Legal Theory Blog

Norton on Manipulation & the First Amendment

Helen L. Norton (University of Colorado Law School) has posted Manipulation and the First Amendment (William & Mary Bill of Rights Journal, Forthcoming) on SSRN.  Here is the abstract:

This Essay draws from ethicists’ insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions. More specifically, the key features of manipulation—as defined by ethicists Daniel Susser, Beate Roessler, and Helen Nissenbaum—are a speaker’s hidden efforts to shape listeners’ decision-making that target and exploit those listeners’ vulnerabilities in ways that the targets are not consciously aware of, and in ways that those targets could not easily become aware of if they were to try

This Essay then explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. In commercial settings, more specifically, it proposes that the Court should refine and extend commercial speech doctrine to add “manipulative” commercial speech to the commercial speech it currently treats as entirely unprotected by the First Amendment because it frustrates listeners’ interests. This move tracks the original theoretical justifications of the commercial speech doctrine as steeped in protecting listeners’ First Amendment interests. When we recall that false and misleading commercial speech, as well as commercial speech related to illegal activity, loses its First Amendment protection precisely because it frustrates listeners’ First Amendment interests, we can see that the same can be true of manipulative commercial speech: it frustrates listeners’ interests by seeking to covertly influence those listeners’ choices without their conscious awareness and by targeting and exploiting their vulnerabilities.

Filling this doctrinal lacuna would also help fill enforcement lacunae within current law. Even though existing consumer protection statutes frequently prohibit “unfair” as well as “deceptive” trade practices, to date enforcement efforts have focused almost entirely on allegedly deceptive practices—largely because of the conceptual difficulty in defining and describing illegally “unfair” practices. Here too ethicists give us the conceptual tools to help us understand why manipulation can be regarded as “unfair” to listeners even when it is hard to characterize as deceptive in traditional terms.

This then requires that we have a workable principle for identifying online commercial speech that is manipulative (and thus unprotected by the First Amendment). To this end, this Essay consider two possibilities: a) focusing on evidence of interfaces’ manipulative success in changing consumers’ choices; and b) targeting interfaces that display key manipulative features that increase the risk of manipulation.

Finally, this Essay briefly examines how online manipulation in the political setting poses harms of its own that may also justify appropriately tailored regulatory intervention (even while recognizing that the First Amendment barriers to such regulation are significantly greater in this context than in the commercial setting) and closes by highlighting some possible interventions that deserve further consideration.

Johnson on the Origins of Supreme Court Question Selection

Ben Johnson (Penn State Law School (University Park)) has posted The Origins of Supreme Court Question Selection (Columbia Law Review, Forthcoming) on SSRN.  Here is the abstract:

Arbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet, despite the significance of this practice, its origins are poorly understood. This is the first Essay to uncover the hidden history of the Court’s question-selection powers. It reveals an important---and possibly intractable---conflict between the Court’s legal authority and its practice.

Scholars usually explain the Court’s agenda control as either a power granted by Congress or a natural component of the judicial power. Tracing the statutory, legislative, and common law histories, this Essay presents a novel challenge to these standard narratives. The Court’s custom of targeting specific questions is not grounded in the history of appellate practice and Congress never intended to, and likely never did, give the Supreme Court the power to select its own questions. This history has profound repercussions for the Court’s appellate jurisdiction. The question-selection power rests uneasily with both the statutes and Article III’s case-or-controversy requirement, risks doing fundamental injustice to litigants, and pulls the Court deeper into politics---all of which put its legitimacy at risk. Abandoning this practice would almost certainly limit the Court’s ability to answer hot-button political questions, but it might also help to preserve the Court’s legitimacy.

Highly recommended.

Voorwinden on Softlaw & Cities

Astrid Voorwinden (University of Groningen) & Sofia Ranchordas (University of Groningen, Faculty of Law; Libera Universita Internazionale degli Studi Sociali; Yale Law School - Information Society Project) have posted Soft Law in City Regulation and Governance (in U. Morth, E. Korhea-aho, M. Eliantonio (eds), Edward Elgar Research Handbook on Soft Law (forthcoming, 2022)) on SSRN.  Here is the abstract:

This chapter examines the use of soft law instruments in the context of urban regulation and governance. Soft law provides local governments with tools to regulate crucial contemporary problems while fostering international collaboration and involving non-state actors in urban governance. These non-binding instruments offer new possibilities and expand cities' typically limited range of action at both national and international levels.

This chapter focuses on the use of soft law in smart cities, that is, urban centres that harness digital technology at the service of goals such as quality of life improvement. Smart cities have embraced soft law since they rely on new technologies (e.g., IoT networks, facial recognition) that pose challenges unaddressed by traditional regulation. Thus, smart cities employ technical standards, memoranda of understanding, charters of ethics, and establish international networks in their attempts to regulate urban problems with both local and global character.

Batty on Trademark & AI

Rob Batty (University of Auckland - Faculty of Law) has posted Trade Mark Infringement and Artificial Intelligence (New Zealand Business Law Quarterly (Forthcoming)) on SSRN.  Here is the abstract:

Artificial intelligence (AI) technologies are starting to alter the way in which consumers shop for and purchase goods and services. This exploratory article examines some of the implications the increasing use of AI technologies may have to the law of trade mark infringement under New Zealand’s Trade Marks Act 2002. Trade mark infringement is typically predicated on a finding that there would be a likelihood of confusion caused by the defendant’s use of an identical or similar sign to a registered trade mark. Established trade mark doctrine assesses whether confusion is likely by having regard to the perceptions of the hypothetical “average” human consumer, who has deemed human traits and psychological characteristics. The article suggests that as AI becomes more heavily involved in helping consumers shop for and purchase goods and services various discordances with this established trade mark doctrine may develop. After analysing these potential discordances, the article considers how New Zealand trade mark legal doctrine may adapt. The article concludes by considering how the increasing use of AI technologies may challenge fundamental understandings of the role of trade marks, and the implications this could have for legal doctrine.

Lazerow on Adverse Possession of Art

Herbert I. Lazerow (University of San Diego School of Law) has posted Adverse Possession of Art on SSRN.  Here is the abstract:

Some cases and commentators have argued that the doctrine of adverse possession, which gives title to a long-term possessor of property, should not be applied to personal property, especially to artworks. This article examines California law, and concludes that it is impossible to determine whether adverse possession applies to personalty or not. It then looks at the doctrine, policy and practicalities of the statute of limitations, laches and adverse possession. It concludes that most objection to the application of adverse possession is in fact objection to the application of the statute of limitations; that as a theoretical matter, once suit is barred by the statute of limitations, the application of adverse possession is appropriate, but adverse possession seems less important to successful litigants for personal property than it does for realty because there are few effective gatekeepers for personalty.

Recommended.

