Legal Theory Blog

Kullmann on Platforms & a Presumption in Favor of the Employment Relationship

Miriam Kullmann (Vrije Universiteit Amsterdam; Harvard University Weatherhead Centre for International Affairs) has posted ‘Platformisation’ of Work: An EU Perspective on Introducing a Legal Presumption (European Labour Law Journal) on SSRN.  Here is the abstract:

This contribution focuses on the benefits and limitations of introducing a rebuttable legal presumption in EU labour law as an evidentiary means to improve the working conditions of platform workers. In doing so, I will, first, offer some remarks on rebuttable legal presumptions in general, while also offering some comparative legal insights (section 2.), before exploring their potential benefits and limitations in the context of EU labour law in general and platform work in particular (section 3.). This is followed by an analysis of how such a presumption could be integrated in the current EU social acquis (section 4.).

Marinett on Platform Policy & Offline Abuse

Matthew Marinett (University of Toronto, Faculty of Law) has posted The new frontier of platform policy ((2021) 10:3 Internet Policy Review) on SSRN.  Here is the abstract:

Platform policies aimed at the misbehaviour of users that occurs off of the platform, especially offline abuse, are a relatively new and understudied phenomenon that may represent a new frontier of platform policy. Policies of this nature may be necessary to create healthy online communities, but they raise unique problems in comparison to on-platform content moderation that exacerbate existing concerns about the accountability and transparency of platforms.

This article provides the background and context for the development of such policies through the case study of Twitch.tv. It then discusses three unique challenges raised by the creation and enforcement of policies aimed at off-platform abuse. These are 1) the need for investigation and verifying evidence, 2) the difficulty of balancing the privacy of all parties with a fair process, and 3) the increased potential adverse impacts of error. It argues that current policies are opaque and offer few guarantees to either complainants or the targets of complaints. Further steps, especially greater transparency and broader consultation, must be taken to ensure accountability to users and the public when such policies are implemented.

Linden-Retek on Safe Third Country & Human Rights

Paul Linden-Retek (Yale Law School; University at Buffalo School of Law; Jean Monnet Center for International and Regional Economic Law & Justice) has posted ‘Safe Third Country’: A Theory of a Dangerous Concept and the Democratic Ends of International Human Rights on SSRN.  Here is the abstract:

This article develops a critique of the ‘safe third country’ concept in international asylum law. Thus far, a rich scholarly literature has scrutinized the concept within a particular analytic frame: that of individual rights protection. Focusing on effects of STC rules in EU and N. American jurisdictions, the article proposes a change in perspective. The change reconceives the fundamental harm of ‘safe third country’ as a violation not, in the first instance, of individual rights but instead of the principle of democratic responsibility. The wrong is better conceptualized as a relational and distributive harm before it is felt as an individual one: relational in that it changes the character of the relationship between removing states and individual refugees; and distributive in that it unfairly maldistributes responsibilities among states for the protection of refugee rights. The article details this analytic shift’s consequences for vertical and horizontal dimensions of asylum law. In so doing, it emphasizes an essential, though strangely neglected purpose of international human rights law more generally: the democratic responsibility of states.

Smith on Copyright & Memes

Cathay Smith (The University of Montana Alexander Blewett III School of Law) & Stacey Lantagne (University of Mississippi School of Law) have posted Copyright & Memes: The Fight for Success Kid (110 Georgetown Law Journal Online (forthcoming)) on SSRN.  Here is the abstract:

This Essay explores the complicated relationship between memes and copyright. Internet memes have become a ubiquitous part of social communications. They effectively express an idea, message, or sentiment, often more humorously and efficiently than words. Most memes evolved from original content that internet users found online and copied, altered, shared, and imbued with new cultural and social meaning. Because memes frequently involve the unauthorized use, alteration, and sharing of a content creator’s original image or photograph, they naturally implicate the content creator’s copyright. But who owns a meme? What rights, if any, does the creator of the original content have in a meme derived from their work? What rights, if any, do the users of the meme have? This Essay examines a current copyright case Griner v. King, involving the unauthorized use of the highly popular Success Kid meme, to explore doctrinal uncertainties involving copyright authorship and ownership, abandonment, social media sharing and implied licensing, and fair use in internet memes.

Dorfman on the Conflict Theory of tort Law

Avihay Dorfman (Tel Aviv University - Buchmann Faculty of Law) has posted The Work of Tort Law on SSRN.  Here is the abstract:

Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two conceptions of tort law appear to dominate the ways we should understand and discharge these tasks. One conception takes tort law to be the law of wrongs whereas the other conception equates tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be that of identifying the nature of the conflict to which it responds (or shapes). In fact, there are three of them: Inherently valuable, tolerably valuable, and valueless conflicts. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to organizing activities at the physical workplace.

Highly recommended. 

Bliss on NAACP Lawyers & Fair Housing Litigation

John Bliss (University of Denver Sturm College of Law) has posted Rebellious Lawyers for Fair Housing: The Lost Scientific Model of the Early NAACP (Wisconsin Law Review, Forthcoming) on SSRN.  Here is the abstract:

Historically-rooted patterns of racial segregation in housing remain a significant contributor to racial inequities in health, intergenerational wealth, and life chances more generally. This article uncovers a powerful but long-forgotten model for rebellious lawyers in the struggle for fair housing. I draw this model from archival research into the innovative early NAACP lawyers who litigated racially restrictive covenants from the 1910s to the 1940s. Facing a hostile judiciary, and with little legal precedent on their side, these lawyers turned their attention to a fundamental conceptual obstacle to their cause: what they termed “property in a sociological vacuum.” In this view, property ownership as an entirely private manner unrelated to the public interest and social context more generally. Under the vacuum logic, segregationist lawyers had convinced the courts that supporting racial covenants was a racially innocent defense of white homeowners’ property rights. The early NAACP lawyers countered this vacuum understanding of property by radically departing from the conventional norms of legal advocacy. In their briefs and oral arguments, they refuted the vacuum view on theoretical grounds and backed up their position with social-scientific findings that mapped out the pervasive use and devastating impacts of racial covenants in communities of color. Courts had never before been presented with such an enormous trove of social scientific research in civil rights litigation. This strategy reached full expression in Shelley v. Kraemer (1948), the land US Supreme Court decision that rendered racially restrictive covenants unenforceable.

Shelley is a well-studied staple of the 1L curriculum, but legal history has largely ignored the decades of legal efforts that made it possible. This article traces that history in detail. I show how NAACP affiliated lawyers identified the vacuum view of property as a central target in their litigation strategy and then worked with academics and other social movement allies to develop a vast body of empirical research. This strategy enabled these lawyers to fill the sociological vacuum around property. In this way, they forced the judiciary to see that racial covenants were more than purely private instruments of individual landowners but rather had formed a pervasive land policy of racial apartheid, slum conditions, and excluding people of color from homeownership. I conclude by arguing that this “lost scientific model” should be emulated by today’s fair housing lawyers, who continue to encounter the vacuum view of property as a core theoretical obstacle to racial integration and inclusion.

