibly and amplify false and harmful content. The goals of social media regulation should therefore be twofold. The first goal should be to ensure a more diverse ecology of social media so that no single company’s construction or governance of the digital public sphere dominates. The second goal should be to give social media companies — or at least the largest and most powerful ones — incentives to become trusted and trustworthy organizations for facilitating, organizing, and curating public discourse. Competition law, consumer protection, and privacy reforms are needed to create a more diverse and pluralistic industry and to discourage business practices that undermine the digital public sphere.

Given these goals, the focus should not be on First Amendment doctrines of content regulation, but on digital business models. To the extent that First Amendment doctrine requires any changes, one should aim at relatively recent decisions concerning commercial speech, data privacy, and telecommunications law that might make it harder for Congress to regulate digital businesses.

Highly recommended.

Leib on the Constitutionality of the Federal Rules of Evidence

Ethan J. Leib (Fordham University School of Law) has posted Are the Federal Rules of Evidence Unconstitutional? (American University Law Review, Vol. 71, forthcoming 2022) on SSRN.  Here is the abstract:

This paper explores for the first time how the Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking – for Civil Procedure, for Criminal Procedure, and for Appellate Procedure – the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation doctrine because it allows statutes of the United States to be effectively rewritten by the Supreme Court outside the constraints of bicameralism and presentment, requirements of Article I, Section 7. Especially in light of the Court’s signals in recent terms that it may be seeking to revivify the non-delegation doctrine soon, focusing on the FRE’s formal deficiencies is urgent. Yet functionalists about the separation of powers also need to condemn our current FRE rulemaking process. Functionally, the FRE rulemaking system is constitutionally suspect because it permits the Supreme Court – outside of its Article III authority to hear “cases and controversies” – to repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government – Congress and the Supreme Court – that both have reasonable claims to some authority in the area.

Highly recommended.

Green on a Radical Algorithmic Imaginary

Ben Green (University of Michigan at Ann Arbor - Society of Fellows; University of Michigan at Ann Arbor - Gerald R. Ford School of Public Policy; Harvard University - Berkman Klein Center for Internet & Society) has posted Algorithmic Imaginaries: The Political Limits of Legal and Computational Reasoning (Law and Political Economy Blog) on SSRN.  Here is the abstract:

As debates about how to promote a more egalitarian society have become increasingly salient, one approach that has gained traction is to inform socially consequential policy decisions using algorithms. Algorithmic reasoning suffers from many similar deficiencies as legal thought in the era of the “Twentieth-Century Synthesis,” which rendered questions of political economy, power, and structural inequality invisible or irrelevant. What might be the tenets of a radical algorithmic imaginary, and how might we bring about such a praxis?

Green on the History of American Statehood

Craig Green (Temple University - James E. Beasley School of Law) has posted United/States: A Revolutionary History of American Statehood (Michigan Law Review, Vol. 119, No. 1, 2020) on SSRN.  Here is the abstract:

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification.

Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.

Very interesting and recommended.

Kahn-Fogelnon on Fourth Amendment Standing

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Standing in the Shadows of the New Fourth Amendment Traditionalism (Florida Law Review, Forthcoming) on SSRN.  Here is the abstract:

In the past decade, the Supreme Court has revived an originalist, property-based approach to evaluating Fourth Amendment problems. The Court has used this approach to broaden its understanding of the sorts of governmental conduct that qualify as Fourth Amendment searches. So far, however, neither the Court nor scholars have offered a comprehensive assessment of the implications of this new Fourth Amendment traditionalism for what is known as Fourth Amendment standing, a doctrine reflecting the Court’s longstanding determination that only one whose own Fourth Amendment interests are implicated by government conduct is entitled to raise a Fourth Amendment challenge to such conduct. This Article, which provides the first sustained treatment of the issue, concludes that the logical consequence of the new traditionalism will be a significant expansion of the class of people entitled to make Fourth Amendment claims, including in cases involving the kinds of quotidian, physical searches and seizures that have long been the focus of complaints about law enforcement abuse of vulnerable communities.

Very interesting and recommended.