Dickens on Conscientious Objection by Physicians & the Duty to Refer to Non-Objecting Providers

Bernard Dickens (University of Toronto - Faculty of Law) has posted Conscientious Objection and the Duty to Refer (International Journal of Gynecology and Obstetrics 2021; 155: 556-560) on SSRN.  Here is the abstract:

Medical associations and leading courts reinforce the duty of physicians who conscientiously object to participate in treatment indicated for their patients to refer them to non-objecting practitioners. Ethical and legal duties require continuity of care when physicians withdraw from patients’ treatment on grounds of conscience. The duty to refer might affect gynecologists when their patients request, e.g., contraceptive means, sterilization, abortion, medically assisted reproductive procedures or gender reassignment. Legislation and leading law courts, notably the UK Supreme Court and Constitutional Court of Colombia, and professional associations such as the College of Physicians and Surgeons of Ontario, have clarified the duty to refer. Physicians are expected to cater their individual conscience to their professional ethical and legal duties, favoring their patients’ choices over their personal objections. Physicians can object to “hands-on” conduct of procedures they find objectionable, but cannot deny referral on grounds of complicity in what other care providers do.

Altman on Parents as Fiduciaries

Scott Altman (University of Southern California Gould School of Law) has posted Are Parents Fiduciaries? on SSRN.  Here is the abstract:

Parents resemble trustees, conservators, and other fiduciaries; they exercise broad discretion while making choices for vulnerable people. Like other fiduciaries, parents can be tempted to neglect their duties or pursue self-interest at the expense of those they should protect. Based on these similarities, courts, legal academics, and philosophers have long argued that parents are (or should be) moral and legal fiduciaries.

Arguments for treating parents as fiduciaries face a challenge. Because parenting intersects with many aspects of a person’s life, a strict fiduciary duty of loyalty might be burdensome, regulating almost any parental decision. Parents could be required to lead much of their lives guided only by their child’s needs.

This article argues against treating parents as fiduciaries for four reasons. First, the scope of parental fiduciary duties cannot be narrowed enough to make them tolerable. Arguments limiting fiduciary duties to cases where parents exercise delegated powers or act within parenting roles fail. Most parental decisions involve dual powers or roles. Addressing these dual-role cases lead to principles that are unduly demanding, complex, arbitrary or otherwise morally unappealing.

Second, we could limit parental fiduciary duties by designing parental roles to benefit children. Since children need devoted, happy, well-rounded parents, the principle of designing parental roles to benefit children would produce rules that leave room for parents to flourish. However, this principle does not justify specific legal or moral fiduciary norms.

Third, we could redefine fiduciary duties so parents can balance their interests against children’s interests, making fiduciary duties less burdensome. However, expanding the definition of fiduciary threatens to encompass many duties within the fiduciary category, rendering the description almost meaningless. Furthermore, adopting this account is inconsistent with the child-centered moral norms that motivate most scholars to call parents fiduciaries.

Finally, we usually grant fiduciaries discretion in selecting how they advance their charge’s interests. However, we do not let them choose what ultimate goals to pursue. Unlike trustees or corporate directors, parents need to act on potentially controversial views about what makes for a good life. Regulating such decisions might be inappropriate for a liberal state, making traditional fiduciary approaches problematic.

Highly recommended.

Cunningham on Quality Shareholders & Corporate Governance

Lawrence A. Cunningham (George Washington University) has posted Lessons from Quality Shareholders on Corporate Governance Practice, Research and Scholarship (5 Geo. Wash. Bus. & Fin. Rev. 1, 2021) on SSRN.  Here is the abstract:

Special Note: This Publication is part of The Quality Shareholder Initiative at the Center for Law, Economics and Finance (C-LEAF), at The George Washington University Law School, Prof. Lawrence A. Cunningham, Faculty Director.

This Article presents original data and analysis addressing an understudied force in corporate America: the most patient and focused shareholders. Great attention has been devoted to short-term trading on the one hand and diversified index funds on the other, but scant attention has been focused on long-term concentrated investors. The George Washington University has been redressing this problem through a research initiative focused on such buy-and-hold stock pickers, whom Warren Buffett long ago dubbed 'quality shareholders'. GW’s Quality Shareholders Initiative ('QSI') is pleased to present highlights of the initial installment of this work in this Article in the Business and Finance Law Review at the George Washington University’s Center for Law, Economics, and Finance.

Landers on Economic Insecurity, Social Insurance, & COVID-19

Renee M. Landers (Suffolk University Law School) has posted Buffering Against Vicissitudes: The Role of Social Insurance in the COVID-19 Pandemic and in Maintaining Economic Stability (Georgia Journal of International and Comparative Law, Vol. 49, No. 3, 2021) on SSRN.  Here is the abstract:

Based on a panel presentation for a virtual symposium, The Future of Global Healthcare Governance, sponsored by the University of Georgia Law School’s Journal of International & Comparative Law and the Dean Rusk International Law Center, this article addresses the ways in which governments could address economic insecurity by addressing the gaps the COVID-19 pandemic exposed in existing social insurance programs such as unemployment insurance and health insurance and using new policies such providing basic guaranteed incomes.

Alon-Beck, Agmon-Gonnen, & Rosenblum on Corporate Governance a Fiduciary Duty to Do the Right Thing

Anat Alon-Beck (Case Western Reserve University School of Law), Michal Agmon-Gonnen (District Court of Tel Aviv - Commercial Department I; Tel Aviv University - Buchmann Faculty of Law) & Darren Rosenblum (McGill University Faculty of law; Pace Law School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law) have posted A Duty to Diversity (Vanderbilt Law Review, Forthcoming) on SSRN.  Here is the abstract:

Fiduciary duties reflect the central role of leaders in corporate governance. Those with the most responsibility benefit the most from corporate success, but also bear commensurate fiduciary responsibilities. Equality, diversity, and inclusion may seem an odd fit among other fiduciary duties. However, fiduciary duties are where governance imposes the burden of 'doing the right thing'. Fiduciary duties involve normatively good behavior that proves essential to ensuring responsible decision-making and achieving positive outcomes for firms.

Corporate law allows, encourages and perhaps, today, even mandates, corporate leaders to do the right thing. Not only does it seem appropriate to ask corporate leaders, such as institutional investors, to carry this fiduciary duty, but imposing this duty on them may prove far more effective than other efforts. As a new generation of leaders rise to lead, the resulting changes may prove revolutionary, both for firms and investors.

Joslin on Parentage Reform & COVID-19

Courtney G. Joslin (University of California, Davis - School of Law) has posted COVID and the Urgency of Parentage Reform (Drexel Law Review (Forthcoming)) on SSRN.  Here is the abstract:

This Essay highlights how the COVID-19 pandemic underscores the urgent need to reform outdated and discriminatory parentage laws.

Coan & Forbes on Qualified Immunity

Andrew Coan (University of Arizona, James E. Rogers College of Law) & DeLorean Forbes (University of Arizona, James E. Rogers College of Law) have posted Qualified Immunity: Round Two (78 Washington and Lee Law Review 1433 (2021)) on SSRN.  Here is the abstract:

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might judicial capacity concerns prompt judges to take countermeasures that discourage constitutional tort suits, effectively reproducing qualified immunity by another name? Can anything be done to prevent this outcome?