Peterson on Conflicts of Interest & the Administrative State

Jordan Carr Peterson (North Carolina State University) has posted Serving Two Masters? Public Ethics and the Regulation of Financial Conflicts of Interest in the Administrative State (Albany Law Review, Forthcoming) on SSRN.  Here is the abstract:

Federal law regulates financial conflicts of interest via a legion of mechanisms, including criminal prohibitions on self-dealing, mandatory financial disclosure requirements for federal officials in all branches of government, and administrative provisions that demand disqualification or divestiture of assets, to name a few. While certainly complicated, however, the current law governing conflicts of interest is underinclusive in scope and inconsistent in execution. Indeed, the extant regulations may permit as many conflicts as they deter.

Because conflicts of interest create immense complications for public legitimacy, regulations of financial conflict seek to limit both actual and apparent conflict for officials in the federal executive branch. Despite this aspiration, officials in federal administration encounter no uniform legal prohibition on owning investments that, while not the direct object of administrative action, may nevertheless fluctuate in value as a proximate result of agency choices. These penumbral financial conflicts of interest may jeopardize the integrity of the administrative state.

This Article offers a critique of the present regulations governing financial conflicts of interest and uses original data on the personal finances of executive branch officials to assess penumbral conflicts of interest in federal administration. Through a multi-method empirical investigation that employs both observational and natural experimental analyses, the Article suggests that penumbral financial conflicts of interest should beget significant but resolvable concerns about the current state of public ethics in the executive branch.

Cooney on Market-Based Causation

Henry Cooney (The University of Western Australia) has posted Factual Causation in Cases of Market-Based Causation ((2021) 27(1) Torts Law Journal 51) on SSRN.  Here is the abstract:

Causation serves as a requirement for the imposition of liability in a multitude of private law contexts. Recently, when dealing with requirements of causation imposed by statutory schemes proscribing misleading or deceptive conduct, Australian courts have considered the possibility of a plaintiff arguing a ‘market-based’ theory of causation. This article aims to explore and clarify the factual causation enquiry in a case of market-based causation. Particular attention is given to the appropriate test of causation in a case of market-based causation. This article argues that, when considering whether a plaintiff’s loss was caused by a defendant’s conduct through a market-based causal chain, the appropriate test of causation is the ‘a factor’ test. In doing so, this article challenges the approach taken in recent cases involving market-based causation and misleading or deceptive conduct.

Ruben on the Meaning of Arms in the Second Amendment

Eric Ruben (SMU Dedman School of Law) has posted The Gun Rights Movement and “Arms” Under the Second Amendment on SSRN.  Here is the abstract:

What is an “arm” under the Second Amendment? The Supreme Court has signaled that arms encompass more than just guns, including less lethal alternatives to guns. But for many Americans, the term signifies guns alone. This essay explores the role of the gun rights movement in equating arms and guns, describes how it reflects neither law nor weapons practices, and contends that it could contribute to unduly expansive gun rights. On the eve of the next big Second Amendment case at the Supreme Court, New York State Rifle and Pistol Association v. Corlett, the time is now to put guns and gun rights into a broader perspective.

Monea on the Constitutional History of Debtors' Prisons

Nino Monea (United States Army, Judge Advocate General's Corps) has posted A Constitutional History of Debtors' Prisons (14 Drexel L. Rev. __ (2021)) on SSRN.  Here is the abstract:

In 1776, only two states offered constitutional protections against imprisoning people for debt. Today, forty-one states do. This Article traces that history. It begins by examining how debtors’ prisons operated in early America, and then divides analysis between three phases of state constitutional activity. In so doing, it looks at the arguments that won over states to protect debtors, the state constitutional conventions that enacted protections, and the failure of the federal government to address the issue. The Article concludes by noting that despite the success of adopting constitutional protections, courts have allowed debtors’ prisons to resurge in modern times.

Elengold & Glater on Federal Contractors & Sovereign Immunity

Kate Elengold (UNC School of Law) & Jonathan Glater (University of California, Los Angeles (UCLA)) have posted Qualified Sovereignty (Washington Law Review, Forthcoming) on SSRN.  Here is the abstract:

Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required to qualify before it can derive the immunity enjoyed by its sovereign partner. This Article proposes that a private contractor be entitled to such “qualified sovereignty” only if it satisfies three conditions: (1) it was acting as the government’s agent, (2) it complied with any guidelines established by the government, and (3) it was reasonable for the contractor to believe that its conduct would not violate rights protected by law. Adopting its scaffolding from two embattled doctrinal constructs—derivative sovereign immunity and qualified immunity—qualified sovereignty balances the rights of victims to recover for harms with protection for private entities from unforeseen liability incurred at the government’s explicit and lawful direction.

Zoldan on Conversation & Statutory Interpretation

Evan C. Zoldan (University of Toledo College of Law) has posted The Conversation Canon (Kentucky Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Should a judge interpret a statute like it is a conversation between friends? Judges sometimes do just that, searching for the meaning of statutory language in a variety of nonlegal sources, including transcripts of conversations. Although this method of interpretation is common, scholars and judges have failed to identify it and consider its consequences. This Article identifies the practice as a canon of statutory interpretation: the Conversation Canon. But, although it is a canon, it is a bad one. Because it leads to unpredictable results, fails to constrain the interpreter, and undermines important public values, the Conversation Canon is normatively unattractive and should be avoided.

Very interesting and recommended.

For explicit discussion of the relationship between the interpretation of conversations and the interpretation of statutes and other legal texts, see Disaggregating Chevron, especially 278-286.

Bliss on Secret Client Recording

John Bliss (University of Denver Sturm College of Law) has posted The Legal Ethics of Secret Client Recording (Georgetown Journal of Legal Ethics, Vol. 33, 2020) on SSRN.  Here is the abstract:

Is it professional misconduct for a lawyer to record lawyer-client conversations without providing notice? When this question hit the national headlines with the summer 2018 release of Michael Cohen's recordings of Donald Trump, an unresolved area of legal ethics doctrine was brought to public attention. The ABA's current position is that the Standing Committee is "divided" and unable to offer a disciplinary standard on secret client recordings. This ambivalence is reflected in the lack of consensus across U.S. jurisdictions. Amid recent transformative developments in recording technology, and heated public debate about the risks and benefits of secret recording, the bar can no longer afford to avoid this issue.

In the prevailing doctrinal framework, secret client recordings are prohibited when they constitute deceit in violation of the widely adopted Model Rule 8.4(c). As recording technology has grown more pervasive, the bar has increasingly concluded that secret recording is no longer deceitful-under the assumption that people no longer feel that they were deceived when they learn that they were recorded without notice. Yet, even if the deceit rationale for prohibiting secret recording is in decline, this Article argues that secret recording of clients deserves a separate analysis drawing on client-specific professional duties that weigh heavily against the practice. The Article concludes by assessing the exceptional circumstances where such recordings might be justified by exigent public-interest purposes. This analysis revisits and sheds new light on the fundamental tension between lawyers' duties to clients and the public.

Secunda on Portable Retirement Benefits

Paul M. Secunda has posted The Emerging Law of Portable Retirement Benefits (Chicago-Kent Law Review, Vol. 95, No. 1, 2020) on SSRN.  Here is the abstract:

Alt-labor and the sharing economy have recently come to dominate the writings of labor and employment law scholars. Misclassification, union organizing, and wage and hour issues, have all been scrutinized as emerging issues for those who engage in alt-labor activities. In all this scholarship, the authors have mostly concerned themselves with workers who have precarious, less-than-full-time jobs in the new global economy of the early 21st century, and all of whom are seeking ways to improve their work conditions through organizing and other collective action outside the formalized collective bargaining process.