Hawkins & Penner of Race & Marketing of Credit

Jim Hawkins (University of Houston Law Center) & Tiffany Penner have posted Advertising Injustices: Marketing Race and Credit in America *+(Emory Law Journal, Vol. 70, No. 1619, 2021) on SSRN.  Here is the abstract:

Access to affordable credit played a central role in the Civil Rights Movement. But today, racial and ethnic minorities oversubscribe to high-cost lending products like payday loans and underuse more affordable credit options that traditional banks offer. These trends remain even when controlling for demographic variables like income, credit score, and education. While researchverifies that these disparities exist, little work explains why.

This Essay argues that advertising entrenches these racial inequities. Two empirical studies we conducted of advertising by banks and payday lenders suggest that payday lenders steer African Americans and Latinos to their products while banks market to whites. For instance, though African Americans make up only 23% of payday lending customers, 35% of the “model” customers featured in advertising on these lenders’ websites depict African Americans.  Meanwhile, almost 30% of mainstream bank websites featured no African American models. Almost 75% featured no Latino models. Only 3% did not feature a white model. Even after the outcry over racial injustice in 2020, banks did not appreciably increase the representation of people of color on their websites.

This needs to change. We argue that lenders themselves are the first and simplest source for racial justice in advertising credit. Both payday lenders and banks can easily ensure that their advertising reflects the communities they serve. Congress and the Consumer Financial Protection Bureau also have a role to play. Amendments we propose to the Equal Credit Opportunity Act, the Community Reinvestment Act, and the regulations that implement them call for advertising that welcomes people of color to affordable credit sources.

Hasen on Election Subversion & Stolen Elections

Richard L. Hasen (University of California, Irvine School of Law Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States on SSRN.  Here is the abstract:

The United States faces a serious risk that the 2024 presidential election, and other future U.S. elections, will not be conducted fairly, and that the candidates taking office will not reflect the free choices made by eligible voters under previously announced election rules. The potential mechanisms by which election losers may be declared election winners are: usurpation of voter choices for President by state legislatures purporting to exercise constitutional authority to do so, possibly blessed by a partisan-divided Supreme Court and acquiesced to by Republicans in Congress; fraudulent or suppressive election administration or vote counting by law- or norm-breaking election officials; and violent or disruptive private action that prevents voting, interferes with the counting of votes, or interrupts the assumption of power by the actual winning candidate.

Until recently, it would have been absurd to raise the possibility of such election subversion or a stolen election in the United States. Few cases have emerged in at least the last 50 years in the United States of actual election subversion by election officials, leading to an election loser being declared the election winner, despite other unique pathologies of American election administration.

Ironically, the conduct of former President Donald J. Trump in repeatedly and falsely claiming that the 2020 election was stolen has markedly raised the potential for an actual stolen election in the United States. Millions of Trump’s Republican supporters now believe the false claim of a stolen election, and some Republican elected officials have pursued bogus sham “audits” and taken other steps that undermine voter confidence in the fairness of the election process. Threats of violence and intimidation have led to unprecedented attrition among election administrators, and some exiting officials are being replaced by those who may not have allegiance to the integrity of the election system. Those Republican election officials who stood up to Trump in 2020 and saved the United States from a potential constitutional and political crisis have been censured, stripped of power, and challenged for office by those embracing the “Big Lie.” Together, these actions serve both to delegitimate the election of Democrats including President Joe Biden in 2020 and to open the door to election manipulation in future elections. Elected officials, election officials, and others believing or purporting to believe the false claim that the 2020 presidential election was stolen may seek to justify subverting future election results in response to earlier purported fraud.

The solutions to these problems are both legal and political. Legal changes should include: (1) paper ballot, chain-of-custody, and transparency requirements, including risk-limiting audits of election results; (2) rules limiting the discretion of those who certify the votes, including Congress through reform of the Electoral Count Act; (3) rules limiting the over-politicization of election administration, especially by state legislatures; (4) increased criminal penalties imposed on those who tamper with federal elections or commit violence or intimidation of voters, elected officials, or elected candidates; and (5) rules countering disinformation about elections, particularly disinformation about when, where, and how people vote. In addition, it will be necessary to organize for political action to reenforce rule-of-law norms in elections. This means advocating for laws that deter election subversion and against laws making stolen elections easier; politically opposing would-be election administrators who embrace false claims about stolen elections; and preparing for mass, peaceful protests in the event of attempts to subvert fair election outcomes.