This Article takes up these questions, which will remain relevant as long as qualified immunity persists and become urgent if and when the doctrine is seriously reformed or abolished. The first step is to disaggregate the federal judiciary into its component parts. A substantial influx of new constitutional tort litigation poses little threat to the capacity of the Supreme Court because the Justices would not feel compelled to review more than a tiny fraction of these cases. Lower courts, however, must decide every case presented to them and many of them are already staggering under overwhelming workloads. Several of the tools available for managing a sudden surge of cases would raise substantial obstacles to the success of constitutional tort plaintiffs, replicating many, if not all, of the effects of qualified immunity. This outcome is not inevitable, however. Avoiding it will be “Round Two” in the battle over qualified immunity. The most powerful weapons in that fight, as in Round One, will be political and social, rather than legal.

Highly recommended.

Kahan & Rock on Universal Owners & Stewardship

Marcel Kahan (New York University School of Law; European Corporate Governance Institute) & Edward B. Rock (New York University School of Law; European Corporate Governance Institute) have posted Systemic Stewardship with Tradeoffs on SSRN.  Here is the abstract:

'Universal owners' – asset managers and owners that hold a significant swath of many public companies -- have become important forces in the capital markets. As a group, they hold a significant percentage of the shares of public companies, often with substantial holdings in individual portfolio firms. Some commentators have argued that universal owners should use their influence in portfolio companies to maximize the value of the overall portfolio, rather than the value of any particular company. For some, this means that universal owners should adopt 'systemic stewardship' that would push for market wide initiatives to reduce environmental externalities and control systemic risk (e.g., standardized climate risk disclosure, board diversity targets, etc.). Others push for a more ambitious agenda in which universal owners would take affirmative steps to mitigate risks to the long term value of the portfolio such as the risk of climate change by, for example, pushing carbon emitters to cut output, whether or not that promotes firm value.

But shareholders, even universal owners, do not manage companies. Rather, the business and affairs of a corporation are managed by full time senior management teams under the general oversight of a board of directors, within a framework created by corporate law. In this article, we analyze the extent to which universal owners can and should be expected to sacrifice single firm value even when doing so increases the value of the overall portfolio. We are quite pessimistic about the potential of systemic stewardship that entails substantial tradeoffs among portfolio companies.

This is for three principal reasons. First, universal owners would have to take into account the possibility that inducing some firms to reduce environmental externalities and mitigate risk will generate a competitive response that will eliminate the benefits from these actions for their other portfolio companies. If that were to happen, universal owners would be stuck with the losses without receiving any corresponding gains. Second, corporate law, as it currently stands, has a strong 'single firm focus' ('SFF') that stands in sharp contrast to the potential 'multi-firm focus' ('MFF') of large portfolio investors. If universal owners were to work individually or together to protect their overall portfolios from systemic risk, it would clash with corporate law, securities regulation and potentially antitrust in a fundamental way that could create significant risks of liability and a significant potential for political backlash. Third, universal owners typically manage a wide variety of different portfolios for different clients each of whom is owed fiduciary duties. A 'trade-off' strategy that would benefit some portfolios at the expense of other portfolios would conflict with these fiduciary duties as well as with the core multi-client multi-portfolio business model. As a result, we expect that universal owners will act unilaterally and under cloak of promoting single firm value, but by doing so will not be very effective in promoting portfolio value.

Frye on NFTs & Ownership Without Control

Brian L. Frye (University of Kentucky - College of Law) has posted After Copyright: Pwning NFTs in a Clout Economy on SSRN.  Here is the abstract:

Copyright is supposed to solve market failures in works of authorship by encouraging their creation and distribution. But it isn't very efficient. Most importantly, it makes public goods artificially scarce. But we accept it because it's the best tool we have.

What if we could do better? Maybe we can. The new market for NFTs suggests that people are willing to pay authors for ownership without control. Or rather, NFT collectors want pwnership and clout. NFTs promise a way of encouraging authors to create works, without limiting their consumption.

This essay explains how NFTs work, describes the rapidly growing market for NFTs, and reflects on how the NFT market could transform authorship.

!!!  Pwn it while it's hot!

Legal Theory Lexicon: Formalism and Instrumentalism

Introduction

American law students learn about formalism and instrumentalism early on—although those particular terms may not be introduced explicitly in classroom discussion. Many law students hunger for “black letter law": they are looking for legal rules that can be memorized and applied to the facts in a more or less determinate (or even "mechanical") fashion. But in most law school classrooms, this hunger is not satisfied.  Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for a good legal rule. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice.  Many are progressive or liberal; a few are conservative or libertarian.

In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize sexual activity between persons of the same sex?” or “Shall abortion be legal?”  Moreover, students quickly learn that the constitutional text does not seem to be much of a barrier to a result that the Court really wants to reach.  An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.

But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.

In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.

Legal Formalism

What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following

Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.

In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning.  We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:

• Judges should apply the law and not make it.
• There are legal rules that constrain what legal actors may lawfully do.
• There is a difference between following the law and doing what you think is best.
• Judges should decide cases in ways that are consistent with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents

This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, rules of procedure, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not).

That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:

1. The law consists (at least in part) of rules that are derived from the linguistic meaning (or communicative content) of authoritative legal texts.

2. Legal rules can be applied to particular facts.

3. Some actions accord with meaningful legal rules; other actions do not.

4. The standard for what constitutes following a rule (or not) can be publicly knowable and the focus of intersubjective agreement.

Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.  Of course, plain-meaning theories of statutory interpretation could (and should) adopt the originalist thesis that "meaning" (or "plain meaning") is fixed at the time the text is drafted and promulgated.

Legal Instrumentalism

Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.

The Realist Critique of Legal Formalism

It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Some realists may have believed that ideology does the work in legal decisionmaking; legal formalism dresses it up so that it looks "legitimate."

The Modern Revival of Legal Formalism or "Neoformalism"

Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.

Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.

Because the terms "formalism" and "formalist" carry a lot of baggage, some contemporary formalists prefer to use the terms "neoformalism," "textualism," or "new textualism" as labels for their position.  Likewise, some contemporary originalists refer to "the new originalism" to distinguish their position from others that are called "originalist."

A Word About the History of Formalism and Instrumentalism

Although many contemporary legal theorists take it for granted that there was a sharp divide between "legal formalism" and "legal instrumentalism" at some prior historical period.  It is not clear that is the case.  The judges and thinkers that are sometimes labeled as formalists frequently displayed an awareness of the role of "policy" and "purpose" in legal decisionmaking.  And many so-called "legal realist" or "instrumentalist" judges believed that the core meaning of authoritative legal texts limited the legitimate use of instrumentalist considerations in judging.  The line between the historical figures we now call instrumentalists and formalists may have been quite fuzzy indeed.

Conclusion

The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.

Related Entries

• Legal Theory Lexicon 001: Ex Ante/Ex Post
• Legal Theory Lexicon 017: The Rule of Law
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 024: Balancing Tests
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 035: Strict Construction and Judicial Activism
• Legal Theory Lexicon 036: Indeterminacy
• Legal Theory Lexicon 045: The Attitudinal Model and the New Institutionalism
• Legal Theory Lexicon 051: Vagueness and Ambiguity
• Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories

Bibliography & Links

• Larry Alexander, Law and Formalism.
• Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights.
• James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 Va. L. Rev. 1523 (2011) (alternative download).
• Frederick Schauer, Formalism, 97 Yale L.J. 509 (1988).
• Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006).
• Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009).