One of the less discussed, but equally important, alt-labor topics concerns the provision of retirement work benefits for the self-employed, workers at small businesses, as well as those in the precarious and gig-oriented American workforce. Indeed, an increasing number of these workers will lack adequate retirement savings in the decades to come. This state of affairs exists in part because being labeled “independent contractors” or some other form of non-employee status is of utmost importance in the American workplace. Such classifications largely determine whether
workers are covered by U.S. employment laws, as such laws center on the existence of an employer-employment relationship. Because American employers are increasingly seeking to define many workers as “independent contractors” or non-employees, these workers have little to no access to retirement plans. In turn, this is critical because, according to AARP, Americans workers are fifteen times more likely to save for retirement when they are covered by a workplace retirement plan.

The thesis of this article is two-fold. First, self-employed, small business, and precarious workers must be considered common law employees under employee benefits law so that they can receive the consumer protections and the appropriate template of an approved retirement plan structure provided by ERISA. Second, under ERISA, these workers will most-likely receive meaningful access to retirement plans through the use of Open MEPs operated by PEOs. As this paper goes to press, Open MEPs run by PEOs have become a reality with the passage of the Setting Every Community up for Retirement Enhancement Act of 2019 (SECURE Act of 2019). It will be important to educate, and give incentive to, employers who currently do not provide employment-based retirement benefits to consider joining one of these new employee benefit plan structures.

Loehndorf on Solum on Originalism

Alexander Loehndorf has posted In Originalism's Stead: Old Constitutions and Originalism's Normative Foundations on SSRN.  Here is the abstract:

This thesis concerns a philosophical analysis of originalism in a context that has not yet received sufficient attention: in the context of old constitutional regimes. Through this lens, I argue that originalism becomes something lesser in that both the normative justification and legitimacy originalism once held begins to withdraw from the theory’s principled commitments. In other words, the nature of old constitutions begins to reject a normative argument for an originalist approach. The thesis bases this analysis on one originalist theory in particular for the sake of brevity: Lawrence Solum’s public meaning originalism. It proceeds through two avenues of argument: originalism as it relates to 1) historical analysis and the interpretation-construction distinction and 2) stare decisis and democratic legitimacy. Taken together, these avenues point to originalism’s fading normative justification and legitimacy in light of the challenges that old constitutions and their characteristics pose for the judicial philosophy.

I look forward to reading this!

Black on a Constitutional Right to Education

Derek W. Black (University of South Carolina - School of Law) has posted Freedom, Democracy, and the Right to Education (Northwestern University Law Review, Vol. 116, No. 4, 2022) on SSRN.  Here is the abstract:

While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African Americans, seeing education as the means to both mental and physical freedom, made extraordinary efforts to secretly acquire it. After the War, their efforts morphed into a full-fledged public education movement. Congress, aiming to remedy slavery and repair democracy itself, responded by requiring confederate states to guarantee education in their state constitutions. The rest of the nation followed shortly thereafter.

This Article analyzes this history through the Thirteenth Amendment, the Fourteenth Amendment, the Guarantee Clause, and subsequent judicial precedent. It demonstrates, first, that the Constitution has long protected a negative right to education—the freedom to pursue learning without state interference. Second, it reveals how that negative right transformed into an affirmative one in the years immediately following the Civil War. By anchoring the right to education in multiple constitutional provisions, this Article demonstrates that the right to education permeates the very fabric of our constitutional democracy.

Rice on Repugnant Precedents

Daniel B. Rice (Duke University School of Law) has posted Repugnant Precedents and the Court of History on SSRN.  Here is the abstract:

The Supreme Court’s precedents continue to tolerate many practices that would shock modern sensibilities. Eugenic sterilization, race-based naturalization, forced labor on public roads, the conscription of child soldiers, and the exclusion of non-heterosexual immigrants all remain ostensibly valid policy options. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very societal shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot satisfactorily explain what ails culturally outmoded decisions. Even for Justices inclined to condemn these cases in less clinical terms, it is unclear what qualifies courts to make universalist claims about America’s deepest values.

The Court recently sidestepped these difficulties by insisting that one of its most reviled decisions had been “overruled in the court of history.” In substituting rhetorical flair for analytical precision, however, the court-of-history trope threatens to destabilize the Court’s doctrines of horizontal and vertical precedent. This Article urges greater normality in implementing perceptions of national ethos. It first defends the inquiry’s legitimacy by recovering a longstanding judicial tradition of pronouncing specific practices abhorrent to American values. It then underscores the project’s stakes by identifying an assortment of precedents that trudge along as ethical outcasts. After highlighting various tangible and expressive harms that these decisions can still inflict, I propose that the Court integrate its ethical judgments into the existing stare decisis framework. And I challenge the Court’s presumed incapacity to dislodge vestigial precedents. These relics may be difficult to pry loose, but we are not stuck with them forever.

Wright on Liability & Causation

Richard W. Wright (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Identifying and Assigning Liability Among Multiple Legally Responsible Causes (Rechtstheorie Journal 2021) on SSRN.  Here is the abstract:

This paper, forthcoming in the Rechtstheorie journal, discusses the development of the NESS analysis of natural causation in philosophy and law and (relatedly) the failure of the but-for/sine-qua-non test as an exclusive test, responds to criticisms of the NESS analysis, notes general acceptance of the NESS analysis by academics and increasingly by courts made aware of it, distinguishes the natural causation issue from the legal responsibilty and ultimate liability issues, and briefly discusses the legal responsibiliy and ultimate liability issues.

If you haven't read Wright on causation, this paper is a good place to start. NESS = Necessary element of a sufficient set.

Fineman on Vulnerability Theory & Pandemics

Martha Albertson Fineman (Emory University School of Law) has posted Populations, Pandemics, and Politics on SSRN.  Here is the abstract:

This is the lead essay in the Special Issue: "Lessons For and From Vulnerability Theory," of the International Journal of Discrimination and Law.

Discussions about social justice and governmental responsibility are often framed in abstract terms, referencing aspirational concepts such as “equality” or “autonomy.” While this is particularly evident in law, grand narratives also shape policies related to public health and welfare, as well as many other areas that overlap with law. Of specific interest in the context of this collection is the idealized rendition of the body that permeates these grand narratives. In law, as well as in political theory, philosophy, economics, and ethics, the body is abstracted to the point that its material realities and their implications for social policy can be conveniently ignored.

The pandemic has disrupted, even discredited, dominant political narratives, which minimized or ridiculed the need for safety nets and other social welfare policies. COVID-19 has forced a consideration of the inescapably and uncomfortably concrete into public consciousness, opening up the possibility for a revisioning of our thinking about both individual and societal requirements and responsibilities. Fortunately, vulnerability theory presents a constructive and needed alternative to the traditional paradigm for thinking about the nature of the state and its social institutions and relationships in this post-pandemic reality.