Part I of this Essay describes the path to this unexpected moment of democratic peril in the United States. Part II explains the three potential mechanisms by which American elections may be subverted in the future. Part III recommends steps that can and should be taken to minimize this risk. Preserving and protecting American democracy from the risk of election subversion should be at the top of everyone’s agenda. The time to act is now, before American democracy disappears.

Recommended.

Blackman & Tillman on the Emoluments Clause Litigation

Josh Blackman (South Texas College of Law Houston) & Seth Barrett Tillman (National University of Ireland - Faculty of Law) have posted The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct (Georgetown Journal of Law & Public Policy, Vol. 19, No. ___, 2022) on SSRN.  Here is the abstract:

Shortly after President Trump’s January 2017 inauguration, he was sued for violating the Foreign and Domestic Emoluments Clauses. The plaintiffs alleged that Trump’s acceptance of profits from foreign and U.S. state governments violated these once-obscure provisions of the Constitution. We filed amicus briefs in these cases, and made two arguments that had implications for separation of powers jurisprudence.

First, the Plaintiffs erred by suing President Trump in his “official capacity.” Under settled case law, a government officer violates the Constitution in his official capacity if—and only if—a government policy or custom must have played a part in the violation of federal law. Still, the Plaintiffs never alleged that President Trump acted pursuant to any government policy or custom. Nor did the Plaintiffs allege that Trump acted “under the color of law”—a precondition for pleading an individual-capacity claim. Rather, the case concerned alleged conduct that President Trump took personally. With respect to the Emoluments Clauses, the President has three bodies and can be sued in three distinct fashions: [1] an official-capacity claim involves a government policy or custom; [2] an individual-capacity claim involves action taken by a government officer under the color or law; and [3] a personal claim involves private conduct, absent state action.

We identified a second jurisdictional problem. The Plaintiffs argued that the federal courts had equitable jurisdiction to halt ultra vires action by a government officer. To support this argument, the Plaintiffs contended that federal district courts could issue an injunction—an equitable remedy—against the President. This argument conflated equitable jurisdiction and equitable relief. A plaintiff cannot establish equitable jurisdiction merely by seeking equitable relief. Rather, the plaintiffs must invoke a traditional equitable cause of action that was judicially recognized by 1789, or a cause of action that was created by Congress or the courts. The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires conduct by government officers.

Ultimately, the Supreme Court did not settle these issues, or any others presented by the Emoluments Clauses litigation. After President Biden’s inauguration, the Supreme Court vacated the lower-court judgments that ran against the President, and ordered the courts of appeals to dismiss the cases as moot.

As the Emoluments Clauses litigation fades in the rear-view mirror, this Article offers a retrospective of these two unresolved threshold issues. Our article also provides some guidance on how to litigate future allegations that the President personally violated the Constitution.

Recommended.

Feinstein & Wood on Intra-Agency Political Dynamics

Brian D. Feinstein (The Wharton School of the University of Pennsylvania) & Abby K. Wood (University of Southern California Gould School of Law) have posted Divided Agencies on SSRN.  Here is the abstract:

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically selected political principals or as bold “resisters” countering those principals’ ultra vires proposals, accounts of civil-servant opposition are legion. Move beyond headlines, however, and little is known about the impact of political divisions within agencies on their workaday functioning.

This Article presents the first comprehensive, empirical examination of the effects of intra-agency political dynamics on policymaking. Leveraging data on political preferences based on campaign donations, we identify “ideological scores” for both appointees and civil servants in 47 agencies over 34 years—the first measure of the political gap between these two groups across agencies and time. We use these scores to examine how ideological divergence between appointees and civil servants affects regulatory activity.

We find that agencies with greater distance between these two groups—which we term divided agencies—adopt a more cautious posture. They tend to extend the rulemaking process and allow consideration of late-filed comments. These features provide appointees with extra time to gather and digest comments from politically aligned outside experts. Divided agencies’ caution extends to the content of final rules, which tend to be shorter and less numerous. Remarkably, we find no evidence that divided agencies are any less successful in shepherding proposed rules to final status. That finding casts doubt on the claim that the longer rulemaking timeframes in these agencies are attributable to civil servants’ attempts to derail oppositional appointees’ initiatives. Instead, it suggests that divided agencies’ caution pays off.