PDF

• http://ssrn.com/abstract=2367953

(This entry was last modified on December 5, 2021.)

Legal Theory Bookworm: "The Collapse of Constitutional Remedies" by Huq

The Legal Theory Bookworm recommends The Collapse of Constitutional Remedies by Aziz Z. Huq.  Here is a description:

An exploration of how and why the Constitution's plan for independent courts has failed to protect individuals' constitutional rights, while advancing regressive and reactionary barriers to progressive regulation.

Just recently, the Supreme Court rejected an argument by plaintiffs that police officers should no longer be protected by the doctrine of "qualified immunity" when they shoot or brutalize an innocent civilian. "Qualified immunity" is but one of several judicial inventions that shields state violence and thwarts the vindication of our rights. But aren't courts supposed to be protectors of individual rights? As Aziz Huq shows in The Collapse of Constitutional Remedies, history reveals a much more tangled relationship between the Constitution's system of independent courts and the protection of constitutional rights.

While doctrines such as "qualified immunity" may seem abstract, their real-world harms are anything but. A highway patrol officer stops a person's car in violation of the Fourth Amendment, violently yanked the person out and threw him to the ground, causing brain damage. A municipal agency fires a person for testifying in a legal proceeding involving her boss's family-and then laughed in her face when she demanded her job back. In all these cases, state defendants walked away with the most minor of penalties (if any at all). Ultimately, we may have rights when challenging the state, but no remedies. In fact, federal courts have long been fickle and unreliable guardians of individual rights. To be sure, through the mid-twentieth century, the courts positioned themselves as the ultimate protector of citizens suffering the state's infringement of their rights. But they have more recently abandoned, and even aggressively repudiated, a role as the protector of individual rights in the face of abuses by the state. Ironically, this collapse flows not decisions that the Framers took when setting up federal courts in the first place.

A powerful historical account of the how the expansion of the immunity principle generated yawning gap between rights and remedies in contemporary America, The Collapse of Constitutional Remedies will reshape our understanding of why it has become so difficult to effectively challenge crimes committed by the state.

Download of the Week: "The Ghost of John Hart Ely" by Doerfler & Moyn

Ryan Doerfler (University of Chicago - Law School) & Samuel Moyn (Yale University) have posted The Ghost of John Hart Ely (Vanderbilt Law Review, Vol. 75, 2022) on SSRN.  Here is the abstract:

The ghost of John Hart Ely haunts the American liberal constitutional imagination. In spite of the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming even deeply entrenched historic discrimination against deserving minorities — even as courts act to entrench the power of undeserving ones, like the powerful and wealthy today. Second, the Article contends that Ely’s almost complete failure to anticipate the inaction of the judiciary in policing the democratic process — except when judges assist their own ideological allies — is devastating for his theory, which depended precisely upon an empirical prediction. Ely’s conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self-interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely’s two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy’s shortcomings to be remedied within democratic politics — which is, in turn, the most desirable future of liberal constitutionalism.

Highly recommended.  Download it while it's hot!

Essential, reading for anyone interested in contemporary constitutional theory.

Carugati on Antitrust & Privacy

Christophe Carugati (Université Paris II - Panthéon-Assas) has posted The Antitrust Privacy Dilemma on SSRN.  Here is the abstract:

Antitrust cases related to privacy are on the agenda of many competition authorities worldwide, including Europe, the United States, the United Kingdom (the UK), India, Turkey, Germany, and France. Antitrust and privacy is thus "one of the big topics of the year," as stated by the former President of the French competition authority, Isabelle de Silva. Whereas some antitrust cases concern a reduction in privacy protection, other concern an increase in privacy protection. In other words, user privacy can decrease or increase as the result of alleged anticompetitive practices. An antitrust privacy dilemma? From a law and economics standpoint, the paper solves this antitrust privacy dilemma and puts forward a new way of resolving antitrust cases related to privacy. Section II analyzes the dilemma. It proposes an analytical framework to identify where data protection strategies should be considered pro or anticompetitive strategies. Section III proposes a new way of resolving cases. It suggests a coordinated participative approach with competition and non-competition regulators and stakeholders to address competition and privacy concerns with tailored remedies to what is necessary without eliminating pro-privacy effects.

Lund on Bostock

Nelson Lund (George Mason University School of Law) has posted Textualism and Bostock on SSRN.  Here is the abstract:

This short essay demonstrates that the Supreme Court’s majority opinion in Bostock v. Clayton County is fatally flawed in a way that will force the Court to reject its reasoning in future cases, whether the Justices admit it or not. This demonstration supplements the arguments in the dissenting opinions of Justices Alito and Kavanaugh.

Michaels on Social Value & Patent Law

Andrew C. Michaels (University of Houston Law Center) has posted Benefits of the Invention and Social Value in Patent Law (George Mason Law Review, Forthcoming) on SSRN.  Here is the abstract:

Traditionally, patent law purports to rely on the market to assess the extent of an invention’s value. The underlying theory is that as long as the basic requirements for the patent are met, the patent is granted and the patentee is given the right to exclude; the value of that right will depend on market valuation of the invention. But in reality, courts do consider the extent to which an invention benefits society in various patent law doctrines, including utility, eligibility, nonobviousness, and damages. This is consideration is generally not openly acknowledged, but occurs in the background, the equities of the case so to speak.

This article defends and argues for a more open acknowledgement of the role of benefits of the invention in patent law. Courts do have a role to play in assessing an invention’s value, especially where there is reason to think that there may be a mismatch between the invention’s social value and market value. Patent law should embrace the notion that it is not solely concerned with increasing the rate of innovation agnostically as to the benefits of the technology; rather, patent law also plays a role in shaping the direction of innovation. More open acknowledgement of this role would provide better information to the public and allow the development of more consistent and coherent standards. This development could occur gradually through the common law method, without any drastic break from precedent. To this end, this article also explores various doctrinal possibilities, such as a revival and modification of the pioneer patent doctrine.