Peterson on Conflicts of Interest & the Administrative State

Jordan Carr Peterson (North Carolina State University) has posted Serving Two Masters? Public Ethics and the Regulation of Financial Conflicts of Interest in the Administrative State (Albany Law Review, Forthcoming) on SSRN.  Here is the abstract:

Federal law regulates financial conflicts of interest via a legion of mechanisms, including criminal prohibitions on self-dealing, mandatory financial disclosure requirements for federal officials in all branches of government, and administrative provisions that demand disqualification or divestiture of assets, to name a few. While certainly complicated, however, the current law governing conflicts of interest is underinclusive in scope and inconsistent in execution. Indeed, the extant regulations may permit as many conflicts as they deter.

Because conflicts of interest create immense complications for public legitimacy, regulations of financial conflict seek to limit both actual and apparent conflict for officials in the federal executive branch. Despite this aspiration, officials in federal administration encounter no uniform legal prohibition on owning investments that, while not the direct object of administrative action, may nevertheless fluctuate in value as a proximate result of agency choices. These penumbral financial conflicts of interest may jeopardize the integrity of the administrative state.

This Article offers a critique of the present regulations governing financial conflicts of interest and uses original data on the personal finances of executive branch officials to assess penumbral conflicts of interest in federal administration. Through a multi-method empirical investigation that employs both observational and natural experimental analyses, the Article suggests that penumbral financial conflicts of interest should beget significant but resolvable concerns about the current state of public ethics in the executive branch.

Chabot on the Unitary Executive

Christine Kexel Chabot (Loyola University Chicago School of Law) has posted Interring the Unitary Executive on SSRN.  Here is the abstract:

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.

Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

Tang on Originalism & Abortion

Aaron Tang (University of California, Davis - School of Law) has posted The Originalist Case for an Abortion Middle Ground on SSRN.  Here is the abstract:

Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.

It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.

After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.

To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.

Donohue on Wireless Access to Cell Site Information, Precedent, & Original Meaning

Laura Donohue (Georgetown University Law Center) has posted Functional Equivalence and Residual Rights Post-Carpenter: Framing a Test Consistent with Precedent and Original Meaning (Supreme Court Review, Vol. 2018, Pp. 347-410) on SSRN.  Here is the abstract:

The Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to further chaos and fragmentation. To take account of the significant challenges ahead, this article proposes that, going forward, courts eschew voluntary assumption of risk. An outgrowth of open space and informant doctrines, the approach imported analogical fallacies into the Court’s jurisprudence and ignored the implications of new technologies. Instead, the Court should return to a property-based approach and extend the rule of functional equivalence, which already characterizes home and border searches, to digital papers. In ascertaining who owns digital documents and records, the Court can employ a but for analysis, asking whether the material would exist but for the right-holder’s actions. To determine whether, by providing access to information, the right-holders divest themselves of their ownership interest in the data, as Justice Gorsuch recognized in Carpenter, the law of bailment and positive law can play a crucial role. English common law has long recognized that possession is insufficient to extinguish a property owner’s residual rights. The approach advocated has the advantage of clarity, adaptation to the modern world, and the restoration of core Fourth Amendment rights protected at the founding.

Highly recommended.

Daly on Executive Power in the United Kingdom

Paul Daly (University of Ottawa - Common Law Section) has posted Executive Power in the United Kingdom on SSRN.  Here is the abstract:

This paper, written for a pan-European collection edited by Marcel Morabito (Sciences Po) is about the evolution of executive power in the United Kingdom. My goal is to describe the evolution that has taken place, sweeping in broad strokes from the Glorious Revolution of the 17th century to the present day.

In Part I, I begin with a difficult problem: how to identify executive power in the British Constitution. Given the nature of Britain’s constitutional tradition, there is no neatly labeled and packaged “executive”. Rather, a rough approximation to the “executive” in other legal systems can be made only by carefully scrutinizing the United Kingdom’s constitutional arrangements.

In Part II, I turn to accountability. I begin by introducing a distinction between political and legal accountability. Very broadly speaking, political accountability concerns the accountability of the executive to Parliament (the body which sits in Westminster Palace), whilst legal accountability relates to judicial review of executive action by the courts. I describe the interaction between political and legal accountability by reference to the recent decision of the United Kingdom Supreme Court in the Case of Prorogations. I then trace the historical evolution of political and legal accountability. On the political side, Parliament won its pre-eminence in the constitutional tumult of the 17th century. Parliament’s legitimacy, both for exercising legislative authority and holding the executive to account, was strengthened by progressive extensions of the franchise before, in the 20th century, universal adult suffrage was achieved and the House of Commons became a genuinely popularly representative body. On the legal side, the 17th century was again a critical period, with early decisions establishing the primacy of the courts in determining the existence and extent of prerogative powers and the emergence of the “prerogative writs” as a means for controlling governmental authority. Later on, the prerogative writs were retrofitted to a growing apparatus of public administration, especially in the 20th century. Today, the superior courts sitting at the Royal Courts of Justice stand ready to assess the legality, rationality and procedural propriety of all state action, including governmental decision-making.

In Part III, I critically assess accountability in the contemporary British Constitution. I discuss, on the one hand, the fear that the executive has come to dominate Parliament in recent decades, with power increasingly centralized in the office of the Prime Minister. I then discuss, on the other hand, the myriad ways in which the executive is accountable, not just to Parliament and the courts, but to an increasingly broad range of actors in traditional and social media, civil society and political parties. Political and legal accountability remain central – not least because what happens in the media, civil society and political parties influences what happens in Parliament and the courts – but they do not represent the full picture of executive accountability in the United Kingdom. Executive accountability has evolved considerably in the British Constitution over the centuries, embedding the government of the day in a web of accountability mechanisms, ensuring it is accountable to Parliament, the courts and the populace at large.

Miotto on "Coercion and the Nature of Law" by Himma

Lucas Miotto (University of Maastricht) has posted Ken Himma on Coercion and the Nature of Law [Book Review] (Law and Philosophy) on SSRN.  Here is the abstract:

Book Review of Kenneth E. Himma, Coercion and the Nature of Law. (New York: Oxford University Press, 2020), pp. 288

Recommended.

Legal Theory Lexicon: Virtue Jurisprudence

Introduction

Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's moral philosophy have had a profound influence on the idea of fairness and on the conception of rights that is at the heart of deontological legal theory. Utilitarianism and the law reform agenda of Jeremy Bentham provide an important inspiration for the normative version of law and economics. But if you recently studied moral philosophy as an undergraduate or in graduate school, you might notice that something is missing. The moral philosophy pie can be cut in many ways, but the conventional slicing divides normative moral theory into three kinds: (1) deontological moral theories (e.g. Kant and contractualism), (2) consequentialist moral theory (e.g. utilitarianism and welfarism), and (3) aretaic moral theories (e.g. virtue ethics). Recently, however, a variety of legal theorists have begun to consider the implications of aretaic (virtue-centered) moral theory for the law.

This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory.

Modern Moral Philosophy and Contemporary Legal Theory

The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post.

Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy.

Virtue Ethics and Legal Theory

There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics.

An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. A growing number of legal scholars have discussed virtue ethics in their work.

Towards a Virtue Jurisprudence

A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following:

• Virtue ethics has implications for an account of the proper ends of legislation. If the aim of law is to make citizens virtuous (as opposed to maximizing utility or realizing a set of moral rights), what are the implications for the content of the laws?
• Virtue ethics has implications for legal ethics. Current approaches to ethical lawyering emphasize deontological moral theory, i.e. duties to clients and respect for client autonomy, and these deontological approaches are reflected in the various codes of professional conduct that have been devised for lawyers, judges, and legislators. How can we reconceive legal ethics from a virtue-centered perspective?
• Accounts of the virtue of justice (in particular, Aristotle’s and Aquinas’s theories of natural justice) have implications for debates between natural lawyers and legal positivists over the nature of law.