These findings imply that, with agency heads oscillating between left and right based on the party in power, the generally more moderate civil service can serve as a ballast. Specifically, faced with appointees that may be responsive only to a bare electoral majority, the presence of oppositional civil servants may encourage regulatory caution and push decision-making away from the extremes—thus, paradoxically, moving policy toward the median voter.

Our findings also spotlight the critical role that the notice-and-comment process—which is often maligned as pretextual—can play in divided agencies. Generalist appointees face a principal-agent problem when crafting rules; their key source of necessary in-house expertise, civil servants, may be misaligned. In this circumstance, comments from outside allies can provide a check on civil servants’ work. Further, the finding that civil servants can play a pro-majoritarian, moderating role in divided agencies highlights the importance of preserving civil-service protections—especially in today’s polarized political climate.

Highly recommended.

Dixon & Loughland on Organizing Principles of Legal Feminism

Rosalind Dixon (University of New South Wales (UNSW) - Faculty of Law) & Amelia Loughland have posted Gender Disruption, Amelioration and Transformation: A Comparative Perspective (Oxford Handbook of Feminism and Law in the U.S. (Deborah L. Brake, Martha Chamallas, & Verna L. Williams, eds.) (forthcoming 2022)) on SSRN.  Here is the abstract:

American legal feminism has many different variants, each offering important insights. The danger, however, is that this complexity to feminist legal thought may cause some lawyers and scholars to “tune out” to feminist insights. The paper thus provides a way of understanding these various insights, which acknowledges their complexity but seeks to make them more accessible. It proposes the idea of feminist “disruption”, “amelioration” and “transformation” as organizing principles that underpin feminist thought, in different ways and to different degrees, but which provide a common language for understanding new and older feminisms. It illustrates this approach, and its potential benefits, through the lens of a feminist analysis of COVID-19 and its impact.

Highly recommended.

Jalloh on Subsidiary Means for the Determination of International Law

Charles C. Jalloh (Florida International University College of Law) has posted Subsidiary Means for the Determination of Rules of International Law (Annex to the Report of the International Law Commission on the work of its Seventy-Second Session (2021)) on SSRN.  here is the abstract:

The International Law Commission (ILC), an independent expert body of the United Nations General Assembly, is entrusted with assisting States with the promotion of the progressive development of international law and its codification. As part of this, under the Statute of the ILC adopted in 1947, the ILC identifies topics on critical issues of international law that may warrant further study. Members of the ILC submit proposals for consideration within the context of the ILC’s Working Group on Long-term Program of Work. The requirements are that the topic should: (a) reflect the needs of States in respect of the progressive development of international law and its codification; (b) be sufficiently advanced in stage in terms of State practice to permit progressive development and codification; and (c) be concrete and feasible for progressive development and codification. This topic proposal, prepared by Prof. Charles C. Jalloh, in his capacity as a member of the ILC, was approved by the ILC in 2021. This means that there was consensus that the topic fulfills the criteria for addition to the long-term program of work. The paper proposes a study related to sources of international law, specifically, article 38(1)(d) of the Statute of the International Court of Justice which provides for judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of international law. The topic is notified to States as an annex to the Report of the International Law Commission on the work of its Seventy-Second Session (2021).

Berger on Cedar Point Nursey v. Hassid

Bethany Berger (University of Connecticut School of Law) has posted Eliding Original Understanding in Cedar Point Nursery v. Hassid (Yale Journal of Law and the Humanities, Forthcoming) on SSRN.  Here is the abstract:

Cedar Point Nursey v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding.

American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries that did not cause economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even rejections of what made the new nation a land of liberty.

Although originalism is a watchword of the Court’s conservative majority, the Court rejected this legal tradition in Cedar Point. The new per se rule does include exceptions that, if read broadly, may limit this departure from original understanding. Time will tell whether the Justices take this second opportunity to make good on their originalist commitments.

Recommended.