Farbman on Local Government & Resistance Movements

Daniel Farbman (Boston College - Law School) has posted "An Outrage Upon Our Feelings": The Role of Local Governments in Resistance Movements (Cardozo Law Review, Vol. 42, No. 6, 2021) on SSRN.  Here is the abstract:

After the election of 2016, many who opposed President Trump and his policies argued that local governments and local power would be the best tools to resist those policies and strengthen democracy. Among the most prominent acts of local resistance in the last decade have been resolutions that declare a town or a city a “Sanctuary” and refuse to cooperate with federal authorities in the deportation of undocumented immigrants. This Article situates these resolutions in a long tradition of local opposition to state and federal laws that towns and cities deem unjust by examining local opposition to the Fugitive Slave Law of 1850. Drawing on original archival research, this Article exposes striking similarities between contemporary tactics of local resistance and the tactics of local governments in 1850–1851 that passed formal resolutions opposing the Fugitive Slave Law. This examination of how local governments responded to the Fugitive Slave Law poses two broad questions: what did local governments think they were doing when they passed these resolutions? And how much power did local governments really have to achieve those goals? The answers to these questions are complex and context specific. The local struggles that resulted in these resolutions were part of an ongoing political struggle against the seemingly intractable problem of slavery. The local resistance chronicled here is exceptional neither in its heroism nor its effectiveness. Rather it is striking in its familiar messiness and ambition. In some cases, towns seemed to have modest expressive goals that could be met by their resolutions. In other cases, the towns’ resolutions seem to suggest a much broader set of substantive goals that were beyond the power or capacity of the town to achieve. Examining these responses to the Fugitive Slave Law offers a new analytical perspective on local responses to the deportation crisis. Examining what local governments think they are doing when they pass sanctuary ordinances and comparing that with what they are empowered or willing to do helps us think more clearly about how and by what means local governments can resist national policies and engage in broad political struggles.

Highly recommended.

Grigoleit on Subjectivism & Objectivism in Legal Reasoning

Hans Christoph Grigoleit (Ludwig Maximilians University of Munich - Faculty of Law) has posted Subjectivism, Objectivism and Intuitionism in Legal Reasoning – Avoiding the Pseudos (Philip M. Bender (ed.), The Law Between Objectivity and Power, Nomos & Hart Publishing, Baden-Baden & Oxford, 2021 (Forthcoming)) on SSRN.  Here is the abstract:

The paper defines and explores objectivism and subjectivism in legal reasoning. The term subjectivism is used to describe two directions of legal arguments which play a crucial role basically in all legal systems: Firstly, subjectivism may refer in private law to the intention of one or more parties. Secondly, in the context of interpretation of all “authoritative” legal sources (statutes, precedents et al.), it may aim at the intention of the “legislator” (parliament; court et al.). On this definition basis, the paper presents – in a quite simple and synoptical manner – 12 statements which sketch out some limits of subjectivism, define some potentials of what may be established as the contrast criterion of objectivism and, finally, to establish intuitionism as a complementary and in the context meaningful third category.

Recommended.

Dixon on Informality & Property Claims

Martin Dixon (University of Cambridge - Faculty of Law) has posted Informality and Claims to Property ([2021] Conv 1, 1-5) on SSRN.  Here is the abstract:

Discusses the complexity of property claims based on informal legal structures which arise when relationships break down, and how the courts have responded. Reviews a claim for proprietary estoppel in Guest v Guest (CA) to grant the claimant a share of a family farm and business, how the Supreme Court may approach the impending appeal, and Oberman v Collins (Ch D) on whether a common intention constructive trust existed over a property portfolio.

Gao on Data Sovereignty & Trade Agreements

Henry S. Gao (Singapore Management University - School of Law) has posted Data Sovereignty and Trade Agreements: Three Digital Kingdoms on SSRN.  Here is the abstract:

For centuries, international lawyers have wrestled with the relationship between national sovereignty and international law. This is also the case of international trade law, where the tension between trade liberalization and national sovereignty culminated in the famous “Great 1994 Sovereignty Debate” between the late Prof. John Jackson and other leading scholars when the WTO came into being.

As we enter the digital age, the issue of sovereignty resurfaced once again in the form of data sovereignty. In this paper, I will examine provisions in trade agreements which deal with data sovereignty issues, such as restrictions on data flow such as internet filtering and censorship; data localization requirements including the requirements to use certain technologies. In particular, the paper will focus on the clash between the US, China, and the EU, which chooses to champion the sovereignty of the firm, the state and the individual respectively. With a critical examination of their relevant policies and positions, the paper will also suggest ways the issue should be dealt with in future trade agreements.

Simon on Gun Sanctuary Ordinances

Sheila Simon (Southern Illinois University School of Law) has posted On Target? Assessing Gun Sanctuary Ordinances That Conflict with State Law (West Virginia Law Review, Vol. 122, No. 3, 2020) on SSRN.  Here is the abstract:

Effingham County, Illinois is at crossroads, with interstate highways that go in every direction. And Effingham County is at an ideological crossroads as well, a mostly rural and Republican county in a state with a large urban and Democratic population. As a state, Illinois has long had restrictions on owning firearms, and tougher restrictions have often been proposed. In 2018, Effingham County went its own way, declaring itself to be a 'gun sanctuary.' In the months after Effingham County’s actions, many Illinois counties enacted similar sanctuary ordinances, and now the majority of the state’s 102 counties have some form of this law. Counties across the country have continued the trend. These local ordinances have no legal impact where they conflict with state law. Even so, these ordinances have an impact in giving voice to areas that feel underrepresented, allowing the democratic process a better chance to function well.

Huffman on the Sharing Economy and Competition

Max Huffman (Indiana University Robert H. McKinney School of Law) has posted The Sharing Economy and Competition (UNCTAD Competition and Consumer Protection Policies for Inclusive Development in the Digital Era 2021) on SSRN.  Here is the abstract:

The chapter deals with the topic of the sharing economy, with an emphasis on ride sharing due to its uniquely broad worldwide absorption and the commodity nature of the services provided. It begins by examining the sharing economy in general, studying its definition, its history, its growth world-wide, and its economic rationale. This introductory discussion observes recent explosive growth driven by instant mass communication combined with either increasing willingness of regulators to accommodate technology-based innovation, or inability of regulators to impede it.

The chapter analyzes the sharing economy as a disruptive force in regulated service sectors. The definitional features of the sharing economy include enterprise structures that may be able to serve as alternatives to public regulation, resolving the trust problem that limits economic activity. The impact of the sharing economy can therefore include overcoming failings in regulation, including corruption and stasis. The chapter recognizes the countervailing problems with privatizing the regulator’s role, including presenting safety and privacy concerns as well as transition costs that uniquely impact participants in regulated markets.

The chapter then analyzes the host of competition policy issues raised by the sharing economy, discuss how jurisdictions have so far handled those issues, and propose best approaches to resolving those issues. Competition policy questions that have arisen or can be expected to include problems in market definition, firm structure, monopolization, and cartelization. These questions, all of which impact the service market in which consumers are affected, have flip-side questions in the labor markets.

Morley on Erroneous Injunctions

Michael Morley (Florida State University - College of Law) has posted Erroneous Injunctions (Emory Law Journal, Forthcoming 2022) on SSRN.  Here is the abstract:

When a federal court concludes that a statute or regulation is unconstitutional or otherwise invalid, it will often enter an injunction prohibiting the government from enforcing it against the plaintiff in that case. But a court will dissolve a preliminary injunction after trial when it concludes that the plaintiff is not entitled to relief on the merits. It will likewise vacate a permanent injunction when subsequent developments in precedent reveal that it misconstrued the relevant legal provisions. And any type of injunction may be overturned on appeal.