Much recent work on virtue jurisprudence has focused on the relationship between virtue and particular areas of substantive law.  In the bibliography for this entry, you will find articles that discuss virtue and contract law and aretaic approaches to property law.

In this Legal Theory Lexicon post, however, I will discuss only one aspect of virtue jurisprudence--a virtue-centered theory of judging in general and the virtue of justice in particular. Virtue-centered theories of judging answer the question: How should judges decide the controversies that are presented to them? A virtue-centered theory of judging provides an answer along the following lines: Judges should decide cases in accord with the virtues, or judges should render the decisions that would be made by a virtuous judge.

A Virtue-Centered Theory of Judging

How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.

The Thin Theory of Judicial Vice--Begin with the assumption that humans have characters. More particularly, let’s assume that humans have dispositional traits that incline them to behave in more or less predictable ways. Our vocabulary is rich with words to describe such traits. We use terms like “coward,” “procrastinator,” “reliable,” “hard-working,” “studious,” “curious,” “sensitive,” and so forth. Following Aristotle, let’s sort the traits, picking out those which we count as human excellences, “virtues,” and those which we count as defects, “vices.” Let’s set the virtues and any traits that are neutral to the side, and focus on the defects—traits like cowardice, gluttony, avariciousness, foolishness, and so forth.

Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging.

We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them.

There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office.

What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices.

The Thin Theory of Judicial Virtue--The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.

A Preliminary List of the Judicial Virtues So let's make a tentative list of judicial virtues:

Judicial Sobriety--Sober as a judge" is the say that expresses the idea that judges should have what was classically called the virtue of temperance. Good judging requires that one’s desires be in order. This is clear when the temperate judge is contrasted to the judge who lacks the ability to control her appetites. Judges who care too much for their own pleasures are prone to temptation; they are likely to be swayed from the course of reason and justice by the temptations of pleasure. A libertine judge may indulge in pleasures that interfere with the heavy deliberative demands of the office. Hence, the saying “sober as a judge,” reflects the popular understanding that excessive indulgence in hedonist pleasures would interfere with excellence in the judicial role.

Judicial Courage--A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice.

Judicial Temperament--A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner.

Judicial Intelligence--The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law.

Judicial Wisdom--The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis.

This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom.

Beyond a Thin Theory of Judicial Virtue

A thin theory of judicial virtue should prove uncontroversial because it avoids the tough questions about judging. Formalists and realists, conservatives and liberals—all can endorse a thin theory of judicial virtue, because thin theories don’t answer hard questions. We can distinguish thin theories of judicial virtue from theories that are “thick.” A thick theory of judicial virtue expands the list of judicial excellences to include characteristics of mind and will that are controversial. Corresponding to any particular normative theory of judging we can postulate a thick theory of judicial virtue that specifies those dispositions and capacities that are required for excellent judging according to the criteria provided by the particular theory.

An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind.

Instrumental and Virtue-Centered Theories

Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it.

A Virtue-Centered Theory

So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions:

• A judicial virtue is a naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make correct decisions. The judicial virtues include but are not limited to temperance, courage, good temper, intelligence, wisdom, and justice.
• A virtuous judge is a judge who possesses the judicial virtues.
• A virtuous decision is a decision made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision.
• A lawful decision is a decision that would be characteristically made by a virtuous judge in the circumstances that are relevant to the decision. The phrase “legally correct” is synonymous with the phrase “lawful” in this context.

The central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.

Conclusion

Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice.

For a short introduction to my own work, check out Virtue Jurisprudence: An Aretaic Theory of Judging and Natural Justice.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics

Bibliography

• Virtue Jurisprudence (edited by Colin Farrelly & Lawrence B. Solum, Palgrave-Macmillan 2008).
• Chapin Cimino, Virtue and Contract Law (2010).
• Chapin Cimino, Public Law, Public Consequences, and Virtue Jurisprudence (2010).
• Eric Claeys, Virtue and Rights in American Property Law (2009).
• Sherman J. Clark, Neoclassical Public Virtues: Towards an Aretaic Theory of Law-Making (and Law Teaching) (2010).
• Colin Farrely & Lawrence B. Solum, eds., Virtue Jurisprudence (Palgrave 2008).
• Kyron Huigens, Nietzsche and Aretaic Legal Theory (2003).
• Eduardo M. Penlaver, Land Virtues (2008).
• Frederick Schauer, Must Virtue Be Particular? (2010).
• Lawrence B. Solum Virtue Jurisprudence: An Aretaic Theory of Judging (2003).
• Lawrence B. Solum, Natural Justice (2006).
• Ekow N. Yankah, Virtue's Domain (2008).
• Ekow N. Yankah, The Law of Duty and the Virtue of Justice (2008).
• Law, Virtue and Justice (Edited by Amalia Amaya and Ho Hock Lai, Hart Publishing 2012).
• Aristotle and The Philosophy of Law: Theory, Practice and Justice (Ius Gentium: Comparative Perspectives on Law and Justice) (Edited by Liesbeth Huppes-Cluysenaer & Nuno M.M.S. Coelho, Springer 2013.

Resources on the Web

• Virtue Jurisprudence on Wikipedia.

(This entry last revised on September 12, 2021.)

Legal Theory Bookworm: "Humane" by Moyn

The Legal Theory Bookworm recommends Humane: How the United States Abandoned Peace and Reinvented War by Samuel Moyn.  Here is a description:

In the years since 9/11, we have entered an age of endless war. With little debate or discussion, the United States carries out military operations around the globe. It hardly matters who’s president or whether liberals or conservatives operate the levers of power. The United States exercises dominion everywhere.

In Humane: How the United States Abandoned Peace and Reinvented War, Samuel Moyn asks a troubling but urgent question: What if efforts to make war more ethical―to ban torture and limit civilian casualties―have only shored up the military enterprise and made it sturdier? To advance this case, Moyn looks back at a century and a half of passionate arguments about the ethics of using force. In the nineteenth century, the founders of the Red Cross struggled mightily to make war less lethal even as they acknowledged its inevitability. Leo Tolstoy prominently opposed their efforts, reasoning that war needed to be abolished, not reformed―and over the subsequent century, a popular movement to abolish war flourished on both sides of the Atlantic. Eventually, however, reformers shifted their attention from opposing the crime of war to opposing war crimes, with fateful consequences.

The ramifications of this shift became apparent in the post-9/11 era. By that time, the US military had embraced the agenda of humane war, driven both by the availability of precision weaponry and the need to protect its image. The battle shifted from the streets to the courtroom, where the tactics of the war on terror were litigated but its foundational assumptions went without serious challenge. These trends only accelerated during the Obama and Trump presidencies. Even as the two administrations spoke of American power and morality in radically different tones, they ushered in the second decade of the “forever” war.

Humane is the story of how America went off to fight and never came back, and how armed combat was transformed from an imperfect tool for resolving disputes into an integral component of the modern condition. As American wars have become more humane, they have also become endless. This provocative book argues that this development might not represent progress at all.