Once an erroneously issued injunction has been reversed, vacated, or dissolved, the government may enforce the challenged legal provision against the plaintiff if it violates that provision in the future. It is less clear, however, whether the government may similarly prosecute that plaintiff or impose other punitive measures against it for violating the challenged provision while the injunction was in effect. Despite the centrality of injunctive relief in constitutional litigation, the Supreme Court expressly left this issue unresolved in Edgar v. MITE Corp., with various opinions defending all sides of the issue. Recent scholarship has vigorously advocated such retroactive prosecutions. The Supreme Court has exacerbated the confusion by construing many of the most seemingly applicable defenses—due process “fair notice” restrictions, prohibitions against ex post facto laws, and the mistake-of-law defense—too narrowly to completely bar retroactive punitive enforcement of previously enjoined legal provisions.

This Article offers a new approach. Drawing on traditional equitable principles, including the rules governing injunction bonds as well as criminal contempt proceedings under injunctions that are no longer in force, this Article demonstrates that even injunctions that were issued erroneously and no longer remain in force can continue to impact litigants’ rights. It further explains that federal courts have authority—as a component of both the Article III judicial power as well as the federal equity power—to prevent the federal government and states from taking punitive measures against people for actions performed under the protection of a federal injunction. This Article goes on to examine various ways in which courts may implement this restriction. Injunctions are critical tools for protecting constitutional rights. Courts must shield litigants from the possibility of civil penalties, statutory damages, and criminal prosecution if it turns out that an injunction was issued erroneously.

Shugerman on "Vesting" in the Founding Era

Jed Handelsman Shugerman (Fordham Law School) has posted 'Vesting' Uses in UVA Rotunda Founding Era Collection, 1776-1789 (Stanford Law Review, Vol. 74, Forthcoming 2022) on SSRN.  Here is the abstract:

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible). Many originalists generally tend to assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances.

Unitary judges and scholars, however, have not provided historical evidence that “vest” had such an original public meaning. This spreadsheet is part of "Vesting" (forthcoming, Stanford Law Review 2022), an article offering a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances.

This survey of the word "vest" ("vested," "vesting," etc.) in the Framers’ writings in the University of Virginia's Founding Era Collection (the papers of Washington, Adams, Hamilton, Madison, Jay, and Jefferson, and the Ratification debates) from 1776 to 1789 produces approximately 1,000 different uses. Most of the uses refer to "vesting" by itself as a grant of power, but approximately 10% modify the word "vesting" with words like "fully," "solely," "exclusively," "completely," or "absolutely," or with references to "plenipotentiary" or "all" power (or similar modfiers), specifying a more robust kind of vested power. Conversely, approximately 1% of the uses added words like "limited" or "partial" vesting and the like, specifying a weaker kind of vesting. These uses suggest that the word "vest" by itself did not signify complete or unconditional power, but it needed to be supplemented. This survey indicates a range of usage, from “fully vested” to simply vested to “partly vested,” and uses like "fully vested" appeared frequently in the context of military authority, diplomatic authority, and legislative powers over taxation and commerical regulation, suggesting that some kinds of traditional executive power and legislative power might be more complete, but not all kinds of such powers.

This study of “vesting” in eighteenth-century constitutions and databases of Framers’ writings so that the “all” in the Legislative Vesting Clause may be more legally meaningful and potentially more support for the non-delegation doctrine, but the absence of "all" or similar words from Article II weakens the unitary executive theory of indefeasible executive power.

Eagerly awaiting the article itself.

Spaak on Legal Reasoning

Torben Spaak (Stockholm University) has posted Legal Philosophy and the Study of Legal Reasoning on SSRN.  Here is the abstract:

In this short paper, I shall argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the practice and the study of law. The practice of law is, after all, an argumentative practice. Lawyers and judges aim to provide solutions to concrete legal problems but rarely try to say anything of general application. And although legal scholars take a more general view of things and typically discuss types of legal problems, they, too, tend to prefer a rather piecemeal approach to legal problem-solving, and usually abstain from defending general theories or otherwise speaking in general terms.

But even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, and even though there are many highly talented persons in the above-mentioned groups, neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Perhaps the most important difference is that whereas legal practitioners and legal scholars typically approach reasoning and interpretation in an intuitive way, emphasizing rules of thumb, common sense, and the value of workable legal solutions to problematic cases, philosophers, although they may also reason intuitively and emphasize common sense, often take care to make the logical structure of the relevant argument explicit by formulating as precisely as possible both the conclusion and the premises, and by subjecting the argument thus formulated to close logical as well as substantive scrutiny, where such scrutiny typically involves paying close attention to the content, structure, and function of any relevant concepts.

Against this background, I consider the following three types of questions regarding legal reasoning especially worthy of serious consideration. The first question is that of the relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze (first-order) legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments or inferences are to be understood as deductive or as inductive inferences, or both, and if so how.

Haan on American Shareholder Activism

Sarah C. Haan (Washington and Lee University - School of Law) has posted Is American Shareholder Activism a Social Movement? (International Journal for Financial Services/Revues Internationale des Services Financiers) on SSRN.  Here is the abstract:

This Essay argues that shareholder activism in the United States is a social movement in which middle- and working-class shareholders, and the institutional investors that represent them, are mobilizing to reshape the distribution of power in corporate governance. Across various stages stretching over the last century, the shareholder activism movement has been defined by bursts of collective action challenging the structures of corporate power and the elites atop the corporate hierarchy. Americans have come to view shareholding and stock trading as important modes of resistance to the economic and political status quo and, as a consequence, shareholder mobilization is intensifying.

The social movements approach widens the aperture on corporate governance law as a field of study. The modern American corporate law academy, which has examined shareholder activism mainly through the lens of efficiency and agency costs, has failed to recognize shareholder activism as an evolving process of disruption. The mainstream approach has inhibited corporate law scholars from studying corporate governance as a dynamic system for reconciling economic and socio-political power. That inhibition, in turn, has caused scholars to miss an important process that is currently underway. A social-movements approach suggests that the current surge of activism—led by elite asset managers, with a young, tech-enabled class of retail investors visible on the horizon—is one stage in a sustained movement that stretches back more than a century.

Beswick on Prospective Overruling

Samuel Beswick (Peter A. Allard School of Law, University of British Columbia) has posted Prospective Overruling Offends the Rule of Law (New Zealand Law Journal, pp. 261-262, 267, 2021) on SSRN.  Here is the abstract:

The impressive fifth edition of Joseph on Constitutional and Administrative Law (Thomson Reuters, 2021) reaffirms Professor Philip Joseph’s belief that “prospective-only relief remains an untapped option in judicial review”. This supposed option entails “limiting the retrospective effect of judicial decisions” that ordinarily applies to case law (Chamberlains v Lai). Joseph contends that this unorthodox doctrine “work[s] practical justice” on the basis of views he set out in “Constitutional Law: Prospective Overruling” (2006) NZ L Rev 138. In that article, Joseph advances three claims: that the retrospective effect of judicial decisions is “perplexing[ly]” premised on the “grand fiction” of the declaratory theory of adjudication; that the “orthodox legal method” of judges overruling rules with retrospective effect “offends the concept of the rule of law”; and that the solution to this perplexing problem lies with the doctrine of prospective overruling, which courts should liberally employ: prospective overruling should not be “an exceptional recourse for special and deserving cases only” since “[a]s a general prescription, legal change should be prospective”. Similar sentiments are expressed in J Wall “Prospective Overruling—It’s about Time” (2009) 12 Otago L Rev 131 at 131–132, 140 and S Laws “How to Address the Breakdown of Trust Between Government and Courts” (Policy Exchange, 2021) 44.

These are dangerous claims. The declaratory theory is instructive not as “an historical explanation” but as a statement of the judicial responsibility to say what the law is. Judges who employ orthodox legal method are no more obstacles to the rule of law than they are “enemies of the people” – the claim erroneously impugns the legitimate role of an independent judiciary. It is the so-called doctrine of prospective overruling that offends the rule of law. The doctrine “crosses the Rubicon that divides the judicial and the legislative powers. It turns judges into undisguised legislators” (Lord Devlin “Judges and Lawmakers” (1976) 39 MLR 1 at 11).

Prospective overruling is an unorthodox doctrine – an exception to the norm of judicial retrospectivity – which is why it is not generally employed by courts. Australia has rejected it. The United States Supreme Court has abandoned it. United Kingdom courts do not favour it. In New Zealand, two judgments this year considered the doctrine, but no court (yet) has adopted it. In Department of Corrections v Gardiner, Miller J thought that “the position in New Zealand is that prospective-only overruling remains an open question”. While Joseph’s scholarly corpus is invaluable to the comprehension and the development of New Zealand’s constitutional law, his answer to this particular question must be rejected. The doctrine of prospective overruling contravenes the common law judicial method by preventing the court’s considered understanding of the law that governed the parties before it from actually applying to the parties’ dispute. It empowers judges to declare what they think the law should be going forward, rather than constraining judges to declare what the law is. Prospective overruling affords judges quasi-legislative power, which they do not and should not exercise.

Sunstein on Evaluating Behaviorally Informed Interventions

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) has posted On the Evaluation of Behaviorally Informed Interventions on SSRN.  Here is the abstract:

In evaluating behaviorally informed interventions, policymakers should consider both their welfare effects (including, for example, their potentially negative effects on subjective well-being) and their effects on distributive justice (including, for example, their potentially negative effects on those at the bottom of the economic ladder). Four specific questions are relevant: (1) What are the aggregate effects on social welfare? For purposes of evaluation, it is tempting to focus on increases in participation rates or on cost-effectiveness. The welfare question is much more important, though it raises serious normative, conceptual, and empirical challenges. (2) Who is likely to be helped and who is likely to be hurt? This is a plea for a distributional analysis of the effects of behaviorally informed interventions. (3) What are the expected effects on the least well-off? It is important to ask whether the relevant interventions help or hurt those who have the least, defined in terms of welfare, a point that is connected with “prioritarianism.” (4) Do the benefits to those who are helped exceed the costs to those who are hurt? If the gainers gain more than the losers lose, we have a strong point in favor of the intervention. But the point might not be decisive if, for example, the gainers are well-off to begin with, and the losers are not. The four questions are meant as an objection to efforts to evaluate behaviorally informed interventions in terms of (for example) effects on participation rates; as a plea for analysis of the distributive effects of such interventions; and as a plea for specification and investigation of their welfare effects.

Recommended.

Widen & Koopman on Autonomous Vehicle Regulation & Public Trust

William H. Widen (University of Miami - School of Law) & Philip Koopman (Carnegie Mellon University) have posted Autonomous Vehicle Regulation and Trust (UCLA Journal of Law and Technology, 2022, Forthcoming) on SSRN.  Here is the abstract:

The autonomous vehicle (AV) industry works very hard to create public trust in both AV technology and its developers. Building trust is part of a strategy to permit the industry itself to manage the testing and deployment of self-driving vehicle technology without regulatory interference. The AV industry supplements its appeal for trust by extolling a plethora of public benefits that AV technology supposedly will bring to society.

In this article, we examine the behavior of certain AV industry participants in various concrete situations, considering whether actions by these AV industry participants promote trust or, conversely, create concerns. To evaluate whether a particular action promotes trust, we consider both common sense intuitions as well as recommendations contained in three publications with intended global applicability: (i) the recently published IEEE Standard Model Process for Addressing Ethical Concerns during System Design (IEEE 7000); (ii) Ethics Guidelines for Trustworthy AI; and (iii) Policy and Investment Recommendations for Trustworthy AI. These publications inform our analysis of practices that merit trust (and helps us identify those that do not).

Our analysis identifies certain trust destroying practices, suggesting that the public should not accept either AV industry appeals for trust or take at face value the proffered narrative of benefits. We perceive a need for more regulation by federal, state and local governments. Despite our concerns, we discuss how the AV industry might earn trust by changing its adversarial approach to law, regulation and disclosure, starting by compliance with standards promulgated by the engineering community. AV industry participants should shift to cooperation with lawmakers and regulators by embracing engineering standards relating to safety, such as SAE J3018, and ethical principles which promote trust, such as identified in IEEE 7000. SAE J3016 should be replaced as a regulatory standard by a simpler rubric which promotes safety with less complexity. Cooperation might take place by use of negotiated rulemaking.

Hartzog on Solove on Privacy

Woodrow Hartzog (Northeastern University School of Law and Khoury College of Computer Sciences; Center for Law, Information and Creativity (CLIC); Stanford Law School Center for Internet and Society) has posted What is Privacy? That's the Wrong Question (88 The University of Chicago Law Review 1677 (2021)) on SSRN.  Here is the abstract:

Privacy has never had a precise meaning. But in the early 1900s, the concept took on new life as a term of art in legal frameworks. The result has been a bit of a mess, as no singular definition has been adequate for all purposes. Daniel Solove, perhaps the most influential privacy scholar of our day, wrote at the turn of the millennium that privacy was “a concept in disarray.”

In this short essay reflecting upon Solove’s impact on the modern study of information privacy, I argue that the chaos and futility of competing conceptualizations of privacy is why Solove’s research on privacy has been so important. Solove has reshaped the entire narrative around privacy by suggesting that we stop obsessing over what privacy is and start asking what privacy is for. His contributions have profoundly influenced the privacy debate by dispelling the notion that privacy is only important to people with “something to hide.” He cast doubt upon people's ability to engage in “privacy self-management.” He introduced new narratives for industry’s data processing efforts that are closer to a Kafkaesque byzantine bureaucratic nightmare than Orwellian dystopian surveillance. He helped usher in the algorithmic turn in privacy scholarship and enriched our understanding of the full spectrum of privacy harms. Perhaps most importantly, Solove’s work provides a structure that frees scholars and lawmakers of the burden of finding one, singular notion of privacy to rule them all.

Privacy is still a concept in disarray. But that’s okay. There is now too much data that is collected by too many different entities and used in too many different ways for any singular definition of privacy to be legally useful anyway. Daniel Solove’s work on understanding privacy has imposed order upon chaos, shifting our focus away from questions about what privacy is and toward the different problems we want our privacy rules to address and the specific values we want them to serve.