And from the reviews:

"Smart and provocative . . . Arriving 20 years after 9/11, as the United States has withdrawn its troops from Afghanistan, Humane encourages readers to ask central questions too often lost amid the chatter of the foreign policy establishment." ―Jennifer Szalai, The New York Times

"Moyn offers a sorely needed history of how war has become palatable . . . The brilliance of Moyn’s [book] is in how [it] wrest[s] control of the dominant narratives that have gripped the public imagination in the post-9/11 years, and in particular, the country after Trump." ―Rozina Ali, American Prospect

“In this profound and deeply disturbing book, Samuel Moyn shows how efforts to curb war's brutality―to make it more humane―find the United States today caught in a bind where war has become perpetual. As technology further dehumanizes war's conduct, this bind will become increasingly difficult to escape.” ―Andrew Bacevich, president of the Quincy Institute for Responsible Statecraft

“Humane is a deeply original, powerfully argued, mind-changing book. I predict it will become an activist Bible for Gen Z, in the same way that Michael Walzer’s Just and Unjust Wars guided an earlier generation of anti-war thinkers and protesters.” ―Anne-Marie Slaughter, CEO of New America

“This is what books are for: to change our minds. Samuel Moyn has written a surprising, sharp, and deeply compelling reflection on the price of making war humane.” ―Daniel Immerwahr, author of How to Hide an Empire: A History of the Greater United States

“History at its finest, Samuel Moyn’s Humane recasts the iconic narratives of warfare, unearthing the ideas that led to today’s forever wars. Sweeping and rich in detail, Humane taps loudly at the conscience of the complacent, sounding a clarion call for peace.” ―Karen Greenberg, author of Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump

“We tend to think of the rise of humanitarian laws constraining the exercise of force as an unalloyed good. But Samuel Moyn’s stunning new book, Humane, fundamentally upends this conventional wisdom. In the process, Moyn also recovers the now long-forgotten abolitionist tradition, which sought to end war rather than to reform it. This profound historical retelling is an essential and groundbreaking contribution.” ―Aziz Rana, author of The Two Faces of American Freedom

“In gripping prose, one of our boldest intellectuals and most trenchant critics upends the conventional stories that are told about law, progress, and war. Humane exposes the deceptive promise of humanization and its role in supporting the clinically legalized wars of our future. This book is a call for moral and political engagement that should be very widely read.” ―Naz Khatoon Modirzadeh, founding director of the Harvard Law School Program on International Law and Armed Conflict

“This is a singularly important book by a singularly incisive thinker. How, Samuel Moyn asks, might we imagine a more moral, generous, efficacious, and just plain sensible approach to the end of violence and the alleviation of human suffering?” ―Walter Johnson, professor of history at Harvard University and author of The Broken Heart of America: Saint Louis and the Violent History of the United States

Download of the Week: "Grounding Legal Proof" by Pardo

The Download of the Week is Grounding Legal Proof by Michael S. Pardo.  Here is the abstract:

When facts are proven within the formal process of legal proof, in virtue of what are they proven? This deceptively simple question is both a matter of enormous practical importance and a matter of intense, ongoing dispute within evidence scholarship. A conventional story purports to answer this question in terms of probabilistic facts (or, alternatively, in terms of beliefs about probabilistic facts). An alternative to this conventional story answers this question in terms of explanatory facts (facts about the relationships between possible explanations, evidence, and disputed events).

This article examines legal proof, and the debates in legal scholarship, through the lens of “grounding.” In employing this perspective, one asks: in virtue of what are facts proven within legal proof? Another way of asking this question is to ask: what grounds the fact that a disputed fact is proven, when it is proven? This article argues for a general thesis and a specific thesis. The general thesis is that the philosophical literature on grounding provides a useful analytical framework for understanding both legal proof and the ongoing debates in legal scholarship. The specific thesis is that when facts are proven within the process of legal proof, they are proven in virtue of various explanatory facts. The article concludes by discussing some of the implications of the analysis for philosophers analyzing the epistemology of legal proof.

Highly recommended.  Download it while it's hot!

If you are unfamiliar with the philosophical concept of grounding (or "metaphysical grounding"), here is a good introduction.  More work on the implications of this idea for law is in the works.

Wilson on Diversifying Prosecutors

Melanie D. Wilson (University of Tennessee College of Law) has posted The Common Prosecutor (Loyola University Chicago Law Journal, Forthcoming) on SSRN.  Here is the abstract:

This is a symposium piece stemming from Loyola University of Chicago Law Journal's Criminal Justice Symposium and my engagement with a panel of experts discussing "Wrongful Convictions, Pleas, and Sentencing." The essay focuses on the role of prosecutors in the system. It contends that we would benefit significantly if more law school graduates--of every ideology, race, religion, gender identity, background, and other characteristics--served (at least a year or two) as prosecutors. We have witnessed the rise of the "progressive prosecutor." Now, it is time for more "common prosecutors" to take a central role in the system.

The homogeneity of prosecutors is well-known and well-documented. As of October, 2020, for instance, 85% (79 of 93) U.S. attorney's offices were led by white men. Yet, the people investigated and prosecuted for crimes are disproportionately people of color. And, LGBTQ and people living in poverty are also disproportionately targeted by our justice system.

Diversifying the office of the prosecutor with more "common prosecutors" is a big step forward toward improving several flaws in our current system. Adding this diversity among prosecutors will improve prosecutorial decision making, increase public confidence in the system, encourage more productive police-citizen interactions, and reduce prosecutor and law enforcement bias.

Howard & Livermore on Climate-Society Feedback Effects

Peter Howard (New York University (NYU) - Institute for Policy Integrity) & Michael A. Livermore (University of Virginia School of Law) have posted Climate-Society Feedback Effects: Be Wary of Unidentified Connections (International Review of Environmental and Resource Economics, 2021, 15: 1–61) on SSRN.  Here is the abstract:

Feedbacks within the climate-economy system are complex. The research analyzing the relationship between human activities and the climate is considerable, with particular focus on intra-system feedback effects: environmental tipping points, and climate-triggered social tipping points, like migration, to a lesser extent (Robert Kopp et al., 2016; Kees van Ginkel et al., 2018). Due to their cross-disciplinary nature (Angela Guerrero et al., 2018), two-way interactions between the environment and society, whereby movement in either system can trigger inter-system feedbacks (Steven Lade et al., 2013; Johanna Yletyinen et al., 2019) as humans respond to a changing environment thereby further changing the environment, have only recently received attention by a growing inter-disciplinary research community. With the aim of improving climate policy and its tools, such as the social cost of carbon, we describe these social-ecological system (SES) feedbacks and place them in the existing taxonomy for tipping points applied by mainstream climate-economy models. Drawing lessons from SES research and related interdisciplinary literatures, we discuss the value of and method by which to modify social-cost integrated assessment models (SC-IAMs), like Nordhaus’ DICE. As it is critical that climate policy include these risks to the stability of the climate-economy system, we conclude with a research agenda for the identification, quantification, and integration of climate-society feedbacks into SC-IAMs.

Recommended.