Cohen-Almagor on Multiculturalism

Raphael Cohen-Almagor (University of Hull; University of Hull - Middle East Study Group) has posted A Theory of Just, Reasonable Multiculturalism (LSE Europblog 2021) on SSRN.  Here is the abstract:

Is multiculturalism incompatible with the protection of liberal values? Drawing on a new book, Raphael Cohen-Almagor presents a theory of just, reasonable multiculturalism that is capable of reconciling these two apparently competing strands.

Foran on "The Constitutional Balance" by Laws

Michael P. Foran (University of Strathclyde) has posted Review: Laws, The Constitutional Balance (Hart 2021) (Michael Foran, "Review: Laws, The Constitutional Balance (Hart 2021)" Edinburgh Law Review (Forthcoming)) on SSRN.  Here is the abstract:

A Review of Sir John Laws, The Constitutional Balance (Hart 2021).

cummings on Meek Mill & Childhood Trauma

andré douglas pond cummings (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Trauma (Fight the Power: Hip Hop Law & Policy; Cambridge University Press, Forthcoming) on SSRN.  Here is the abstract:

Meek Mill’s life and career have been punctuated by trauma. From childhood through his current adulthood, Mill has experienced excruciating trauma even as a well-known hip hop artist. In 2018’s track of that name Trauma, Mill describes in illuminating prose just how these traumatic experiences harmed and impacted him personally describing the very same harms that impact so many similarly situated young black people in the United States. Meek Mill, as a child, witnessed violent death and experienced poverty while as a young man he was arrested and incarcerated (wrongly). Despite his star turn as a true hip hop icon, Meek Mill has suffered the kind of childhood trauma that emerging health care research indicates leads to debilitating outcomes in adults.

Powerful health studies conducted over the past two decades have uncovered the startling impact of Adverse Childhood Experiences (ACEs). ACEs are traumatic events that occur in childhood, ranging from abuse and neglect to other traumatic experiences derived from household and community dysfunction. Today, ACEs are generally placed by health researchers into nine categories of childhood adversities ranging from sexual, physical, and emotional abuse to incarceration of a family member, living with someone who abuses alcohol or drugs, and poverty, community violence, and homelessness. These identified traumas, although not fully understood or even grasped as late as the 1990s, were known to occur; however, the overall impact of childhood trauma on an individual’s long-term health outcomes was only first measured in the now famous CDC-Kaiser Permanente ACE study. The findings of this first ACE study shook the health care world, forever altering the understanding of the link between childhood trauma and adult health outcomes. These links would push researchers to look more deeply into the ultimate impact of traumatic childhood experiences on overall adult health. The study concluded that the more trauma a child experiences, the fewer years that child would live as an adult. Stated differently, CDC researchers determined that exposure to childhood trauma literally shortens an individual’s lifespan; in fact, on average, a person with six or more ACEs died twenty years earlier than a person that had experienced no Adverse Childhood Experiences.

Meek Mill, in his autobiographical Trauma, describes experiencing not just several instances of childhood trauma as identified by the CDC-Kaiser Permanente study, but when a teenager, he suffered cruel trauma at the hands of US police and a criminal justice system that wrongly imprisoned and unfairly positioned him in a revolving door between probation and prison. This trauma suffered by Mill as a child and teenager statistically predicts a poorer life expectancy than those individuals that experienced no trauma or little trauma as a child and youth. Because of the anti-Black culture of policing in America, and because of the deep systemic racism that permeates the criminal justice system, simple exposure to US policing and its courts should qualify as an Adverse Childhood Experience for black and minority children – one that contributes to harmful adult outcomes, including a shortened life expectancy. Mill’s personal childhood trauma as described in his Trauma carefully extrapolates the ways that American policing and the criminal justice system literally traumatized and endangered his young Black life. As it does so many Black children.

This chapter will trace the evolution of health care research that ultimately identifies childhood trauma as one of the most significant indicators of adult quality of life, health outcomes, and life expectancy. Thereafter, the chapter will explore the childhood trauma described as experienced by Meek Mill in Trauma, and extrapolate that trauma onto the common experience of numberless Black American children and youth. Finally, the chapter will introduce a childhood trauma that is mostly ignored by health care research but is nearly exclusive and deeply traumatic to African American youth in the United States: that of simple exposure to American policing in the United States and its concomitant direct interaction with the criminal justice system.

Schwartz on Treanor on Gouverneur Morris

David S. Schwartz (University of Wisconsin Law School) has posted Gouverneur Morris, The Committee of Style, and the Federalist Constitution: A Commentary on Treanor's 'Dishonest Scrivener' on SSRN.  Here is the abstract:

Dean William Treanor's masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding. He uncovers a body of constitutional interpretations favored by advocates of a strong national government and emphasized by the Federalist party in the early decades of politics and policy under the Constitution, raising significant questions about present-day originalism in the process. Treanor particularly emphasizes how Constitutional Convention delegate Gouverneur Morris, acting as primary draftsman on the 'Committee of Style' which put the finishing touches on the draft 'Constitution' crafted language favorable to Federalist interpretations. But Treanor disserves his otherwise compelling argument with a narrative that portrays Morris as a 'dishonest scrivener' who 'smuggled in' substantive revisions to impose his own views, presumably against the will of an inattentive Convention majority. This narrative framing 'not sustained by the available evidence' digresses from Treanor's core argument, and works against it. A better interpretation of the historical evidence is that the Committee of Style draft had broad support and made no substantive revisions that escaped the notice of the Convention. The fifteen revisions by the Committee of Style cited by Treanor do not support the charge of 'dishonest scrivening'. Ultimately, we can dismiss the 'dishonest scrivener' narrative, while recognizing Treanor's valuable, core insights that Morris was a key player at the Convention and that the Committee of Style reinforced Federalist understandings of the original Constitution.

Highly recommended.

Pojanowski & Miller on the Internal Point of View & Private Law

Jeffrey A. Pojanowski (Notre Dame Law School) & Paul B. Miller (Notre Dame Law School) have posted The Internal Point of View in Private Law (American Journal of Jurisprudence, Volume 67 (forthcoming 2022)) on SSRN.  Here is the abstract:

Many leading private law theorists claim to analyze private law from an internal point of view; a vantage point within which private law doctrine, institutions and procedure enjoy pride of place. Private law theory of a generation ago distinguished the internal from external points of view, valorizing the former and criticizing the latter for ignoring the normativity of private law or for mistaking private law for public law or regulation. The New Private Law, by contrast, asserts the complementarity of internal and external points of view, partly by emphasizing the value of functionalist analyses of legal form. In this article, we canvas leading accounts of the internal point of view in private law (provided by corrective justice and civil recourse theorists, respectively) and identify their shortcomings: notably, their inability to ground assertions about the normative and explanatory priority of the internal point of view, and about its relationship (whether of exclusivity or complementarity) to external points of view. We offer an alternative, and we think better, rendering of the internal point of view, drawing on the work of John Finnis. Amongst other things, our account vindicates the New Private Law’s alluring but elusive promise of perspectival integration, showing how private law may be understood as an interlocking set of practices of public practical deliberation equally concerned with reasoned compliance and behavioral conformity with practically reasonable laws.

Highly recommended.