Blocher & Gulati on the Navassa & the Law of the Territories

Joseph Blocher (Duke University School of Law) & Mitu Gulati (University of Virginia School of Law) has posted Navassa: Property, Sovereignty, and the Law of the Territories (Yale Law Journal, Forthcoming) on SSRN.  Here is the abstract:

The United States acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the history of the law of the territories—a story that continued 50 years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States. Modern scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights, citizenship, and self-determination. But the property framework, and accompanying private-law tools, can also play an important role in understanding and dismantling the existing colonial structure.

I had not known about the Guano Islands Act!  Highly recommended.  Download it while it's hot!

Pardo on Grounding & Legal Proof

Michael S. Pardo (Georgetown University Law Center) has posted Grounding Legal Proof (Philosophical Issues, forthcoming) on SSRN.  Here is the abstract:

When facts are proven within the formal process of legal proof, in virtue of what are they proven? This deceptively simple question is both a matter of enormous practical importance and a matter of intense, ongoing dispute within evidence scholarship. A conventional story purports to answer this question in terms of probabilistic facts (or, alternatively, in terms of beliefs about probabilistic facts). An alternative to this conventional story answers this question in terms of explanatory facts (facts about the relationships between possible explanations, evidence, and disputed events).

This article examines legal proof, and the debates in legal scholarship, through the lens of “grounding.” In employing this perspective, one asks: in virtue of what are facts proven within legal proof? Another way of asking this question is to ask: what grounds the fact that a disputed fact is proven, when it is proven? This article argues for a general thesis and a specific thesis. The general thesis is that the philosophical literature on grounding provides a useful analytical framework for understanding both legal proof and the ongoing debates in legal scholarship. The specific thesis is that when facts are proven within the process of legal proof, they are proven in virtue of various explanatory facts. The article concludes by discussing some of the implications of the analysis for philosophers analyzing the epistemology of legal proof.

Highly recommended.  Download it while it's hot!

If you are unfamiliar with the philosophical concept of grounding (or "metaphysical grounding"), here is a good introduction.  More work on the implications of this idea for law is in the works.

Gutierrez on Soft Law & AI Governance

Carlos Ignacio Gutierrez (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Transitioning from Ideas to Action: Trends in the Enforcement of Soft Law for the Governance of Artificial Intelligence (IEEE - Transactions on Technology and Society) on SSRN.  Here is the abstract:

As a governance tool, the advantages of soft law (e.g. lack of jurisdiction, minimal barriers of entry, and disposition for experimentation) make it a viable alternative to manage emerging technologies that are continuously evolving. A barrier to soft law’s utilization is its most cited weakness, a reliance on the alignment of incentives for its enforcement. Nevertheless, organizations throughout the globe have created mechanisms to ensure that the ideas within programs are transformed into action. This article explores the trends in the use of such mechanisms within soft law programs to govern methods and applications of artificial intelligence (AI). Using a database of over 600 AI soft law programs, this piece identifies the diverse array of options available to organizations in their efforts to implement and enforce their programs.

Parker on Meta-Regulation & Ecological Corporate Compliance

Christine Parker (Melbourne Law School, University of Melbourne) has posted From Responsive Regulation to Ecological Compliance: Meta-regulation and the Existential Challenge of Corporate Compliance (Chapter 4 in D. Daniel Sokol & Benjamin van Rooij (eds), The Cambridge Handbook of Compliance, Cambridge University Press, 2021, pp37-49) on SSRN.  Here is the abstract:

This chapter revisits the significance of responsive regulation for theories of compliance. It shows how responsive regulation’s theory of compliance recognises both multiple motivations for compliance and plural actors who help negotiate and construct compliance. It argues that responsive regulation theory implies responsive compliance and that this can help build possibilities for deliberative democratic responsibility and accountability of both businesses and regulators. This is the idea that Parker previously labelled the meta-regulation of the “open corporation”. This chapter concludes that since business activity, and indeed human development, now face the existential challenge of socio ecological disruption and collapse in which profit oriented commercial activity is a significant driver, theories of compliance need to expand to concern themselves with how whole markets and industries can be made responsive to both social and ecological embeddedness. Regulatory compliance scholars need to pay attention to how networks of interacting business, government and civil society and social movement actors can influence business activity profoundly enough to shift the very nature of “business as usual”. The chapter therefore proposes the need for “ecological compliance” as a development of Ayres and Braithwaite’s analysis of compliance.

Moffat, Kamin, & Maffett on Cannabis & Trademark

Viva Moffat (University of Denver Sturm College of Law), Sam Kamin (University of Denver Sturm College of Law), & Timothy Maffett (University of Denver - Sturm College of Law) have posted Cannabis, Consumers, and the Trademark Laundering Trap on SSRN.  Here is the abstract:

At the moment, cannabis companies cannot get trademark protection for their marijuana and marijuana-related products because the “lawful use” doctrine limits federal trademark protection to goods lawfully sold in commerce. Given that the drug remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers of marijuana. Without trademark rights, a cannabis company in one state can simply use the brand name of a prominent company in another state and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. As the cannabis industry has grown, this issue has only become more acute; the current approach of the United States Patent & Trademark Office (PTO) and the federal courts undermines trademark law’s consumer protection and fair competition goals.

Several years ago, we proposed a solution to the unavailability of trademark protection during federal prohibition, one we suggested would help cannabis companies and cannabis consumers bridge the gap from the current period of legal ambiguity through full marijuana legalization. We coined the phrase “trademark laundering” to describe the practice of applying for federal trademark protection for a mark placed on legal products and then using that mark on both legal and illegal goods – on both t-shirts and marijuana, for example. As we anticipated, the practice has indeed taken off, but it has been a success only on the surface.

This article examines how the PTO and the courts have mishandled marijuana marks and identifies how they have interpreted and deployed the lawful use doctrine in ways that undermine and conflict with trademark’s stated goals. Given that the PTO is unlikely to abandon the lawful use doctrine any time soon, we propose changes to the way the PTO applies that doctrine in the trademark registration process, as well as changes to the courts’ consideration of trademark disputes involving cannabis companies. These changes will ensure that both consumers and marijuana businesses are protected as the United States transitions from marijuana prohibition to a post-prohibition federal regulatory regime.

Landolfi & Hviding on the Congressional Review Act & Chevron

Andrew Landolfi (The George Washington University Law School) & Carly L. Hviding (George Mason University, Antonin Scalia Law School) have posted Reframing the Question: Why Chevron - And Not a One Size Fits All Interpretation of 'Substantially the Same' - Should Guide a Court’s Interpretation of the CRA’s Limitations on Future Rulemaking (Campbell Law Review, Vol. 44, Forthcoming) on SSRN.  Here is the abstract:

The Congressional Review Act (the “CRA”) is a Congressional oversight tool used to overturn rules issued by federal agencies. Beyond the immediate effect of blocking an undesirable agency rule, the CRA bars an agency from issuing another rule in “substantially the same form” as the disapproved rule. But the scope of this provision’s future effect on agency rulemaking remains unclear: the statute is silent as to what criteria should be considered in evaluating whether or when a subsequent rule falls into the “substantially the same” category, and the provision has gone untested in court.

Rather than proposing a uniform interpretation of "substantially the same," this Article proposes courts adopt a case-by-case approach to allegations that an agency is barred from enacting a particular rule due to a prior CRA resolution. Specifically, the Article argues that courts should apply Chevron and, where appropriate, defer to an agency's conclusion that a rule is not substantially the same as a rule blocked by an earlier CRA resolution. In reaching this conclusion, the Article contends a CRA resolution effectively amends an agency's organic statute, thereby permitting courts to apply Chevron to an agency's determination of whether a rule does or does not fall within the CRA's prohibitive scope.

Lao on Merger Analysis & Intent

Marina Lao (Seton Hall University School of Law) has posted Reimagining Merger Analysis to Include Intent (Emory Law Journal, Vol. 71, No. 5, 2022 (forthcoming)) on SSRN.  Here is the abstract:

A broad swath of policymakers, antitrust and economic scholars, and practitioners tend to agree that section 7 of the Clayton Act, as it is applied, has been deficient in identifying and prohibiting anticompetitive mergers, particularly those involving the acquisition of nascent competitors in digital markets. An important reason for this problem is that while the language of the Clayton Act is flexible and broad, its implementation has evolved into a narrow, economic-focused analysis that requires (or expects) quantitative evidence, statistical tests, and other empirical methodologies to show competitive harm and establish a prima facie case. This approach, difficult to apply even under ordinary circumstances, sets an unusually high bar for plaintiffs where the mergers involve dynamic technology markets in which firms compete more on innovation than on price. That is because the economic tools – reasonably effective in assessing price effects – are not well equipped to measure and predict innovation harms in the long run. The problems are exacerbated when dominant firms acquire nascent competitors because the potential competitive impact of their acquisition is necessarily even more uncertain and, therefore, the quantifiable metrics even less helpful. The inherent difficulties of proof may be a reason Facebook faced no antitrust challenge when it acquired Instagram and WhatsApp about a decade ago.

In this paper, I make a case for reimagining merger analysis to include intent, to help satisfy the plaintiff’s evidentiary burden and strengthen merger enforcement. Insisting on, or strongly preferring, empirical data to demonstrate effects of a proposed acquisition when that data is unavailable means that the merger law will fail in its core mission for at least certain types of mergers. The better approach, therefore, is to be open to the use of other sources of evidence—namely intent--to supplement standard economic analysis. Intent evidence has probative value in predicting the competitive effects of mergers and acquisitions, and therefore can play a useful role distinguishing between mergers that are likely anticompetitive and those that are not.

Subjective statements of an acquiring firm’s senior management expressing their insights regarding the market, including how that market is likely to evolve and who might pose a future competitive threat, would greatly help in a comparative assessment of how a market would probably look in the future both with and without the acquisition. And that assessment is important in determining whether the proposed acquisition is likely to substantially reduce competition. The paper will illustrate this by examining the collection of emails and statements made by Facebook’s executives relating to the company’s famous acquisitions of Instagram and WhatsApp. The insights on future competition facing Facebook gleaned from these statements would not have been revealed from a purely economic analysis, no matter how rigorous. Had the Federal Trade Commission considered those statements when it reviewed the mergers, it might have decided to challenge those acquisitions, instead of clearing them.

The consideration of intent evidence should not require legislative action as no major case has barred its use, though many courts and commentators today are dismissive of its value. While critics have raised a few issues that deserve some attention, this paper argues that the objections raised are overstated. Nevertheless, the paper also proposes ways to minimize the risks of unreliability and other concerns that critics have raised.

Chander on Sovereignty & Internet Regulation

Anupam Chander (Georgetown University Law Center) & Haochen Sun (The University of Hong Kong - Faculty of Law) have posted Sovereignty 2.0 on SSRN.  Here is the abstract:

Digital sovereignty—the exercise of control over the internet—is the ambition of the world’s leaders, from Australia to Zimbabwe, a bulwark against both foreign state and foreign corporation. Governments have resoundingly answered first-generation internet law questions of who if anyone should regulate the internet—they all will. We now confront second generation questions—not whether, but how to regulate the internet. We argue that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy’s dreaded antagonist. As international law scholar Louis Henkin taught us, sovereignty can insulate a government’s worst ills from foreign intrusion. Assertions of digital sovereignty, in particular, are often double-edged—useful both to protect citizens and to control them. Digital sovereignty can magnify the government’s powers by making legible behaviors that were previously invisible to the state. Thus, the same rule can be used to safeguard or repress--a feature that legislators across the Global North and South should anticipate by careful checks and balances.

Highly recommended.

Toomey on a Narrative Coherence Theory of Legal Capacity

James Toomey (Harvard University - Harvard Law School) has posted Narrative Capacity (North Carolina Law Review, Vol. 100, Forthcoming 2022) on SSRN.  Here is the abstract:

The doctrine of capacity is a fundamental threshold to the protections of private law. The law only recognizes private decision-making—from exercising the right to transfer or bequeath property and entering into a contract to getting married or divorced—made with the level of cognitive functioning that the capacity doctrine demands. When the doctrine goes wrong, it denies individuals, particularly older adults, access to basic private-law rights on the one hand and ratifies decision-making that may tear apart families and tarnish legacies on the other.

The capacity doctrine in private law is built on a fundamental philosophical mismatch. It is grounded in a cognitive theory of personhood, and determines whether to recognize private decisions based on the cognitive abilities thought by philosophers to entitle persons in general to unique moral status. But to align with the purposes of the substantive doctrines of property and contract, private-law capacity should instead be grounded in a narrative theory of personal identity. Rather than asking whether a decision-maker is a person by measuring their cognitive abilities, the doctrine should ask whether they are the same person by looking to the story of their life.

This Article argues for a new doctrine of capacity under which the law would recognize personal decision-making if and only if it is linked by a coherent narrative structure to the story of the decision-maker’s life. Moreover, the Article offers a test for determining which decisions meet this criterion and explains how the doctrine would work in practice.

Very interesting.  Highly recommended.

Blutman on Sovereignty & the EU

László Blutman (University of Szeged - Faculty of Law) has posted The Language of Sovereignty and the European Union: Old Dilemmas in New Clothes (In Kajtár, G. – Sonnevend, P. (eds.): A nemzetközi jog, az uniós jog és a nemzetközi kapcsolatok szerepe a 21. században: tanulmányok Valki László tiszteletére. [The role of international law, EU law and international relations in the 21st century: studies in honor of László Valki] Budapest: ELTE) on SSRN.  Here is the abstract:

The analysis of Member State sovereignty in relation to the European Union is largely determined by some theoretical assumptions. The author briefly outlines some important dilemmas that greatly influence the conclusions and identifies three typical situations where the reference to sovereignty plays certain role in the relationship between the European Union and the Member States. First, at theoretical level, many studies aim to examine EU Member State sovereignty as it stands. Most of these reach such conclusion that the sovereignty of Member States is gradually diminishing or even disappearing within the European integration and seek to present and analyze the processes and factors that lead to this. Second, at both theoretical and practical levels, one often encounters the incidental use of the word. Here, the reference to sovereignty is only ancillary, outside the focus of the message (facial use of the word). Third, there is a clear trend (primarily in public discourse) where sovereignty serves as a counterpoint to EU actions. These actions are contrasted with the sovereignty of the Member States, and criticisms of the Union are based in part on sovereignty. This third aspect provides the author with an opportunity to point out the characteristics of two distinct intellectual trends, sovereignism and unionism (European federalism).